Report | Doc. 15880 | 11 December 2023

Allegations of systemic torture and inhuman or degrading treatment or punishment in places of detention in Europe

Committee on Legal Affairs and Human Rights

Rapporteur : Mr Constantinos EFSTATHIOU, Cyprus, SOC

Origin - Reference to committee: Doc. 15420, Reference 4626 of 24 January 2022. 2024 - First part-session

Summary

Torture and ill-treatment continue to be present in places of detention in Europe. There is a clear gap between the absolute prohibition of this egregious practice and the reality on the ground. The Committee of Ministers and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) have referred to the existence of long-standing structural problems or to the systemic or widespread nature of the problem, with regard to certain States.

Credible reports suggesting that torture and other forms of ill-treatment tend to be systemic and/or widespread in States such as the Russian Federation, Azerbaijan and Türkiye are alarming. The Parliamentary Assembly should urge these countries to address the root causes of the problem, to introduce systemic changes and to ensure accountability.

The Assembly should also propose a series of recommendations to all member States, with a view to preventing and eradicating torture and ill-treatment and making Europe a torture-free zone. These include reviewing national legislation to ensure appropriate penalties, abolishing limitation periods, guaranteeing access to fundamental procedural safeguards from the outset of detention, video-taping of interrogations. State Parties to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS No. 126) should agree in advance to the automatic publication of CPT reports as a general rule and ensure the follow-up of its recommendations.

A. Draft resolution

(open)

1. The Parliamentary Assembly notes that the absolute prohibition of torture and other forms of ill-treatment has been codified in numerous universal, regional and national legal instruments, including constitutional norms. The prohibition is also recognised as part of customary international law, and as far as torture is concerned, as having attained jus cogens status. It is a norm from which no derogation is permitted, under any circumstances, including in time of war or other public emergency, or in the most difficult circumstances, such as the fight against terrorism. Moreover, it should be recalled that torture may also give rise to individual criminal responsibility for crimes against humanity, when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

2. As recalled in the Reykjavík Declaration “United around our values” adopted by the Heads of State and Government at the 4th Council of Europe Summit (Reykjavík, 16-17 May 2023), the Council of Europe must ensure that the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment is upheld. Article 3 of the European Convention on Human Rights (ETS No. 5, “the Convention”), which contains an absolute prohibition of torture, inhuman or degrading treatment or punishment, enshrines one of the most fundamental values of democratic societies, according to the case law of the European Court of Human Rights (the “Court”). It is a value of civilisation closely bound up with respect for human dignity, which forms part of the very essence of the Convention. Persons in detention are in a vulnerable position and States are under a duty to protect their physical well-being and to account for any injuries suffered.

3. Recalling its Resolution 2160 (2017) “25 years of the CPT: achievements and areas for improvement”, the Assembly congratulates the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) for its outstanding work which has led to significant improvements in the States Parties. While it is the duty of the States Parties to implement the recommendations of the CPT, the latter deserves the strongest political support from other bodies, including the Assembly itself and the Committee of Ministers. The Assembly will therefore continue to strengthen its dialogue with the CPT and reinforce its political support, by reacting appropriately to the CPT’s public statements and paying greater attention to its reports and recommendations.

4. The Assembly notes however that torture and ill-treatment continue today to be present in places of detention throughout the world, including in Council of Europe member States and State Parties to the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (ETS No. 126, “the CPT Convention”). There is a clear gap between the absolute prohibition of this egregious practice and the reality on the ground. The culture of impunity with regard to torture and ill-treatment allows State actors to repeatedly fall short of their international obligations. The Committee of Ministers, when supervising the execution of judgments of the Court, has regarded some cases concerning violations of Article 3 of the Convention against certain member States as raising long-standing structural problems and is therefore examining them under the so-called “enhanced supervision” procedure. In the past two years (2021-2022), the cases concerning ill-treatment by State agents and/or failure to investigate such allegations represented 12 % of all leading cases in this procedure, making it the biggest category of cases coming under such type of supervision.

5. The CPT, in the exercise of its mandate, continues to encounter cases of police ill-treatment in a number of States Parties, under various circumstances and involving different law enforcement agencies. It also continues to receive credible allegations of deliberate physical ill-treatment by prison staff in penitentiary establishments, often applied with a punitive purpose. In some cases, the alleged ill-treatment could be qualified as torture. The CPT has sometimes referred in its reports to the systemic or widespread nature of the problem, or to the existence of a pattern, with regard to certain States. This is particularly worrying and indicates that these States do not properly implement the CPT recommendations, repeatedly violate Article 3 of the Convention and do not take the appropriate general measures aimed at eliminating the underlying causes of the problem. Although many States have incorporated the Convention and the CPT standards in their legislation, the practical implementation of these safeguards remains problematic.

6. The Assembly is alarmed about credible reports suggesting that torture and other forms of ill-treatment tend to be systemic and/or widespread in States such as the Russian Federation, Azerbaijan and Türkiye.

6.1. With regard to the Russian Federation, the Assembly commends the work of the human rights organisation Gulagu.net which has published hundreds of videos and photos of torture and ill-treatment in Russian prisons, often leaked by former prisoners and prisoner employees, some of whom had to flee the Russian Federation for fear of persecution. It is particularly struck by the number and gravity of incidents of rape and other forms of ill-treatment of male inmates at a prison hospital in Saratov, a case which illustrates how videos of torture and rape were used by the federal penitentiary officers to blackmail prisoners or force them to become informal prison agents and even torture other prisoners themselves, a phenomenon known as “torture conveyors”. These revelations led to dismissals and criminal proceedings against some of the officials managing the relevant institutions, and the recognition by the authorities of the need for systemic measures to change the situation.

6.2. The Assembly is also deeply concerned about reports concerning Azerbaijan. In particular, it has been reported that in the context of the “Terter cases” (torture of a group of military personnel and civilians by the Azerbaijani military), many of those detained in 2017 were subjected to torture and inhuman treatment, with 11 confirmed deaths as a result of that torture. Detainees were tortured with the purpose of extracting confessions of treason. The Assembly is appalled by the horrendous methods of torture reported: electric shocks, pulling out nails, waterboarding, blindfolding, removal of genitals, rape, threats of rape of family members, among others. While some of those detained and originally convicted have now been acquitted and released, others remain in prison. It has also been reported that no high-ranking officials have been held to account for the use of torture in these cases. Separate to the “Terter cases”, some reports indicate that torture and other forms of ill-treatment have been used against members of the political opposition, journalists and human rights defenders.

6.3. With regard to Türkiye, the Assembly is also concerned about reports indicating that despite the “zero tolerance” message given by the authorities, there has been a rise in the use of torture and ill-treatment in police custody and prison over the past years, overshadowing Türkiye’s earlier progress in this area. The Assembly welcomes recent decisions delivered by the Constitutional Court finding violations of the prohibition of ill-treatment and ordering new investigations into complaints and encourages other domestic courts to follow this case law.

7. The Assembly strongly condemns the systemic or widespread use of torture and other forms of ill-treatment in certain Council of Europe member States and the Russian Federation. It considers that this practice not only violates the absolute prohibition of Article 3 of the Convention but also undermines the rule of law, democracy and the fundamental values which the Council of Europe stands for. The Assembly is convinced that strengthened action is needed to prevent and eradicate torture and ill-treatment in places of detention in Europe in general, and to make it a torture-free zone. The culture of “zero tolerance” towards torture and ill-treatment needs to have specific content and must not be just a declaration of intent.

