Action Against Torture

A guide for lawyers English A guide for medical doctors Spanish A guide for psychologists French

ACTION AGAINST TORTURE

A practical guide to the Istanbul Protocol – for lawyers

Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

International Rehabilitation Council for Torture Victims

ACTION AGAINST TORTURE

A practical guide to the Istanbul Protocol – for lawyers

Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

International Rehabilitation Council for Torture Victims 4 A practical guide to the Istanbul Protocol – for lawyers

Action against torture A practical guide to the Istanbul Protocol – for lawyers

Istanbul Protocol: Manual on the Effective Investigation and Documen- tation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Second edition 2007

Published 2009 by International Rehabilitation Council for Torture Victims (IRCT) Borgergade 13 P.O. Box 9049 1022 Copenhagen K Denmark Tel: +45 33 76 06 00 Fax: +45 33 76 05 00 Email: [email protected] Website: www.irct.org

Printed by Scanprint, Viby J., Denmark

ISBN 978-87-88882-30-8 (paperback ISBN 978-87-88882-33-9 (PDF)

This publication has been produced with the financial assistance of the Eu- ropean Commission. The views expressed in this publication are those of the authors and can in no way be taken to reflect the official opinion of the organisations of those authors, the IRCT or the European Commission. 1

CONTENTS

FOREWORD 3 ACKNOWLEDGEMENT 4 INTRODUCTION 5

PART A 8 AN OVERVIEW OF THE ISTANBUL PROTOCOL

I The importance of legal professionals in the documentation and investigation of torture 8 II The importance of medical professionals in the documentation of torture and the need for lawyers to understand the medical symptoms of torture 9 III International standards in the Istanbul Protocol 11

PART B 13 INTERNATIONAL STANDARDS IN THE ISTANBUL PROTOCOL

I General measures to prevent torture 13 II Specific safeguards in places of detention 17 III International standards on effective investigation of torture allegations 22 IV International standards on prosecution of alleged perpetrators of torture and punishment of those responsible 36 V International standard on right to an effective remedy and adequate reparations for victims of torture and cruel, inhuman or degrading treatment or punishment 39 2 A practical guide to the Istanbul Protocol – for lawyers

ANNEX 46 INTERNATIONAL AND REGIONAL HUMAN RIGHTS SYSTEMS

I Prevention mechanisms 46 II International remedial avenues 49 III Regional human rights systems 52

NOTES 57 REFERENCES 70 3

FOREWORD

This guide is intended as an auxiliary instru- ment to the Istanbul Protocol and has been developed as a source of practical reference The Manual on the Effective In- for lawyers engaged in the investigation and vestigation and Documentation of documentation of cases of alleged torture. Torture and Other Cruel, Inhuman It is researched and written by REDRESS or Degrading Treatment or Punish- within a framework of partnership led by ment, in popular terms the Istanbul the International Rehabilitation Council for Protocol, contains the first set of in- Torture Victims (IRCT) in collaboration with ternationally recognised standards the Human Rights Foundation of Turkey for the effective examination, inves- (HRFT), Physicians for Human Rights USA tigation and reporting of allegations (PHR USA), REDRESS, and World Medical of torture and ill-treatment. It was Association. Similar guides have been devel- drafted by more than 75 experts in oped for medical doctors, “Medical physical law, health and human rights dur- examination of alleged torture victims: A ing three years of collective effort practical guide to the Istanbul Protocol – involving more than 40 different for medical doctors” (IRCT, 2009a) and for organisations including the IRCT. psychologists, “Psychological evaluation of The extensive work was initiated torture allegations: A practical guide to the and coordinated by the HRFT and Istanbul Protocol – for psychologists” (IRCT the PHR USA. Since its inception in 2009b). It is hoped that these materials of- 1999 the Istanbul Protocol has been fer insights and create synergy between the endorsed and promoted by the UN health and legal professions in a joint effort and other key human rights bodies. to combat torture. It exists in Arabic, Chinese, English, French, Russian and Spanish. 4 A practical guide to the Istanbul Protocol – for lawyers

ACKNOWLEDGEMENTS

REDRESS is grateful for the comments and assistance provided by Hulya Ucpinar and Turkcan Baykal of the Human Rights Foun- dation of Turkey, Olga Shepeleva of the Ni- zhny Novgorod Committee against Torture and the “Demos” Research Centre for Civil Soci¬ety in Russia.

