CONDUCTING AN INVESTIGATION IN RELATION TO THE CRIMINAL OFFENSE OF ABUSE AND TORTURE - STANDARDS OF EFFECTIVE INVESTIGATION IN THE PRACTICE OF THE EUROPEAN COURT OF HUMAN RIGHTS
Authors: Ukic Nihad 
Published: May 2024

In order for the procedure body (public prosecutor, court or other state body before which the procedure is conducted) to be able to effectively examine serious and specific allegations of abuse and torture, the basic and first prerequisite is an effective criminal procedure law, based on the provisions of which to clarify all the circumstances under which an individual’s human dignity was violated, great pain or severe suffering was inflicted with the aim of obtaining a confession, statement or other information from him or a third party or to intimidate or illegally punish him or a third party, or do so for another reason based on any form of discrimination. The paper analyzes the practice of the European Court of Human Rights with a summary of established relevant standards on the procedural obligation of domestic procedural authorities to conduct an investigation in the case of torture or ill-treatment in accordance with the provisions of the European Convention on Human Rights. The special value of this analysis consists in the identification of the standards of effective investigation in the case of abuse and torture and their content, as well as the recommendation that they be incorporated into domestic criminal procedural laws. The basic standards of an effective investigation have been identified: adequacy, thoroughness, independence and impartiality, timeliness, public oversight and participation of the injured party. Adequacy, as an element of an effective investigation, refers to the need to provide evidence that relates to the suspicious situation itself and that will lead to the discovery and punishment of the person responsible. On the other hand, thoroughness refers to questions about how the investigation should be conducted, as opposed to adequacy, which is more concerned with the purpose of the investigation. Independence and impartiality, as a standard of an effective investigation, refers to the persons who are responsible for organizing and leading the investigation, its direction, management and implementation. Timeliness, as a criterion, i.e. standard, of an effective investigation, implies that it is initiated in a timely manner and completed within a reasonable time, carried out with sufficient care in order to obtain the best possible quantity and quality of evidence. In order to ensure the rule of law, prevent possible collusion or tolerance of illegal acts, it is necessary to ensure the existence of the principle of public supervision of the investigation and its results, but in such a way that the objectives of the investigation and the rights of the parties in the proceedings are not jeopardized. In order for the investigation to be effective, it is necessary for the injured party to have access to the investigation, in order to adequately protect his interests. Conducting an investigation into alleged violations of Article 3 of the European Convention on Human Rights is . The aforementioned standards, despite the significant practice of the European Court, are not yet clearly defined, separated from each other, but they are important for strengthening institutions and raising the quality of judicial proceedings in order to create conditions for the fair and effective exercise of rights and legal interests. For these reasons, a recommendation is made to the domestic legislator that, in order to improve the existing normative framework of the investigation in terms of general principles, it should be harmonized with the practice of the European Court of Human Rights in the part where there is still a need for it. Conducting an investigation into alleged violations of Article 3 of the European Convention on Human Rights is an obligation of the state, in order to prevent violations of human rights, regardless of whether the alleged perpetrator of the violation is a state or non-state entity or natural person. The aforementioned standards, despite the significant practice of the European Court of Human Rights, are not yet clearly defined, separated from each other, but they are important for strengthening institutions and raising the quality of court proceedings in order to create conditions for fair and effective administration of justice. For these reasons, it is recommended to the domestic legislator that the standards of effective investigation be an integral part of the criminal procedural legislation, where this is not the case.