8. The Assembly therefore calls on member States and States Parties to the CPT Convention to:

8.1. review their national legislation to ensure that torture and other forms of ill-treatment are included as self-standing offences, in accordance with the definition provided for in international treaties and the case law of the Court, with proportionate and dissuasive sanctions;

8.2. abolish limitation periods for the crime of torture and other crimes of ill-treatment committed by law enforcement and other public officials;

8.3. guarantee access without barriers to fundamental procedural safeguards from the very outset of the deprivation of liberty, including the right of access to an independent lawyer, the right to have one’s detention notified to a relative or another third person of one’s choice, and the right to be examined by an independent doctor;

8.4. ensure appropriate record-keeping of the detention and police interviews and video-taping of all police interviews and interrogations. Video cameras should be introduced in interrogation rooms, detention facilities, police vehicles and as body worn video cameras. Uniformed police officers should always wear a clearly distinctive insignia and an identification number;

8.5. regulate the maximum duration and modalities of police interviews, through legislation, regulations or guidelines;

8.6. consider drawing inspiration from the model of investigative interviewing based on the principle “from the evidence to the suspect” rather than “from the suspect to the evidence”;

8.7. ensure that evidence obtained through torture or ill-treatment is inadmissible in criminal proceedings;

8.8. put in place rigorous recruitment processes of law enforcement officials and prison staff based on strict selection criteria, provide adequate remuneration, initial and continuous training on human rights standards and prevention of torture and ill-treatment, and elaborate clear codes of conduct;

8.9. increase and reinforce prison staff in order to prevent reliance on “duty prisoners” or informal power structures among inmates;

8.10. set up reporting procedures and measures to encourage and protect whistle-blowers for cases of ill-treatment by the police or in the prison context;

8.11. ensure that independent prosecuting and judicial authorities thoroughly examine and investigate all arguable complaints of ill-treatment against law enforcement officials and prison staff and, where appropriate, impose adequate penalties on perpetrators, in line with the relevant procedural obligations imposed by Article 3 of the Convention, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the International Covenant on Civil and Political Rights;

8.12. take all appropriate measures to establish accessible and effective remedies or mechanisms which ensure that victims of torture and ill-treatment receive prompt and adequate reparation. This may include measures of restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition;

8.13. transmit at the highest political level, but also at the management level of law enforcement agencies and penitentiary establishments, a “zero tolerance” message towards torture and ill-treatment;

8.14. ratify, if they have not yet done so, the Optional Protocol to the United Nations Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (OPCAT) and set up independent and effective national preventive mechanisms, with unconditional access to all places of deprivation of liberty and sufficient resources;

8.15. co-operate fully with international bodies which monitor compliance with the prohibition of torture and ill-treatment, such as the United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other relevant treaty bodies;

8.16. speedily implement the CPT recommendations concerning their country and execute, as a matter of urgency, the judgments of the Court finding violations of Article 3 of the Convention in relation to torture and inhuman or degrading treatment inflicted in places of detention, by taking the appropriate individual and general measures under the supervision of the Committee of Ministers;

8.17. give careful consideration to requests for asylum from whistle-blowers and human rights defenders who revealed or denounced the use of torture and ill-treatment in their countries and had to flee abroad in order to avoid persecution.

9. The Assembly urges States which have been found to practice severe physical ill-treatment including torture in places of detention on a systemic or widespread scale, in particular the Russian Federation, Azerbaijan and Türkiye, to address the root causes of the problem, to introduce systemic changes aimed at eliminating abusive and unlawful practices, and to ensure accountability, including in terms of criminal and civil liability, of individual perpetrators, high-ranking officials, and State bodies, for practising or tolerating torture and ill-treatment. In particular, it urges:

9.1. the Russian Federation to ensure that all perpetrators, high-ranking officials and State bodies responsible for the use of torture in prisons, particularly the phenomenon known as “torture conveyors”, are held to account, and that all victims receive adequate reparation;

9.2. Azerbaijan to ensure that all perpetrators, high-ranking officials and State bodies responsible for the use of torture in the so-called “Terter cases” are held to account, and that all victims are compensated and rehabilitated, including through the quashing of convictions based on confessions obtained through torture and through their release.

10. With regard to the CPT, the Assembly calls on States Parties to the CPT Convention to:

10.1. agree in advance to the automatic publication of all CPT visit reports, as many States have done already; authorise the publication of past CPT visit reports, if they have not yet done so. This applies in particular to Azerbaijan, Türkiye and the Russian Federation;

10.2. co-operate fully with the CPT in the organisation of upcoming visits and ensure the follow-up of CPT recommendations, including through the active engagement of national parliaments, in accordance with Resolution 2160 (2017).

11. The Assembly invites the CPT and the Court to indicate more explicitly in their reports and judgments whenever practices of torture and ill-treatment are found to be of a systemic or structural nature in the country concerned. There should be a more timely and co-ordinated action between all Council of Europe bodies, including the Court, the CPT, the Commissioner for Human Rights and the Assembly, to address emerging problems of systemic torture in particular countries, with a view to providing early warning and assistance. In this context, the Assembly invites its Committee on Legal Affairs and Human Rights to hold exchanges of views with national delegations of countries which have been found to have systemic or structural problems related to torture or ill-treatment, on the basis of CPT reports and Court judgments.

B. Explanatory memorandum by Mr Constantinos Efstathiou, rapporteur

(open)

1. Introduction

1. This report is based on a motion for a resolution tabled by the Committee on Legal Affairs and Human Rights (“the committee”) on 7 December 2021.

At its meeting in Paris on 4 April 2022, the committee agreed to merge this reference with the reference “Cases of torture and inhumane treatments in Azerbaijani prisons”.

The committee appointed me as rapporteur at its meeting in Strasbourg on 28 April 2022.

2. The motion for a resolution noted that serious allegations concerning a number of Council of Europe member States had recently been made that torture and other forms of inhuman or degrading treatment, including sexual violence and other forms of humiliation, had been used in a systematic fashion in places of detention. Given also the increasing number of cases before the European Court of Human Rights (“the Court”) and challenges faced by the Committee of Ministers in ensuring the execution of judgments of the Court in these cases, the motion considered it necessary for the Parliamentary Assembly to prepare a report on this matter, which shall address the systemic problems and propose appropriate action.

3. During the preparation of the report, on 22 March 2023, the committee held a hearing with the participation of three experts: Mr Alan Mitchell, President of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Mr Vladmir Osechkin and Mr Siarhei Savelyeu. Mr Savelyeu is a former prisoner and prison employee who leaked a large volume of videos documenting torture in Russian prisons, and Mr Osechkin is the founder of a Russian human rights organisation and website which published this material (Gulagu.net project). In November 2022, I carried out a fact-finding visit to Azerbaijan for the report on the implementation of judgments of the European Court of Human Rights. In the context of that visit, I also met with family members of victims of torture in order to gather information relevant for this report (see paragraphs 33 and 34).

4. For the purposes of this report, I intend to focus mainly on prisons, and detention centres/premises under the control of law enforcement agencies (police, armed forces) rather than other places of detention such as centres for migrants, psychiatric establishments or social care institutions that are beyond the scope of this report. Although poor conditions of detention may also amount to systemic “inhuman or degrading treatment” in breach of Article 3 of the European Convention on Human Rights (ETS No. 5, “the Convention”),

they will not be covered, provided that they do not result from deliberate physical ill-treatment inflicted by State agents. The situation of prisoners of war in relation to certain conflicts (Nagorno-Karabakh, Ukraine) will also be excluded from the scope of this report.