For further information, please contact:

International Rehabilitation Council for REDRESS Torture Victims (IRCT) 87 Vauxhall Walk Borgergade 13 London SE11 5HJ P.O. Box 9049 United Kingdom 1022 Copenhagen K Tel: +44 20 7793 1777 Denmark Fax: +44 20 7793 1719 Tel: +45 33 76 06 00 Email: [email protected] Fax: +45 33 76 05 00 (general correspondence) Email: [email protected] Website: www.irct.org

Introduction 5

INTRODUCTION

Recognising the prevalence of torture in the ted, or intimidating or coercing him or a third world and the need to take active steps to person for any reason based on discrimina- combat it, medical, legal and human rights tion of any kind, when such pain or suffering experts from a range of countries drafted the is inflicted by or at the instigation of or with Manual on the Effective Investigation and the consent or acquiescence of a public offi- Documentation of Torture and Other Cruel, cial or other person acting in an official ca- Inhuman or Degrading Treatment or Punish- pacity. It does not include pain or suffering ment (The Istanbul Protocol). The Manual arising only from, inherent in or incidental to was finalised in August 1999 and has since lawful sanctions.” 4 been endorsed by the United Nations, regional organisations and other bodies.1 Accordingly, torture is the intentional infliction of severe pain or suffering, whether The Istanbul Protocol is intended to serve physical or mental, by or on behalf of a as a set of international guidelines for the public official (such as the police or secu- assessment of torture or cruel, inhuman or rity forces) or with their consent.5 The cal- degrading treatment or punishment, and for culated abuse of an individual’s physical investigating such allegations, and report- and psychological integrity, in a way that ing findings to the judiciary or other inves- is designed specifically to undermine their tigative bodies. The set of Principles on the dignity, is horrible in any circumstance. But Effective Investigation and Documentation of when this act is perpetrated by or on behalf Torture and Other Cruel, Inhuman or Degrad- of a public official (someone with the very ing Treatment or Punishment (The Istanbul responsibility to protect an individual’s Principles) annexed to the Istanbul Protocol rights) the crime becomes all the more rep- was included in the Resolution on Torture rehensible. Indeed torture is typically perpe- unanimously adopted by the UN General trated/condoned by State officials who are Assembly in December 2000.2 Subsequently, responsible for upholding and enforcing the the United Nations Commission on Human law. The State may also be responsible for Rights drew the attention of governments torture by non-state actors, such as armed to these Principles and strongly encouraged groups, for example, if it failed to take suf- them to reflect upon them as a useful tool in ficient steps to prevent torture or acquiesced combating torture.3 or condoned the torture. Non-state actors may also independently incur responsibility Torture is defined in the Istanbul Protocol in under domestic criminal law statutes and the words of the United Nations Convention under international humanitarian law and against Torture and Other Cruel, Inhuman or international criminal law.6 Degrading Treatment or Punishment: Torture may cause physical injury such as “Torture means any act by which severe pain broken bones and wounds that heal slowly, or suffering, whether physical or mental, is or can leave no physical scars. Often torture intentionally inflicted on a person for such will lead to psychological scars such as an purposes as obtaining from him or a third inability to trust, and a difficulty to relax person information or a confession, punish- in case the torture happens again, even in ing him for an act he or a third person has a safe environment. Torture survivors may committed or is suspected of having commit- experience difficulty in getting to sleep or 6 A practical guide to the Istanbul Protocol – for lawyers

