A/HRC/19/61
under its jurisdiction. In its general comment No. 20, the Human Rights Committee stated
that an effective remedy for allegations of torture and other forms of ill-treatment
constituting a violation of article 7 required prompt and impartial investigation by
competent authorities. Additionally, the right to an effective remedy established by article 2
of the International Covenant on Civil and Political Rights is widely understood to include
the obligation to investigate.
50. The Human Rights Committee, in its general comment No. 31, noted that, in addition
to the State establishing appropriate judicial mechanisms, administrative mechanisms were
particularly required to give effect to the general obligation to investigate allegations of
violations promptly, thoroughly and effectively through impartial bodies. Failure by a State
party to investigate allegations of violations could in and of itself give rise to a separate
breach of the Covenant.
51. According to the Principles on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the main
purposes of effective investigation and documentation of torture and other cruel, inhuman
or degrading treatment or punishment are:
(a)
Clarification of the facts and establishment and acknowledgement of
individual and State responsibility for victims and their families;
(b)
Identification of measures needed to prevent recurrence;
(c)
Facilitation of prosecution and/or, as appropriate, disciplinary sanctions for
those indicated by the investigation as being responsible and demonstration of the need for
full reparation and redress from the State, including fair and adequate financial
compensation and provision of the means for medical care and rehabilitation. 31 The
characteristics of an effective investigation include the establishment of a mechanism that
can receive and investigate complaints, 32 competent and impartial investigators, careful
documentation of crimes perpetrated,33 and adequate protection of victims, witnesses and
those conducting investigations.34 Only when an allegation is manifestly ill-founded should
a public official implicated be allowed to retain office pending the outcome of an
investigation and any subsequent legal or disciplinary proceedings. 35
52. The scope and type of information uncovered by commissions of inquiry are often
different from the information that is disclosed through formal criminal investigation and
prosecution. Whereas prosecutions are intended to fulfil a State’s duty to achieve individual
accountability, they may only bring to light a limited amount and type of information. Once
an allegation of torture and other forms of ill-treatment is referred to competent authorities
for the purpose of prosecution, the complete results of the ensuing investigation are not
always disclosed for public record. 36 While focused on accountability, commissions of
inquiry also delve more deeply and broadly into the relevant facts and circumstances that
led to the violations than a prosecutorial investigative authority would. In this way, a
commission of inquiry can help to establish a more complete picture of how and why
torture occurred by analysing not just the human, legal and political consequences of a State
policy of torture but also by revealing insights into wider patterns of violations, institutional
involvement and responsibility, and command responsibility, as well as provide valuable
background information and leads to witnesses (see for example the Gibson Inquiry).
31
32
33
34
35
36
14
General Assembly resolution 55/89, annex, para. 1.
E/CN.4/2003/68.
A/62/221, para. 52.
General Assembly resolution 55/89, para. 3(b).
E/CN.4/2003/68, para. 2.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 7.
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