5. In this report, I will start by looking at allegations of systemic torture and deliberate ill-treatment in places of detention in Council of Europe member States and in the Russian Federation (former Council of Europe member State), on the basis of the findings of the Committee of Ministers in the context of the supervision of the execution of judgments of the Court as well as of the CPT. I will then refer to other existing public sources, including Council of Europe bodies, the United Nations Special Rapporteur on Torture, NGOs and media reports, in relation to certain States. I will finally make proposals on how member States and the Council of Europe as a whole can strengthen the prevention of systemic torture and other forms of ill-treatment in places of detention, with a view to eradicating these utterly unacceptable and unlawful practices in Europe.

2. The implementation of the Court’s judgments in cases concerning torture and other forms of ill-treatment

6. The Court has dealt with many individual cases concerning torture and physical ill-treatment in several member States but has rarely found that these cases revealed a systemic use of torture or ill-treatment in a particular State.

The Committee of Ministers, in exercising its competence of supervising the execution of the judgments of the Court, has on its part regarded some cases against certain States as raising long-standing structural problems and is therefore examining them under the so-called “enhanced supervision” procedure.

In 2020, 15% of all leading cases in the “enhanced supervision” procedure concerned ill-treatment by State agents and/or failure to investigate such allegations, making it the largest category of cases pending execution.

In 2021 and 2022, they represented 12 % of all leading cases in this procedure, making it once again the biggest category of cases coming under such type of supervision.

7. With regard to Azerbaijan, the Mammadov (Jalaloglu) group of cases under supervision concerns mainly the lack of effective investigations into the deaths of the applicants’ next of kin or their ill-treatment allegedly imputable to law enforcement officers (of the Ministry of Internal Affairs and the Ministry of National Security) from 2003 to 2012 or to private persons, but also the excessive use of force by law enforcement agents in the course of the applicants’ arrests and/or in custody. The Committee of Ministers noted with grave concern the conclusions of the CPT formulated in its 2017 visit report, which highlighted the systemic nature of torture and other forms of ill-treatment and the ineffectiveness of investigations. In its most recent decision (December 2021), the Committee of Ministers recalled that “ill-treatment in law enforcement is a repetitive and unresolved problem” and noted with serious concern that these cases were pending before it for more than ten years, while over 70 new similar applications were currently pending before the Court.

8. With regard to Bulgaria, the Velikova group of cases concerns mainly deaths, ill-treatment including torture and lack of medical assistance during arrest, in police detention or in penitentiary facilities, and the lack of an effective investigation into these events, which occurred between 1993 and 2017. In 2021, the Committee of Ministers invited the authorities notably to provide an assessment of the reasons for the increase of complaints of ill-treatment in penitentiary facilities (as shown by the number of files examined by the Prosecutor’s Office and the Ombudsperson’s report of 2020), and to present an in-depth analysis of the measures taken to date to reduce and eradicate the risk of ill-treatment during arrest and police detention (also in the light of the Ombudsperson’s report and NGOs communications). The Committee of Ministers also urged the Bulgarian authorities to establish a specific offence of torture accompanied by adequate and dissuasive penalties and to consider the need to criminalise the extortion of a confession from a suspect not yet served with charges at the pre-trial stage.

9. In its examination of the Sidiropoulos and Papakostas group of cases against Greece, the Committee of Ministers noted with serious concern that new similar applications had been lodged with the Court and that ill-treatment by police agents persisted, as shown notably by the CPT in its 2020 reports. The authorities were therefore invited to take due account of the CPT’s latest recommendations, such as those concerning regular professional training and safeguards to prevent ill-treatment.

10. In the Gubacsi group of cases (ill-treatment between 2000 and 2016 by law enforcement officers during the arrest, transfer and detention, and lack of effective investigations) against Hungary, the Committee of Ministers noted with grave concern that “ill-treatment by law enforcement officers has been a long-standing and complex problem in Hungary, which continues giving rise to a significant number of complaints at domestic level and new applications and judgments by the Court”. It strongly reiterated its call on the authorities to communicate a “zero tolerance’ message towards ill-treatment in law enforcement and to adopt the measures required to promote an institutional culture of “zero tolerance” by focusing on prevention, notably through systematic training. The Committee of Ministers called on the authorities, inter alia, to review the domestic legislation to extend or lift the relatively short five-year prescription period for crimes of ill-treatment committed by law enforcement officers.

11. In the group of cases pertaining to the Republic of Moldova (Levinta, concerning mainly inhuman treatment or torture in police custody from 2000 to 2009), the Committee of Ministers, while noting with satisfaction the progress made by the authorities, observed that a significant number of complaints of ill-treatment continued to be made to the prosecutor’s office.

12. With regard to the Russian Federation, the Mikheyev group of cases concerns deaths, torture or inhuman and degrading treatment while in police custody, including ill-treatment motivated by the victim’s ethnic origin, in various regions of Russia in 1998-2017 and the lack of effective investigations into these incidents. The Committee of Ministers, in its latest decision in 2021, deeply regretted the absence of any updated information from the authorities since 2019 and expressed serious concern about the remaining large number of cases pending since 2006 and over 200 new applications pending before the Court, indicating the lack of progress in the execution of these judgments concerning “a systemic and structural problem” in Russia. It also expressed grave concern about the significant increase of cases concerning police ill-treatment and ineffective investigations, as well as the communications submitted by NGOs and applicants demonstrating the absence of major progress.

The Buntov group of cases concerns torture and ill-treatment in penitentiary facilities, and their ineffective investigation, in various regions between 2003 and 2013. In its latest decision in 2022, the Committee of Ministers expressed concern at the recent credible reports about the serious incidence of torture and ill-treatment in Russian prisons and noted that, according to publicly available information, the authorities had acknowledged the need for systemic measures in view of these reports and had recently adopted some measures, including special investigations by the General Prosecutor Office, dismissals of high officials and adoption of a law on 14 July 2022 introducing the definition of torture in the Criminal Code.

The Rule 9 submissions received from some NGOs mentioned the publication of leaked videos and photos of torture in prison, notably on the website of the Russian human rights group Gulagu.net in October 2021, the representatives of which the committee heard during the hearing held in March 2023.

13. In the Stanimirovic group of cases against Serbia, the Committee of Ministers has recently urged the Serbian authorities to deliver a “zero tolerance” message towards ill-treatment by police officers, take more resolute action to tackle this “serious and long-standing problem”, and make additional efforts to enhance the effectiveness of criminal investigations taking into account the concrete recommendations made by the CPT in its 2022 report.

10 years since the leading judgment was given, similar problems persist at the domestic level, as shown by the recent CPT and UN Committee Against Torture reports on Serbia. The Committee of Ministers therefore decided to transfer these cases to the enhanced procedure.

14. As regards Türkiye, the Batı and Others group of cases concerns the ineffectiveness of investigations in relation to killing, torture and ill-treatment by State agents between 1993 and 2011, including in the course of arrests, during police custody and interrogation and while dispersing peaceful demonstrations. The Committee of Ministers adopted an interim resolution in 2021, in which it urged the authorities to take specific measures to ensure that public prosecutors conduct effective investigations into the allegations of all forms of torture and ill-treatment and that decisions of non-prosecution are reviewed diligently by courts. It welcomed however recent messages from high-level authorities in support of the “zero tolerance for torture” policy given in the context of the 2021 Human Rights Action Plan.

NGOs and lawyers of detainees have raised the alarm in numerous cases, which they see as evidence that torture and ill-treatment by law enforcement officers continue to increase.

As regards the conditions of detention and isolation of Mr Öcalan, raised by NGOs before the Committee of Ministers in the context of the execution of the case of Öcalan (No. 2), the Committee of Ministers has noted that the Court is currently seized of a new application concerning his detention conditions, which are also being monitored by the CPT which holds regular visits to the İmralı Prison.