may wake early, sometimes shouting or with “Perpetrators often attempt to justify their nightmares. They may have difficulties with acts of torture and ill-treatment by the need memory and concentration, experience ir- to gather information. Such conceptualiza- ritability, persistent feelings of fear and tions obscure the purpose of torture and its anxiety, depression, and/or an inability to intended consequences[…]. By dehuman- enjoy any aspect of life. Sometimes these izing and breaking the will of their victims, symptoms meet the diagnostic criteria for torturers set horrific examples for those who post-traumatic stress disorder (PTSD) and/or later come in contact with the victim. In this major depression. Physical and psychologi- way, torture can break or damage the will cal scars can last a lifetime. To someone who and coherence of entire communities[…].” has no experience of torture, these symptoms might appear excessive or illogical, but For this reason, torture is absolutely pro- they can be a normal response to trauma. hibited by every relevant human rights in- strument since the Universal Declaration of The word “torture” will, to most people, Human Rights of 1948. The violation of this invoke images of some of the most horrific prohibition is considered so serious that no forms of physical and psychological suffer- legal justification may ever be found, even ing – the pulling out of fingernails, elec- in times of emergency or armed conflict. tric shocks, mock executions, being forced to watch the torture of parents or children, The prohibition of torture is absolute, even rape. The variety and severity of the meth- in the context of policies and measures to ods of torture and cruel, inhuman or degrad- counter terrorism. Courts and human rights ing treatment or punishment may simply bodies around the world have strongly af- defy belief. But there is no exhaustive list of firmed the absolute prohibition against tor- acts that constitute torture;7 torturers con- ture in all cases without exception.10 tinue to invent new ways to brutalise individuals. And there is no limit on who can be Despite the absolute prohibition of torture victimised – survivors of torture come from under international law, a glance at any of all walks of life, and from most countries the reports of the United Nations Special around the world. Even children may be vic- Rapporteur on Torture, or of recent reports tims.8 But most frequently, torture survivors of the International Committee of the Red are criminal suspects, or victims of discrimi- Cross (ICRC), or indeed many newspapers, nation on the grounds of race, ethnicity, re- makes it quite clear that torture is still com- ligion, gender or sexual identity.9 monplace in many countries around the world. This imbalance between the abso- As noted in the Istanbul Protocol, “torture is lute prohibition on the one hand and the a profound concern for the world communi- frequent practice of torture underscores the ty. Its purpose is to deliberately destroy not need to improve domestic implementation only the physical and emotional well-being of international standards against torture of individuals, but the dignity and will of and to improve the effectiveness of domestic entire communities. It concerns all members remedies for torture survivors. of the human family because it impugns the very meaning of our existence and our hopes The Istanbul Protocol is an important instru- for a brighter future.” ment in the fight against torture – the effective investigation and documentation of tor- In other words, torture is abhorrent not only ture helps to expose the problem of torture for what it does to the tortured but for what and to bring those responsible to account. it makes of the torturer and the system that The Principles contained in the Protocol condones it. The Istanbul Protocol explains: reflect important international standards Introduction 7

on the rights of torture survivors and States formation for lawyers on a) how to challenge obligations to refrain from and prevent tor- governments when investigations of torture ture. are ineffective, b) how to amass the necessary evidence to assist in investigations and/ International law requires States to inves- or when bringing allegations of torture to tigate allegations of torture and to pun- the attention of the competent officials and ish those responsible. It also requires that c) provides a general overview of the inter- victims of acts of torture obtain reparation national legal standards relevant to combat- and have an enforceable remedy to fair and ing and preventing torture and assisting vic- adequate compensation, restitution of their tims to seek remedies and reparation. rights and as full rehabilitation as possible. The Istanbul Protocol is a manual on how to Lawyers are key interlocutors for survivors make investigations and documentations of of torture seeking justice and other forms torture effective in order to punish those re- of reparation. Equally, they may play a vital sponsible, to afford adequate reparation to role in persuading governments to comply the victims and more generally, to prevent with their international obligations to re- future acts of torture. frain from acts of torture and to implement preventative measures. If lawyers are famil- This guide is aimed at lawyers working with iar with the applicable international stan- torture survivors. It describes the various dards, they may seek to interpret and apply international standards contained in the domestic law in light of these standards, and Istanbul Protocol, details international ju- may cite such standards in their legal argu- risprudence supporting such standards and ment, pleadings and complaints. outlines practical ways for lawyers to seek to have these standards recognised and implemented at the national level. It provides in- 8 A practical guide to the Istanbul Protocol – for lawyers PART A AN OVERVIEW OF THE ISTANBUL PROTOCOL

I. THE IMPORTANCE OF LEGAL PROFESSIONALS IN THE DOCUMENTATION AND INVESTIGATION OF TORTURE

The Istanbul Protocol states that lawyers ii. Collecting evidence of torture that may have a duty in carrying out their profession- prompt authorities to open or reopen an al functions to promote and protect human investigation rights standards and to act diligently in ac- iii. Providing evidence of torture that sup- cordance with law and recognised standards ports ongoing investigations or pros- and ethics of the legal profession. Other hu- ecutions at the national or international man rights instruments, such as the “UN Ba- level 11 sic Principles on the Role of Lawyers”, set iv. Recording the failure to investigate in out the duty of lawyers to assist clients “in spite of the availability of evidence or every appropriate way” and to take legal ac- the shortcomings of any investigations tion to protect their interests. undertaken with a view to prompting further investigations, including by tak- International standards to investigate tor- ing cases to regional or international hu- ture are primarily formulated as obligations man rights bodies of States, as reflected in Chapter III of the v. Collecting evidence to support repara- Istanbul Protocol. However, lawyers play a tion claims brought at the national or crucial and active role in the documentation international level before judicial or ad- and investigation of torture, in particular ministrative bodies. by:

i. Documenting torture for use in legal or other proceedings, including future proceedings where national mechanisms at the time are unavailable or ineffective PART A – An overview of the Istanbul Protocol 9

