The Standards of the investigation
In S.M. v. Croatia, the Court summarised its case-law on the procedural obligation under the converging principles of Articles 2, 3 and 4 of the Convention. It noted, in particular, that whereas the general scope of the State’s positive obligations might differ between cases where the treatment contrary to the Convention has been inflicted through the involvement of State agents and cases where violence is inflicted by private individuals, the procedural requirements are similar (Sabalić v. Croatia,).
In particular, the authorities have an obligation to act as soon as an official complaint has been lodged. However, even in the absence of an express complaint, an investigation should be undertaken if there are other sufficiently clear indications that torture, or ill-treatment might have occurred. The authorities must act of their own motion once the matter has come to their attention (Gldani Congregation of Jehovah’s Witnesses and Others v. Georgia,).
The procedural obligation under Article 3 continues to apply in difficult security conditions, including in a context of armed conflict. Even where the events leading to the duty to investigate occur in a context of generalized violence and investigators are confronted with obstacles and constraints which compel the use of less effective measures of investigation or cause an investigation to be delayed, the fact remains that Article 3 requires that all reasonable steps must be taken to ensure that an effective and independent investigation is conducted (Mocanu and Others v. Romania ).
For an investigation to be effective, the institutions and persons responsible for carrying it out must be independent from those targeted by it. This means not only a lack of any hierarchical or institutional connection but also practical independence (Bouyid v. Belgium)
The Court found that the investigation at issue lacked independence where:
- the investigators were military prosecutors who, like the accused (two of whom were generals), were officers in a relationship of subordination within the military hierarchy (Mocanu and Others v. Romania );
- the prosecutor who conducted the investigation had also officially filed criminal charges against the applicant and applied for the applicant’s remand in custody (Boicenco v. Moldova,);
- the investigating authority delegated a major and essential part of the investigation – identification of the perpetrators of the alleged ill‑treatment – to the same authority whose agents had allegedly committed the offence, and then proceeded to rely on its finding that it was not possible to identify the police officers in question, without taking any further action
- the spokesman for the Ministry of Internal Affairs, which was the employer of the investigator in charge of the investigation stated to the media three days after the beginning of the criminal inquiry and without waiting for its conclusions, that the applicant had not been ill-treated by the police and that his allegations were not true (Emin Huseynov v. Azerbaijan,);
- the investigators conduct lacked the necessary transparency and appearance of independence, due to having failed to take any independent steps, such as interviewing the second applicant, the officers involved and the eyewitnesses or else ordering a forensic examination of the second applicant’s injuries (Đurđević v. Croatia,);
- the investigators established the circumstances of the criminal case relying solely and without any justification on the version of events provided by the police officers, including the alleged perpetrators and their colleagues who were all in some way involved in the events at stake, without even hearing the applicant or any other witnesses (Virabyan v. Armenia,);
- when the prosecutor’s office requested assistance from police who were subject to the same chain of command as the officers under investigation (Baranin and Vukčević v. Montenegro, 2021, § 144).
Conversely, the Court did not find an issue regarding the independence of the investigation in the following circumstances:
- the impugned administrative authority or its employees were not implicated in the case and there was no evidence showing that they lacked independence (X and others v. Bulgaria
- the investigation had notably been carried out, not only by the judiciary authorities in the context of criminal proceedings, but also by an independent administrative authority presenting all the guarantees of independence (P.M. and F.F. v. France,);
- the investigation had been carried out by the State Attorney’s Office, which was both hierarchically and institutionally independent of those targeted by the investigation and that the latter undertook all the investigative measures itself and did not rely on any findings of those who might have lacked the requisite hierarchical or institutional independence (V.D. v. Croatia (no. 2)).
In order to be “effective” an investigation must be adequate. This means that it must be capable of leading to the establishment of the facts and to a determination of whether the force used was or was not justified in the circumstances and of identifying and – if appropriate –punishing those responsible (Labita v. Italy [). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity (Cestaro v. Italy,).
The investigation must be thorough, which means that the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or to use as the basis of their decisions. They must take all reasonable steps available to them to secure the evidence concerning the incident, including, inter alia, eyewitness testimony and forensic evidence. Any deficiency in the investigation which undermines its ability to establish the cause of injuries or the identity of the persons responsible will risk falling foul of this standard (El-Masri v. the former Yugoslav Republic of Macedonia [).