I am particularly worried about the continuing detention of Mr Osman Kavala and Mr Selahattin Demirtaş despite clear judgments of the Court finding violations of the Convention and ordering their release.

The Council of Europe should closely monitor their cases, including any possible risks of ill-treatment they might face while in detention.

15. Finally, regarding Ukraine, the Kaverzin group of cases under supervision concerns physical or psychological torture and/or ill-treatment by the police, mostly in order to obtain confessions, as well as lack of effective investigations into such complaints. In its latest decision on these cases in 2021, the Committee of Ministers noted the authorities’ ongoing efforts but expressed concern about their lack of resolute action, having regard to the time that had passed since the first identification of these problems by the Court. It therefore urged the authorities to step up their efforts to resolve all the outstanding issues, in particular the adoption of the necessary amendments to the legal framework on torture and ill-treatment.

Other groups of cases under supervision concern the use of evidence obtained by torture (Yaremenko group of cases) and torture of prisoners by special forces either as punishment or during training exercises in prisons (Karabet group of cases). It should be noted, however, that the abuses giving rise to these cases predate the democratic changes in Ukraine after the fall of President Yanukovich. Yet, these cases remain under supervision and the current authorities should provide more information on the general and individual measures required.

16. Although cases of torture and other forms of ill-treatment by law enforcement agents, and ineffective investigations into such acts, continue to constitute one of the major structural issues dealt with by the Committee of Ministers, there have also been a number of positive developments regarding certain States. For instance, the Committee of Ministers noted with satisfaction the introduction of torture as a self-standing offence in 2017 in the Italian Criminal Code, in the context of its supervision of the execution of the Cestaro group of cases.

In the Virabyan group of cases against Armenia, it welcomed the adoption of a new Criminal Code and a new Code of Criminal Procedure, including the elimination of the statute of limitations for the crime of torture.

In the Khani Kabbara group of cases against Cyprus, the Committee of Ministers welcomed the measures taken by the authorities to improve the independence, promptness and quality of investigations into ill-treatment by the police, as well as those aimed at preventing ill-treatment, in particular the Chief of Police’s regular “zero tolerance” messages, the amended Police Code of Ethics and capacity building.

3. The CPT’s findings

17. The CPT is mandated to review the manner in which persons are treated in places of detention. It is therefore in a unique position to assess the extent of torture and other forms of ill-treatment in police custody and penitentiary establishments in the whole Council of Europe area. In its 28th General Report (2018), the CPT stated that it continued to encounter cases of police ill-treatment in a number of countries, under various circumstances and involving different law enforcement agencies. It observed as follows: “In several Council of Europe member states, police ill-treatment mainly occurs during the high-risk period around the time of apprehension of persons suspected of having committed criminal or other offences. CPT delegations have heard many accounts according to which the force used by police officers upon apprehension or shortly after was unnecessary or excessive. In particular, they heard allegations of punches, kicks, truncheon blows or use of pepper spray whilst the person concerned displayed no resistance or had already been brought under control. At times, such allegations were supported by convincing medical or other evidence … The infliction of ill-treatment during or in the context of police interviews remains a very serious problem in a significant number of Council of Europe member states. Within the last ten years, the CPT has received credible allegations, and gathered forensic medical and other evidence, of police ill-treatment which could be qualified as torture in almost one-third of the Council of Europe’s member states. The alleged ill-treatment consisted inter alia of the infliction of electric shocks, blows to the soles of the feet, suspension or hyperextension by means of handcuffs, infliction of burns to various parts of the body, asphyxiation with a plastic bag or a gas mask, handcuffing of detained persons in stress positions for hours on end, severe beatings and mock executions. The CPT also continues to hear accounts of other forms of police ill-treatment, from slaps to more brutal forms of abuse. The deliberate nature of such treatment is evident. The treatment alleged was often applied by apprehending/operational officers in the initial period of custody and prior to a first formal police interview for the purpose of obtaining a confession or other information. The CPT’s findings suggest that, in some cases, police crime investigators have condoned or even encouraged such practices”.

18. In its reports regarding certain member States, the CPT has expressed concerns about widespread allegations of torture and other forms of ill-treatment of persons detained by the police and other law enforcement agencies, as well as in penitentiary establishments, sometimes referring to the systemic nature of the problem.

19. In its 2018 report on its 2017 visit to Azerbaijan, the CPT’s overall impression was that torture and other forms of physical ill-treatment by the police and other law enforcement agencies and impunity remained “systemic and endemic”, and that its findings suggested the existence of a “generalised culture of violence towards persons deprived of their liberty among the staff of various law enforcement agencies”. The CPT specifically referred to the case of twenty military servicemen from the Terter barracks, arrested at the end of April 2017, who had been taken to a disused army base near Terter, their hands and legs tied with a rope or cuffed, made to undress completely except for their underwear and brutally interrogated for periods ranging from two to twelve days, using various methods of torture (electric shocks, pulling out nails, burning, waterboarding, sleep deprivation, deprivation of food and water) to varying extents depending on how long particular soldiers could resist before making confessions. Some of the men were allegedly taken blindfolded, even after confessing, to another disused former military unit where they were held for approximately two days and repeatedly ill-treated by members of the military police, for what appeared to be a purely punitive purpose. All of them seemed to have been held in de facto incommunicado detention for periods of up to 2 months, with access to lawyers only one month after their apprehension and after they had agreed to sign a confession. Concerning ill-treatment in prisons, as during previous visits, the delegation received a number of allegations of deliberate physical ill-treatment by custodial staff.

20. As regards Bosnia and Herzegovina, in the course of its 2019 periodic visit, the CPT’s delegation received numerous allegations of ill-treatment, some of which with a degree of severity which amounted to torture (for example blows with a stick to the soles of the feet [falaka], rape with a baton, mock execution with a gun) of detained persons by law enforcement officials. The vast majority of such allegations concerned persons detained by police officers operating within the Federation of Bosnia and Herzegovina and notably in relation to the Sarajevo Cantonal Police. The CPT concluded that the authorities should recognise that “the existence of ill-treatment by police officers is a fact, that is not the result of a few rogue officers but appears to be an accepted practice within the current police culture, notably among crime inspectors”. The delegation also received several credible allegations of physical ill-treatment of inmates by prison staff.

During its 2021 visit, as reflected in its report, the CPT’s delegation once again received numerous allegations of ill-treatment (slaps, punches, kicks and blows with batons and the butts of service weapons) of detained persons by police officers, at the time of apprehension and to a lesser extent during interrogation by inspectors. It concluded that persons deprived of their liberty by police officers continued to run an appreciable risk of being ill-treated. The delegation also received a few allegations of excessive use of force and verbal insults concerning primarily foreign nationals and Roma in prisons (remand prisoners).

21. In the course of its 2019 visit to Greece, the CPT received a high number of allegations of physical ill-treatment of criminal suspects deprived of their liberty by the Hellenic Police. The delegation received some allegations of ill-treatment of a particularly severe nature (such as falaka) and the application of a plastic bag over the head in the context of police interviews. The CPT concluded that the information gathered indicated that “the infliction of ill-treatment by the police particularly against foreign nationals and persons from the Roma community … remain[ed] a frequent practice throughout Greece” and did not concern isolated incidents only. The CPT further observed that the definition of torture in the Criminal Code was not in line with international standards.

