Obligation to Investigate Allegations of Ill-Treatment

Kalamiotis v Greece, Communication No 1486/2006, CCPR/C/93/D/1486/2006 (5 August 2008)

The Human Rights Committee has found that the State party breached art 2(3) (adequacy of remedy), when read with art 7 (torture and other prohibited treatment), of the ICCPR, by failing to ensure that complaints about mistreatment by police officers were adequately and satisfactorily investigated by competent authorities.


The author, a Greek national of Romani ethnic origin, alleged contraventions by Greek police of arts 2(3) and 7, art 2(1) and art 26 of the ICCPR in a communication under the First Optional Protocol to the ICCPR.  Only arts 2(3) and 7 (read together) of the ICCPR were considered by the Committee on its merits, the author’s other claims being found inadmissible or irrelevant.

The author claimed that his rights under arts 2(3) (inadequate remedy) and 7 (torture and inhuman or degrading treatment) of the ICCPR were violated as a result of threats made against him; his beating and arrest; and the subsequent lack of meaningful remedy offered by the police after he made a formal complaint.  The State party denied the author’s version of the facts and implied that the author’s failure to bring his complaints immediately was evidence that the complaints were false.

The State party argued that the communication was inadmissible for the following reasons:

  1. the author had failed to exhaust domestic remedies in a timely and consistent manner; and
  2. the evidence in the case did not ‘show the minimum level of cruelty required to establish a violation of article 7 of the Covenant.’



The Committee expressed views on the following issues regarding admissibility:

  • There are no fixed time limits for the submission of communications under the Optional Protocol.  The delay in bringing the communication is not a ground supporting a finding of inadmissibility but should properly be considered when considering the merits of the case.
  • With regard to the author’s failure to exhaust domestic remedies, the Committee noted that the State party did not identify any additional remedies which should have been sought prior to the author initiating his communication.

On the merits of the case, the Committee expressed the following views:

·          The Committee found that the author’s rights had been violated, reading art 2(3) in conjunction with art 7.  The Committee reiterated its jurisprudence that complaints against maltreatment must be investigated promptly and impartially by competent authorities, and that expedition and effectiveness are particularly important in the adjudication of cases involving allegations of torture and other forms of mistreatment.

·          The only investigation conducted after the complaint was a preliminary police investigation ‑ a forum where the author was not permitted to participate in the inquiry and ‘the concerned police officer’s statement was used as the principal basis for coming to a decision.’

·          The Committee declined to determine the issue of a possible violation of art 7 on its own, having dealt with it in relation to art 2(3).

 Relevance to Victorian Charter

This view is significant, as the Committee declined to consider whether there was a ‘possible violation’ of art 7, having already found that there had been a breach of art 2(3) when read with art 7.  This view may lead to the assumption that art 2(3)(a) does not relate to situations where ‘rights or freedoms as herein recognised are violated’ (emphasis added), but rather is engaged when rights are alleged to have been violated.  The Committee declined to find that a breach of art 7 had occurred on its own, and made no reference to whether it considered a breach of art 7 had occurred at all on the merits of the Communication.  The Committee was concerned more with the lack of opportunity afforded the author to have his allegations given a fair and impartial hearing by the State.  As a result, the factual basis for establishing an art 2(3) claim, read together with art 7, was simply that a complaint had been made and not adequately heard, rather than also needing to establish that an act falling within the scope of art 7 had occurred.

Section 38 of the Victorian Charter requires that a public authority must not act in a manner that is incompatible with a human right, or fail to give proper consideration to a human right.  It is drafted differently to the ICCPR, and arguably does not require that a breach of a particular human right is proven ‑ merely that the action of the public authority is incompatible with a human right.  This view of the HRC appears to bring the ICCPR closer to the application of the Charter.

Rachel Guthrie is a member of the Mallesons Stephen Jaques Human Rights Law Group