The Court found that the investigation at issue was inadequate where:
- the investigative authorities mostly relied on the statements of the alleged perpetrators and other police officers as well as on internal records of the police when dismissing the applicant’s claims of ill-treatment in the hands of the police (M.F. v. Hungary ; see also Archip v. Romania, where the judicial authorities concluded without providing many details about the actual circumstances and without careful consideration of the facts and circumstances of the incident and the investigating authorities adopted a selective and somewhat inconsistent approach to the assessment of evidence);
- the relevant authorities remained passive and failed to conduct an official investigation, despite credible allegations of ill-treatment brought to their attention (M.S. v. Croatia (no. 2),
- one of the perpetrators of ill-treatment was never formally identified and charged, despite his identification by the applicant (Barovov v. Russia,);
- the domestic authorities failed to identify and question police officers from the specialised unit, wearing masks with no identifying numbers or letters, which took part in the home raid where the applicant claimed to have been ill-treated (Hristovi v. Bulgaria,);
- the relevant authorities committed procedural errors which rendered the principal body of evidence inadmissible, leading to a stalemate in the criminal proceedings (Maslova and Nalbandov v. Russia,).
Conversely, having regard to the various steps undertaken by the domestic authorities, the Court did not find an issue with respect to the adequacy of the investigation in:
- Baklanov v. Ukraine, 2013, which concerned the alleged ill-treatment and bullying of the applicant in the course of his compulsory military service;
- V.D. v. Croatia (no. 2), 2018, which concerned the fresh investigation opened by the State Attorney’s Office in respect of allegations of ill-treatment for which the Court had previously found a violation of Article 3;
- P.M. and F.F. v. France, 2021, which concerned allegations of ill-treatment of the applicants at the hands of the police during interrogation and while in police custody.
Promptness and Reasonable Expedition
Article 3 requires investigations to be prompt and to proceed with reasonable expedition. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating allegations of ill-treatment may generally be regarded as essential to maintain public confidence in their adherence to the rule of law and to prevent any appearance of collusion in or tolerance of unlawful acts (Bouyid v. Belgium).
The Court has found that the domestic authorities have, inter alia, failed to investigate promptly and with reasonable expedition when:
- eight years and four months elapsed at three levels of jurisdiction in criminal proceedings concerning domestic violence against a minor (D.M.D. v. Romania, 2017, § 53; see also
Y. v. Slovenia, 2015, § 99 where more than seven years had elapsed from the time the applicant lodged her complaint about having been sexually abused until the first-instance judgment was rendered);
- in the context of ill-treatment in prison the trial of the warders did not began until five years and eight months after the criminal complaints had been lodged and the proceedings were still pending at the time of the examination of the case before the Court (Indelicato v. Italy,);
- there were unjustified delays in identifying witnesses or taking their statements (Baranin and Vukčević v. Montenegro, Mătăsaru and Saviţchi v. Moldova, 2010,);
- there was unjustified protraction of the criminal proceedings resulting in the expiry of the statute of limitations (Angelova and Iliev v. Bulgaria, 2007, §§ 101-103; see also Barovov v. Russia, 2021, §§ 39 and 42);
- there were delays in the interviewing of a key specialist at the relevant time, failure to reach to clear signs of ill-treatment as well as a long overall period during which not a single judgment was adopted (I.E. v. the Republic of Moldova, 2020, § 52);
- there were delays in obtaining oral evidence from the applicants, who were minors and victims of alleged racially motivated ill-treatment (M.B. and Others v. Slovakia, 2021, §§ 82- 83);
- several investigations and ensuing criminal proceedings into the applicant’s allegations of assault, harassment, threats and ill-treatment – all in the context of domestic violence – were either time-barred or were still pending many years after the events, due to the passivity of the authorities (M.S. v. Italy, 2022, §§ 141 and 150).
Conversely, the Court found that investigations did not contravene to the requirement for promptness and reasonable expedition in the conduct of the investigations when, for example:
- the length of the investigation could be explained by the scope of the inquiries carried out, since numerous hearings, and no less than four expert assessments, were conducted (Ghedir and Others v. France, 2015, § 133);
- where compensation proceedings were very lengthy (15 years) but it did establish the facts surrounding the infliction of grievous bodily harm upon the applicant holding those responsible accountable and awarded her compensation (Isayeva v. Ukraine, 2018, §§ 63- 66);
- despite the relative complexity of the case, which required the questioning of several witnesses, the obtaining of an expert report and other evidence concerning the incident, the investigation lasted in total some six months (V.D. v. Croatia (no. 2), 2018, § 80).