During its 2021 visit, the CPT’s delegation received a few allegations of physical ill-treatment of prisoners (kicks and punches) by prison officers in Corfu prison, allegedly inflicted in response to prisoners’ disobedience. New concerns emerged with regard to transgender women, who were subjected to a forced strip-search on admission to prison in front of male officers. Such a procedure was perceived as degrading by the women.

22. The situation of inmates placed in medium-and high-security regimes in Italy was addressed in the 2020 CPT report following its ad hoc visit to that country in 2019. In some prisons the delegation received a number of allegations of physical ill-treatment of inmates by staff and the situation appeared to be particularly problematic at Viterbo prison. The CPT had serious concerns about these cases, which suggested “a pattern of deliberate and disproportionate use of force applied by prison officers, often as a punitive reaction to the behaviour of certain inmates”.

On its 2022 periodic visit, the CPT’s delegation received a number of allegations of physical ill-treatment by all law enforcement agencies and in particular by State police and Carabinieri officers. The alleged ill-treatment consisted of punches, kicks and blows with batons at the time of apprehension (and after they had been brought under control) and, on occasion, during their stay in law enforcement establishments. As regards prisons, the delegation received a few allegations of ill-treatment by staff, but these did not result in a medical note or a complaint.

23. With regard to Russia, the CPT issued a public statement in 2019 urging the Russian authorities to take decisive action to eradicate the endemic phenomenon of ill-treatment by law enforcement officials in the Chechen Republic and other republics in the North Caucasian region. According to the CPT, “it [was] clear from the information gathered by the Committee in the course of [its] visits that resort to torture and other forms of ill-treatment by members of law enforcement agencies in the Chechen Republic remain[ed] widespread”. It added that this problem had been repeatedly highlighted also in respect of other republics of the North Caucasian region. The CPT had also received reports in the months preceding its 2017 visit of unlawful detentions and severe ill-treatment of LGBTI persons in the Chechen Republic, which it considered as credible and requiring effective investigations.

24. In its 2021 report concerning Spain, the CPT received a large number of consistent allegations of recent physical ill-treatment by prison staff. In a number of cases, the alleged ill-treatment was applied as an informal punishment following instances in which staff considered that prisoners had been disobedient or after cases of inter-prisoner violence. In the CPT’s view, the findings of the 2020 visit demonstrated that “a pattern still exists of physical ill-treatment inflicted by prison officers as a disproportionate and punitive reaction to the recalcitrant behaviour of prisoners”, and that such allegations (including some allegations of falaka) represented “a deeper culture of abuse of power and impunity among certain prison officers working in these prisons”.

25. In its 2020 report concerning Türkiye (visit in 2019), the CPT noted that its delegation had received a considerable number of allegations of excessive use of force and/or physical ill-treatment by police/gendarmerie officers from persons taken into custody (including women and juveniles). A significant proportion of the allegations related to beatings during transport or inside law enforcement establishments, apparently with the aim of securing confessions, or as a punishment. In a number of cases, the allegations were supported by medical evidence. Moreover, the CPT stated that although the severity of the alleged ill-treatment seemed to have diminished compared to its findings of the 2017 visit, “the frequency of allegations remain[ed] at a worrying level”.

It is highly regrettable that the other reports on the 2021, 2018 and 2016 (post coup attempt) visits have not yet been published, since Türkiye has not granted permission for their publication as required by the CPT Convention.

26. In its 2020 report following its ad hoc visit to Ukraine, the CPT reviewed the treatment of persons in three correctional colonies. The delegation received a number of credible allegations of physical ill-treatment by prison officers, occasionally involving other inmates (so-called “duty prisoners”). In a few cases, the alleged ill-treatment could be classified as torture (for example infliction of burns to the buttocks, asphyxiation using a plastic bag, etc.) and in others, it could consist of threats of a sexual nature, including of rape. In one colony, although prisoners were very reluctant to speak with the CPT’s delegation, the delegation was able to conclude that it was managed through a system of intimidation and violence involving “duty prisoners”, usually with the knowledge and acquiescence of the management. The CPT called on the Ukrainian authorities to put an end to the practice of employing selected inmates as “duty prisoners”, in line with previous recommendations.

27. With regard to several member States (Albania,

Armenia,

Bulgaria,

Croatia,

Cyprus,

Hungary,

Montenegro,

North Macedonia,

Portugal,

Romania,

Serbia,

Slovak Republic,

Spain

and Ukraine

) the CPT has continued to receive during its visits a number of allegations of physical ill-treatment by police officers, including at the time of initial questioning on police premises. In some cases, the medical examination of the persons concerned and/or the consultation of medical files by the CPT delegation revealed injuries which were consistent with the allegations of ill-treatment made. In the CPT’s view, the phenomenon of ill-treatment by the police had not yet been entirely eradicated in some of these countries, and the persons taken into police custody still ran a considerable risk of being ill-treated.

In other States, although the CPT’s delegation heard very few allegations of police ill-treatment, the CPT noted the increase of complaints before domestic bodies (for example the Republic of Moldova

). Although the CPT’s delegations seem to have received, in recent years, fewer allegations of physical ill-treatment by prison staff compared to those in police detention, some allegations regarding penitentiary establishments were also mentioned in its recent reports on Bulgaria, Croatia, Cyprus, France, Lithuania, the Republic of Moldova, Montenegro, Portugal and Romania.

4. Other Council of Europe bodies

4.1. The Parliamentary Assembly

28. In the past the Assembly has addressed allegations of systemic torture or physical ill-treatment in places of detention. For instance, the issue of unlawful detentions and torture of LBGTI persons in Chechnya was raised in its Resolution 2230 (2018) “Persecution of LGBTI people in the Chechen Republic (Russian Federation)” as well as in the more recent report underpinning Resolution 2445 (2022) “The continuing need to restore human rights and the rule of law in the North Caucasus region”. In this report, reference was made to new waves of attacks on the LGBTI community in 2019, during which two persons were reportedly tortured to death and around 40 were detained by the authorities.

The ill-treatment of political prisoners in certain member States has also been addressed in the most recent work of the Assembly: reports underpinning Resolution 2322 (2020) “Reported cases of political prisoners in Azerbaijan”, Resolution 2446 (2022) “Reported cases of political prisoners in the Russian Federation” and Resolution 2375 (2021) “The arrest and detention of Alexei Navalny in January 2021”.

The use of excessive force by law enforcement officers was addressed in the report underlying Resolution 2435 (2022) “Fighting and preventing excessive and unjustified use of force by law-enforcement officers”, in which the Assembly called on States inter alia to ensure that their national laws criminalise all acts of torture and inhuman or degrading treatment and that such provisions are effectively enforced to prevent and punish the excessive use of force by law-enforcement officers in whatever context (extra-custodial or in detention). The Assembly also played a crucial role in revealing the truth about several member States’ complicity in the unlawful programme of “extraordinary renditions”, involving abduction, detention and ill-treatment of suspected terrorists, carried out by the CIA on European soil between 2001 and 2006.

The country-specific work of the Assembly’s Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) has occasionally pointed to allegations of ill-treatment in specific member States.

29. The Assembly’s General rapporteur on the situation of human rights defenders also drew attention to cases of torture and ill-treatment of human rights defenders, as well as of persecution of human rights defenders who investigate cases of torture.

4.2. The Council of Europe Commissioner for Human Rights

30. The Council of Europe Commissioner for Human Rights has also expressed concerns about individual cases of torture or ill-treatment, particularly regarding human rights defenders and journalists. For instance, in November 2020, she called on the Russian authorities to take urgent action in the case of Mr Salman Tepsurkayev, a 19-year-old chat moderator on a news channel on Telegram, allegedly abducted by Chechen police officers in September that year and subjected to sexual violence and torture. She pointed out that impunity for serious human rights violations was a systemic problem that had been prevalent in Chechnya for many years.

In July 2016, the former Commissioner was alarmed by images showing torture and ill-treatment inflicted on suspected perpetrators of the attempted coup in Türkiye as well as signs of torture on persons taken into custody, which were published in various media at the time.

5. The United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

31. The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has the power to transmit urgent appeals to States with regard to individuals reported to be at risk of torture, as well as communications on past alleged cases of torture; to undertake fact-finding country visits; and to submit annual reports to the UN Human Rights Council and the UN General Assembly. For instance, following his visit to Türkiye in 2016, the Special Rapporteur published a report in which he concluded that “in the immediate aftermath of the failed coup… torture and other forms of ill-treatment were widespread, particularly at the time of arrest and of preliminary detention in police or gendarmerie lock-ups or in unofficial detention location…”. In relation to the south-east, he added that “torture and ill-treatment continued to be widespread in the initial phase of custody and interrogation and is aimed primarily at coercing suspects to confess or to denounce other suspects of terrorist offences”.

In his report on his visit to Ukraine in 2018, the Special Rapporteur concluded that despite noticeable improvements throughout the government-controlled territory of Ukraine, “the information collected… indicate[d] that torture and ill-treatment continue[d] to be practised with impunity throughout the country” and that “regardless of the authority concerned, the reported ill-treatment followed a common pattern of intimidation, punishment and forced confessions”.

In his report following his visit to Serbia in 2017, the Special Rapporteur found that the numerous and consistent allegations of torture and ill-treatment during police custody received were not isolated incidents, but suggested “the existence of a pattern of abuse that is well entrenched in the predominant police culture”.

6. Selected examples of allegations of torture and ill-treatment in certain member States reported by NGOs and media

32. In May 2017, the Azerbaijani authorities opened a criminal case for State treason against a group of military personnel and civilians who had allegedly been leaking military secrets to the intelligence service of the Armenian Armed Forces (the so-called “Terter Case”, see paragraph 19 above). In 13 April 2021, World Organisation Against Torture (OMCT) reported that in the context of this case, 78 people had been detained and sentenced to between 12 and 20 years in prison, and that those detained had been and continued to be subjected to torture, with 11 confirmed deaths as a result of that torture. According to OMCT, detainees had been tortured in an attempt to extract confessions of treason. Oktay Gulaliev, an activist who had investigated these cases, remained in coma; in 2019, he had been hit by a car and had been denied medical assistance for 17 hours following this incident. OMCT condemned these actions and demanded that the authorities end the practice of torture and ensure that systematic measures are taken to prevent and eradicate it.

33. During my fact-finding visit to Azerbaijan in November 2022 (in the context of my report on the implementation of judgments), I met with lawyers and family members of victims of the Terter affair, who gave a very moving testimony. Valida Ahmadova, mother of Elchin Guliyev (killed as a result of torture in May 2017), told us that she only knew that her son had been tortured to death eight months later, when the criminal case was launched. Persons arrested and tortured had three options: (i) admit that they were traitors; (ii) accuse a friend or colleague of being a traitor; or (iii) die through torture. The types of torture used included; hanging; water (drowning); flaying skin; blindfolding; removing nails; placing an electric bulb in the mouth which would then explode; removal of genitals; rape; threats of rape of family members, etc. She explained that her son would not make a confession and would not arbitrarily name others so he was tortured to death. She finally obtained a decision of “acquittal” proving that her son was not a traitor and only then action against his torturers was taken. However, no perpetrators have been convicted as there was no final judgment yet. Ms Ahmadova also stressed that many of the perpetrators in these cases, notably the higher-ranking officials, have been promoted.

34. I also met with Nasir Aliyev, the father of Emil Aliyev, who was convicted of treason and whose case is currently under reconsideration by the General Prosecutor’s Office. He stated that despite verdicts being quashed due to the fact that confessions obtained by torture were used, people were still in prison “for investigation”. Some people who committed torture have been arrested, but not higher-ranking military officers. Some prosecutions have been brought on lesser charges of “causing suffering” (maximum penalty of 3 years) rather than torture.

35. In December 2022, we were informed that 19 Terter prisoners were acquitted and released. At the same time, the head of the parliamentary committee on human rights whom I met during the visit made a statement accusing the former Prosecutor General Zakir Garalov and military investigators involved in the Terter case of falsifying this case, by wrongly accusing hundreds of people of treason. He also called for the restoration of the rights of those unreasonably convicted and their compensation.

36. Torture and other forms of ill-treatment have also been used in Azerbaijan against members of the political opposition, journalists and human rights activists. In February 2019, a court sentenced three senior members of the Popular Front Party of Azerbaijan (PFPA), Saleh Rustamov, Agil Maharramov, and Babek Hasanov to terms of imprisonment for illegal entrepreneurship, possession of drugs and other charges. During trial, the men testified that they had been tortured and pressured to confess. In March 2019, law enforcement personnel repeatedly slapped and kicked opposition activist Bayram Mammadov, and held him for nearly 24 hours, handcuffed, legs tied and lying on the floor. Also in March that year, 14 defendants convicted for mass rioting during the July 2018 unrest in Ganja testified in court that police had beaten them repeatedly to extract confessions and testimony.

In December 2021, the Azerbaijani police violently dispersed a protest in central Baku and detained dozens of protesters. Among those detained was an opposition leader, Tofig Yagublu, who sustained multiple injuries in police custody. Yagublu said that the police severely beat him while videotaping him and demanded that he say on camera that he would stop criticising President Aliyev.

Human Rights Watch (HRW) reported in 2020 and 2021 further allegations of torture of PFPA members such as Alizamin Salayev and Seymour Ahmadov, as well as Yunis Safarov, convicted of an attempt on the life of the mayor of Ganja.

According to HRW, no effective investigations followed these allegations.

37. With regard to Russia, NGOs have systematically reported cases of torture and ill-treatment in places of detention. HRW stated in its 2022 World report that torture and ill-treatment continued in Russia’s penitentiary system. In October 2021, after media reports about leaked videos documenting numerous incidents of rape and other ill-treatment of male inmates at a prison hospital in Saratov region (more than 1 000 videos handed over to the Russian NGO Gulagu.net), the authorities announced that they were opening an investigation. The person who leaked the videos, Siarhei Savelyeu, fled the country and sought asylum in France.

During the hearing before the committee held on 22 March 2023, we heard the testimony of both Mr Vladimir Osechkin, founder of the Gulagu.net project, and Mr Savelyeu, former prisoner who had worked as an assistant to the Head of the security department of the prison hospital in Saratov from 2016 to 2021. Mr Savelyeu explained that he was forced to help the management of that institution by keeping the video archives of torture, beatings, rape and killings performed by FSIN (Federal Prison Service) officers. His task was to distribute video recorders to the prison hospital employees and designed kapos to film their acts of torture and sexual humiliation and to save these files and send them to the FSIN officers in order to prove that the actions were executed. These records were then used to blackmail or recruit as agents those who had been tortured. Whilst hundreds of complaints were filed over the past 10 years, victims were forced to sign waivers. For many years, only Mr Osechkin and a few lawyers tried to expose the “torture conveyor” in that establishment. Mr Osechkin has been publishing information, documents and videos confirming the systematic nature of torture in Russian prisons for more than 11 years. According to him, the system put in place helped the FSIN to exercise totalitarian control within prisons; it was enough for a FSIN agent to show a video of someone being tortured or raped to a person to ensure that they confessed or testified against others or agreed to become a prison spy or a kapo. Mr Osechkin had on several occasions asked the CPT to visit the Saratov prison hospital and a pre-trial detention centre in Irkutsk (where more than 100 prisoners were also beaten and raped in 2020).