Public scrutiny and the participation of the victim
The investigation must afford a sufficient element of public scrutiny to secure accountability in practice as well as in theory (Al Nashiri v. Romania, 2018, § 641 and the cases cited therein).
Moreover, the victim should be able to participate effectively in the investigation (Bouyid v. Belgium [GC], 2015, § 122 and X and Others v. Bulgaria [GC], 2021, § 189). However, the disclosure or publication of police reports and investigative materials may involve sensitive issues with possible prejudicial effects for private individuals or other investigations. It cannot therefore be regarded as an automatic requirement that a victim or his or her next-of-kin be granted access to the investigation as it progresses. The requisite access may be provided for in other stages of the available procedures and the investigating authorities do not have a duty to satisfy every request for a particular investigative measure in the course of an investigation (Stevan Petrović v. Serbia, 2021,
50. The Court has found that the investigation was not sufficiently accessible to the victim or that it did not allow for adequate public scrutiny where:
- the investigator failed to hear the victims in person or mention their version of events in the decisions which were also not even served on them (Dedovskiy and Others v. Russia, 2008, § 92;
- there was no specific procedure in domestic law granting access to the case file at the pre- trial stages and, in particular, listing the grounds for refusing and granting access, the extent to which a claimant may be given access, the time-limits for consideration of the relevant requests and providing the access (Oleksiy Mykhaylovych Zakharkin v. Ukraine, 2010, § 73);
- the authorities had consistently withheld information about their decisions, or considerably delayed the provision of such information to the applicants, contrary to the explicit requirement of the domestic law (Chernega and Others v. Ukraine, 2019, § 166).
Conversely, the Court found no issue regarding public scrutiny or participation of the victim when adequate information and access to the file, had been given to the victimproviding him with the possibility to indicate facts and propose evidence to be obtained in the investigation (V.D.
v. Croatia (no. 2), 2018, §§ 78).
Prosecution, sanction and compensation Issues
The Court has underlined that the obligation to conduct an effective investigation is an obligation not of result but of means (X and Others v. Bulgaria [GC], 2021, § 186). When the official investigation has led to the institution of proceedings in the national courts, the proceedings as a whole, including the trial stage, must satisfy the requirements of Article 3 of the Convention. This includes the sanctions imposed at the end of those proceedings.
While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, the national courts should not under any circumstances be prepared to allow grave attacks on physical and mental integrity to go unpunished, or for serious offences to be punished by excessively light punishments. The important point for the Court to review, therefore, is whether and to what extent the courts, in reaching their conclusion, might be deemed to have submitted the case to careful scrutiny, so that the deterrent effect of the judicial system in place, and the significance of the role it was required to play in preventing violations of the prohibition of ill-treatment, are not undermined (Sabalić v. Croatia, 2021, § 97).
It follows that, while granting substantial deference to the national authorities and courts in the choice of appropriate sanctions for ill-treatment, the Court must exercise a certain power of review and intervene in cases of manifest disproportion between the gravity of the act and the punishment imposed (Myumyun v. Bulgaria, 2015, § 67).
Linked to this, for an investigation to be effective in practice it is a prerequisite that the State has enacted criminal-law provisions penalising practices that are contrary to Article 3 (Cestaro v. Italy, 2015, § 209).
Where State agents have been charged with offences involving ill-treatment, it is important that they should be suspended from duty while being investigated or tried and should be dismissed if convicted (Gäfgen v. Germany [GC], 2010, § 125; Barovov v. Russia, 2021, § 43).
The Court has also held that, in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases. Furthermore, the manner in which the limitation period is applied must be compatible with the requirements of the Convention.
It is therefore difficult to accept inflexible limitation periods admitting of no exceptions (Mocanu and Others v. Romania [GC], 2014, § 326). This principle has also been extended to acts of violence committed by private individuals, particularly, when they concern grave breaches of fundamental human rights (Pulfer v. Albania, 2018, § 83 in the context of physical assault; E.G. v. the Republic of Moldova, 2021, § 43 in the context of sexual assault and M.S. v. Italy, 2022, § 144 in the context of domestic violence).