After the publication of the videos in 2021, the former Head of the Saratov prison hospital (Pavel Gatsenko) and of its security department (Sergei Maltsev) were arrested and charged with organising the sexual abuse of inmates.

38. Since the beginning of the ongoing war of aggression against Ukraine in 2022, thousands of Russian citizens have been detained for protesting against the war. Many of those were reportedly being abused and brutally ill-treated at police stations. According to the Russian NGO Committee Against Torture, torture in Russian detention centres and prisons is systemic.

39. In Türkiye, in December 2021 several NGOs denounced that, despite the alleged “zero tolerance to torture” policy by the authorities, torture continued to be widespread. According to them, “a rise in incidents of torture, ill-treatment, and cruel and inhuman or degrading treatment in police and military custody and in prison over the past years has overshadowed Türkiye’s earlier progress in this area”.

They also criticised the fact that Türkiye had granted permission for publication of only two of the CPT reports concerning police custody and prisons since July 2016. In two May 2021 rulings, the Constitutional Court found violations of the prohibition of ill-treatment and ordered new investigations into complaints that prosecutors had dismissed in 2016. One concerned a complaint of torture and rape in police custody lodged by a male teacher A.A. in the town of Afyon, the second a complaint by a male teacher E.B. in Antalya alleging that police tortured him in custody following which he had to undergo emergency surgery. Other cases concerned women, such as Garibe Gezer, a Kurdish inmate who claimed that she was beaten and sexually harassed by prison guards in Kocaeli’s Kandıra Prison, and who was found dead in her cell in December 2021.

According to a report on torture practices of June 2021 (data collected by İHD’s Documentation Center), 383 individuals, including 10 children, were ill-treated or tortured at official custodial places in 2020. In the same year, the number of those alleging that they were subjected to torture and ill-treatment at unofficial custodial and extra-custodial places was 397, while those in prison was 358.

According to the İHD report published in 2022, 1 414 persons were subjected to mistreatment or torture in Turkish prisons in 2021, while 531 persons (including 12 children) were mistreated or tortured in police detention.

According to several reports, individuals with alleged affiliation with the PKK or the Gülen movement are more likely to be subjected to mistreatment or torture.

The conditions of detention (isolation) of Abdullah Öcalan in İmralı high-security prison have also been a matter of concern for several years.

7. Proposals to prevent and eradicate torture and ill-treatment in places of detention

40. During the hearing held before the committee on 22 March 2023, the President of the CPT Alan Mitchell recalled the three fundamental safeguards to prevent torture and ill-treatment during police detention: the right of access to a lawyer, the right of access to a doctor and the right to notify a third person of one’s detention. Taken together and properly implemented from the very outset of the detention, this “trinity of rights” can provide protection against ill-treatment. Video recording of police interviews and appropriate record-keeping could provide additional safeguards. Changing police culture is more difficult, but crucial. He mentioned that in many countries visited by the CPT police were developing investigative interviewing techniques rather than interrogation techniques, with the aim of obtaining accurate information and not necessarily a confession (“from the evidence to the suspect” rather than “from the suspect to the evidence”). Proper and independent investigations in cases of complaints and appropriate forensic examinations by independent doctors are also key. As far as prisons are concerned, Mr Mitchell pointed to lack of staff, overcrowding and reliance on prisoners to exercise control within the prison as key factors that had to be addressed. He also recalled that the CPT’s founding principles were co-operation with the authorities of the countries visited and confidentiality, and that the CPT was not an investigative or judicial body.

41. In its 2018 General Report, the CPT addressed some of these issues and recommended good practices. It noted that despite the existence of detailed legal provisions incorporating some of its recommendations on police custody, the practical implementation of these safeguards presented serious shortcomings. According to the CPT, what is needed is a change of police culture, starting with rigorous recruitment processes based on strict selection criteria and adequate remuneration and including continuous training on human rights standards and appropriate investigative skills. There is also a need for strong police leadership and middle management being able to convey firm and unambiguous messages of “zero tolerance” of police ill-treatment. Police officers should always be identifiable and clear reporting procedures and measures to encourage and protect “whistle-blower” should be put in place. The CPT also recommended the setting up of monitoring mechanisms, in particular national preventive mechanisms established under the Optional Protocol to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT). It also referred to the model of “non-accusatory” investigative interviewing (see above) developed in some countries (England and Wales, Norway) as a model that has inspired the CPT’s own monitoring work. Furthermore, the CPT stressed the importance of accurate recording of all police interviews (start and end times, names of all persons present) and of the electronic recording of interviews (with audio/video-recording equipment). Finally, the CPT encouraged a trend observed in some countries consisting of keeping persons in police custody in centralised police detention facilities rather than in police cells located in smaller establishments, as well as the appointment of specialised staff who exclusively fulfil the role of custodial officers (different from apprehending officers and investigators).

42. In its 2021 thematic report on accountability for torture and ill-treatment, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment identified several challenges to accountability, on the basis of State responses: denial, obstruction, delay, scapegoating, deficient and/or underfunded procedures, barriers to victim participation, impunity and the use of torture and ill-treatment as a form of punishment. It then made the following recommendations to tackle this problem:

criminalisation of torture and ill-treatment in law and practice; States should review their national legislation to ensure that torture is included as an offence, in accordance with the definition provided for in Article 1 of the UN Convention against Torture and indicate sanctions commensurate with the gravity of the crime;

overcoming patterns of denial and obstruction of accountability processes and demonstrating the political will to hold themselves and others accountable for torture and ill-treatment;

fostering continuous accountability, including by ratifying the UN Convention against Torture and its Optional Protocol, setting up national preventive mechanisms, co-operating with international bodies which hold States to account in this field, upholding the highest standards of freedom of information and transparency regarding State practices, guaranteeing access to fundamental safeguards against torture and ill-treatment from the outset of deprivation of liberty (access to a lawyer, contact with family members and the right to be examined by an independent medical doctor), and ensuring that investigative mechanisms conduct their work in full independence and impartiality;

inadmissibility of evidence obtained through torture or ill-treatment;

adequate capacity-building and resourcing of accountability mechanisms;

support for civil society and human rights defenders;

systemic, prompt and impartial investigations into all allegations of torture and ill-treatment;

a focus on contextualisation and prevention, including by ensuring the non-repetition of violations and introducing systemic changes aimed at eliminating abusive practices;

full reparation, including rehabilitation of victims;

facilitating the active participation of victims and other stakeholders, including families and civil society organisations;

ensuring accessibility of accountability mechanisms for persons with particular needs or in situations of vulnerability;

holding States and individuals responsible for accountability deficits.

8. Conclusions

43. 70 years after the entry into force of the European Convention on Human Rights, it is deplorable that we are still discussing the use of ill-treatment and torture in places of detention in Council of Europe member States. Inhuman treatment is a severe breach of the Convention system and documenting the frequency and scale of such an abuse of a fundamental human right is also an admission of our failure to establish a torture free-zone in Europe and a clear indication of our weaknesses and deficiencies. Particularly alarming are the repetitive nature of these acts, the lack of progress in implementing necessary reforms and recommendations, the ineffective investigations and non-conformity to relevant decisions of the Court and its case law.

44. The culture of impunity with regard to ill-treatment and torture observed in Russia, Türkiye and Azerbaijan to mention but a few in fact leads State actors to fall short of their international obligations. The culture of “zero tolerance” that should be established in practice needs to have specific content and must not be just a declaration of intent. Establishing a specific offence of torture would be a positive development and one that would give substance to the work of the Court, the CPT as well as national prevention mechanisms.

45. Persons in detention are by definition highly vulnerable and bear an inherent disadvantage because of the very restricted means they have to report an offence of ill-treatment or torture. As such, these cases are very hard to prove and document as the “system” is by definition in a position to exercise power and silence the victim.

46. The reported cases and findings show that Europe is far from being a torture-free zone. Some of the allegations and findings reveal a systemic or repetitive use of torture or other forms of physical ill-treatment in police custody and/or prisons in several European States. There is a clear gap between the absolute prohibition of torture and inhuman and degrading treatment – enshrined in Article 3 of the Convention, international law (UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and jus cogens

) and many national constitutional norms – and reality. As the CPT notes, “combating ill-treatment entails not only the adoption of appropriate legal norms but also taking the necessary steps to ensure their implementation”. This requires effective accountability and reparation for individual cases of torture and ill-treatment, but also measures aimed at prevention and non-repetition. The obligation on States to prevent torture and ill-treatment and ensure non-repetition should include addressing the wider circumstances in which the unlawful incident took place and any possible patterns or systemic problems underlying it, including those calling for legal or institutional reforms.

47. The fact that there are member States whose law enforcement agencies allow or tolerate the possibility or ability for individual misuse of (public) power, is, by its very nature, a serious retreat from the values that are essential for a democratic society and for the respect and promotion of human rights. The use of torture or inhuman and degrading treatment is by essence a serious threat to the democratic foundations of Europe. It reveals the tendency/perception according to which there is a “legitimate” violation of human rights depending on the cause to be served.

48. The Assembly should therefore fully endorse the recommendations of the CPT and the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on prevention and accountability. Some of these recommendations should be implemented by member States through legislation or regulations, for instance the criminalisation of torture and other forms of ill-treatment as self-standing criminal offences, with proportionate and dissuasive sanctions; abolishing the statute of limitations for the crime of torture or other crimes of ill-treatment by law enforcement and other public officials; applicability of procedural safeguards from the very outset of the detention (access to a lawyer, contact with family members or third persons and the right to be examined by a doctor); inadmissibility of evidence obtained through torture or ill-treatment in criminal proceedings; mandatory video-taping of all interrogations; mandatory record-keeping of the detention and police interviews; regulating the maximum duration and modalities of police interviews; setting up of reporting procedures and measures to encourage and protect whistle-blowers; setting up national preventive mechanisms under the OPCAT; mandatory identification of uniformed police officers. There is also a need for a change of police culture, in the sense of promoting a culture where it is regarded as unprofessional to work and associate with colleagues who have resorted to ill-treatment. Member States should for instance develop rules or guidelines (for example codes of conduct) on how to carry out police interviews, drawing inspiration from the model of investigative interviewing that relies on evidence rather than confessions. A change of culture would obviously also require putting in place competitive and rigorous recruitment processes, adequate training in the application of human rights standards, strong leadership and commitment to eradicating torture (clear and repeated “zero tolerance” messages). In terms of accountability, member States should ensure that independent judicial and prosecuting authorities thoroughly examine all complaints against law enforcement officers and, where appropriate, impose adequate penalties on perpetrators.

49. As regards more specifically the prison context, the Assembly should address recommendations to member States based on the CPT’s approach. Member States should increase and reinforce prison staff and management in order to prevent reliance on “assigned duty prisoners’” or informal power structures among inmates. They should also ensure that complaint mechanisms for ill-treatment inflicted by prison officers are effective and independent.

50. Isolated violations of the prohibition of torture should not be treated in the same way as systemic or structural violations, and the legal consequences in terms of accountability and international responsibility of the States concerned should therefore be different. However, repetition of these isolated cases may transform the problem into a systemic/structural one. When structural problems have been found, States should address the roots of the problem and introduce systemic changes aimed at eliminating abusive practices. This is also part of the international responsibility of the State concerned under the Convention and other international treaties prohibiting torture, which includes the obligation to provide not only compensation and rehabilitation of victims but also guarantees of non-repetition. For this purpose, the Assembly could invite the relevant Council of Europe bodies, namely the Court and the CPT, to indicate more explicitly in their judgments and reports respectively whenever practices of torture and ill-treatment are of a “systemic” or “structural” nature in the country concerned. This would assist the State concerned (for instance, through indications by the Court under Article 46 of the Convention or the use of the “pilot judgment” procedure, or through public statements by the CPT under Article 10.2 of the CPT Convention) to address the problem in a more comprehensive way, and help the Committee of Ministers to take more targeted action (through the supervision of the execution of judgments or debates on specific CPT reports or public statements). There is also room for better interaction and complementarity between the different Council of Europe bodies involved in this area (the Assembly, the Committee of Ministers in the supervision of the execution of the Court’s judgments, the Court, the CPT and the Commissioner for Human Rights). Although each body already takes into account the other bodies’ findings, there should be a more timely and co-ordinated action to address emerging problems of systemic torture in specific countries and provide early warning and assistance (including through co-operation projects), which would in turn give more visibility to the Council of Europe in this field and lead to better reactivity by all parties concerned.

51. Finally, the Assembly should call on all member States and the Russian Federation to speedily implement the CPT’s recommendations concerning their own country and to execute, as a matter of urgency, the judgments of the Court finding violations of Article 3 of the Convention in relation to torture and inhuman or degrading treatment. The Assembly should also encourage them to agree in advance to the automatic publication of all CPT visit reports, as many States have done.

A specific call should be made to those countries that have not yet authorised the publication of certain CPT reports (for example Türkiye, Russia, Azerbaijan), to do so at the earliest possible date. The automatic and mandatory publication of CPT reports should become the rule. Finally, the Assembly should again invite all member States to ratify the OPCAT and designate an effective and independent national preventive mechanism in line with the requirements laid down in the OPCAT (see Resolution 2160 (2017) “25 years of the CPT: achievements and areas for improvement”).

Appendix – Dissenting opinion presented by Mr Ziya Altunyaldız (Türkiye, NR) member of the Committee on Legal Affairs and Human Rights, pursuant to Rule 50.4 of the Rules of Procedure

(open)

Systematic torture, inhuman and degrading treatment are horrible atrocities. Combating torture and inhuman treatment merits attention. Therefore, this report addresses a very delicate and urgent problem in member States.

The purpose of this dissenting opinion is not to overshadow the Assembly’s efforts for putting an end to torture and inhuman treatment in member States. However, partial and biased assessments in the draft resolution hurt the credibility of the hard work carried out by the rapporteur and the committee.

In his explanatory memorandum, the rapporteur examines many countries based on the findings of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) and the judgments of the European Court of Human Rights. His work basically presents a comprehensive picture identifying shortcomings in the implementation of CPT recommendations and structural problems due to inadequate legislation.

This being the case, only a few States were mentioned in the draft resolution and Türkiye is one of them. Türkiye is working closely with the CPT in a collaborative and constructive manner. Turkish authorities demonstrate their willingness for and commitment to their zero-tolerance policy towards torture and degrading treatment as other member States do.

The rapporteur’s preference to name a few countries in the draft resolution is detrimental and diverts attention from other member States, which also fail to fulfil their obligations in combating torture and inhuman treatment. Unfortunately, such a biased and preferential treatment gives a false impression that reduces the extent and gravity of the problem to a few countries. Indeed, this approach also contradicts with the title of the report. Due to the above-mentioned reasons, this dissenting opinion is submitted.