Thus, the Court has found a violation under the procedural limb of Article 3 in cases where the application of limitation periods was brought about by the failure of the authorities to act promptly and with due diligence or where prosecutions became time-barred owing to the inadequate characterisation by the domestic authorities of acts of torture or other forms of ill-treatment as less serious offences, leading to shorter limitation periods and allowing the perpetrator to escape criminal liability (Advisory opinion on the applicability of statutes of limitation to prosecution, conviction and punishment in respect of an offence constituting, in substance, an act of torture [GC],§§ 61-62, 2022).
Finally, in cases of wilful ill-treatment by State agents in breach of Article 3, the Court has repeatedly found that two measures are necessary to provide sufficient redress. Firstly, the State authorities must have conducted a thorough and effective investigation capable of leading to the identification and punishment of those responsible. Secondly, an award of compensation to the applicant is required where appropriate or, at least, the possibility of seeking and obtaining compensation for the damage which the applicant sustained as a result of the ill-treatment (Gäfgen v. Germany [GC], 2010, § 116; Razzakov v. Russia, 2015, § 50).
Investigation of hate crimes
The Court has highlighted the specific requirement for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to continuously reassert society’s condemnation of racism in order to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence (Antayev and Others v. Russia, 2014, § 110).
Thus, when investigating violent incidents triggered by suspected racist attitudes, the State authorities are required to take all reasonable action to ascertain whether there were racist motives and to establish whether feelings of hatred or prejudices based on a person’s ethnic origin played a role in the events. Treating racially motivated violence and brutality on an equal footing with cases lacking any racist overtones would be tantamount to turning a blind eye to the specific nature of acts which are particularly destructive of fundamental human rights (Abdu v. Bulgaria, 2014, § 44). The said obligation is part of the responsibility incumbent on States under Article 14 of the Convention taken in conjunction with Article 3, but it is also an aspect of the procedural obligations flowing from Article 3 of the Convention (M.F. v. Hungary, 2017, § 73). It also applies where a given type of treatment incompatible with Article 3 is inflicted by a private individual (Abdu v. Bulgaria, 2014,§ 44).
Moreover, such an investigation concerns not only acts of violence based on a victim’s actual or perceived personal status or characteristics, but also acts of violence based on a victim’s actual or presumed association or affiliation with another person who actually or presumably possesses a particular status or protected characteristic (Škorjanec v. Croatia, 2017, § 56).
Proving racial motivation will often be difficult in practice. The respondent State’s obligation to investigate possible racist overtones to a violent act is an obligation to use best endeavours and not absolute. The authorities must do what is reasonable in the circumstances to collect and secure the evidence, explore all practical means of discovering the truth and deliver fully reasoned, impartial and objective decisions, without omitting suspicious facts that may be indicative of racially motivated violence (Antayev and Others v. Russia, 2014, § 122).
The same considerations arise for violence resulting from, for instance, religious intolerance or for violence motivated by gender-based discrimination or by sexual orientation (Sabalić v. Croatia, 2021, § 94).
More detailed information can be found in the Case-Law Guide on Article 14 and Article 1 of Protocol No. 12 – Prohibition of Discrimination.
Procedural obligations in trans-border contexts
The requirement of effectiveness of the criminal investigation may in some circumstances include an obligation for the investigating authorities to cooperate with the authorities of another State, implying an obligation to seek or to afford assistance. The nature and scope of these obligations will inevitably depend on the circumstances of each particular case, for instance whether the main items of evidence are located on the territory of the Contracting State concerned or whether the suspects have fled there. This means that the States concerned must take whatever reasonable steps they can to cooperate with each other, exhausting in good faith the possibilities available to them under the applicable international instruments on mutual legal assistance and cooperation in criminal matters. Although the Court is not competent to supervise respect for international treaties or obligations other than the Convention, it normally verifies in this context whether the respondent State has used the possibilities available under these instruments (X and others v. Bulgaria [GC], 2021, § 19).
The revival of procedural obligations
A procedural obligation may be revived subsequent to a new development, as the discovery of new evidence or information casting doubt on the results of an earlier investigation or trial (see Egmez v. Cyprus (dec.), 2012, § 63). The nature and extent of any subsequent investigation required by the procedural obligation will inevitably depend on the circumstances of each particular case and may well differ from that to be expected immediately after the ill-treatment has occurred (Jeronovičs v. Latvia [GC], 2016, § 107).