II. THE IMPORTANCE OF MEDICAL PROFESSIONALS IN THE DOCUMENTATION OF TORTURE AND THE NEED FOR LAWYERS TO UNDERSTAND THE MEDICAL SYMPTOMS OF TORTURE

The Istanbul Protocol highlights the impor- are closely linked with the psychologi- tant role of medical professionals in the doc- cal meaning of the trauma to the person, umentation of torture and sets out detailed which is socially, culturally and politi- guidelines on methodology for obtaining cally framed. medical evidence, including the recom- • The social context before, during and af- mended content of medical reports. ter torture: such as community and peer resources and values and attitudes about It is important for lawyers working with tor- traumatic experiences; political and culture survivors to know how torture can be tural environment; traumatic conditions medically documented and how to recognise after torture; exposure to subsequent re- the physical and psychological symptoms of activating stressors – losses and changes torture. This will not only help them to bet- in the individual’s life during the post ter understand their clients and assist them trauma period also have a great impact but equally, such insights are extremely on the psychological response. important when lawyers lodge complaints • The severity and duration of the traumatic of torture or other forms of ill-treatment on events, the circumstances and the nature the survivors’ behalf. As recognised in the of the torture: It is difficult to make a hi- Istanbul Protocol, lawyers and doctors need erarchical list of the severity of the atroc- to work closely together to effectively inves- ities on the individual and it is problem- tigate and document acts of torture. Medical atic to estimate objectively the degree of evidence will help prove that torture has oc- severity. Humiliation, threat to beloved curred. It will also assist lawyers to deter- ones or witnessing the torture of another mine victims’ claims for reparations (e.g., person may have a more profound psy- restitution, compensation and rehabilita- chological effect on the victim than to tion). Similarly, lawyers will need to assess suffer from electric shocks or falanga whether the official investigation under- [beating the soles of the feet], though taken by the police or other competent body this may differ from person to person. took into account proper medical evidence • The developmental phase and age of the or whether they need to arrange for indepen- victim: although there is limited knowl- dent medical examinations to attest to the edge on factors that are related to torture victim’s version of the events. symptoms, in a more general context of traumatic experiences, it has been de- Although the factors influencing the psycho- termined that there is a relationship be- logical responses to torture are not known tween the age of onset of the trauma, the exactly, several aspects can have an impact nature of the traumatic experience, and on the victim: the complexity of the clinical outcome.

• The perception, interpretation and mean- In other words, personal variables such as ing of torture by the victim: Individuals cultural and political background, gender, react to extreme trauma like torture in age, losses during and after the torture, etc., accordance with what it means to them. are all factors that may influence the sever- The psychological reactions to trauma ity of the symptoms produced by torture. In 10 A practical guide to the Istanbul Protocol – for lawyers

addition coping capabilities, physical health express obligation on doctors under profes- and disabilities, pre-existing psychological sional codes of medical ethics to report sus- disorders, pre-existing personality, genetic pected cases of torture about which they be- and biological vulnerabilities also affect the come aware. The World Medical Association symptoms of torture. recommends that, where possible, doctors report such cases with the victim’s consent, Understanding the physical and psychologi- however, where the victim is unable to ex- cal effects of torture is vital when lawyers press him or herself freely, without explicit interview victims with a view to submitting consent.13 criminal or civil claims for torture. It is important for three main reasons: Both lawyers and doctors must carry out their work in good faith, placing their pro- a. To make sure that the lawyers are asking fessional responsibilities over personal or the right questions and collecting nec- institutional interests. Working together, essary information/evidence to assist in lawyers and doctors can do their utmost to building up their case ensure that investigators conduct investiga- b. To help lawyers understand the psycho- tions into torture allegations fully, impar- logical consequences that torture vic- tially and promptly. tims may suffer (like PTSD) and avoid re-traumatising the victim during the If lawyers know or have information about interview, and another lawyer or a doctor that is not com- c. To prepare lawyers on the difficult sub- plying with these general duties, they ject of torture and to understand unex- should report them to their medical and le- pected “reactions” or “answers” on the gal organisations respectively. If the breach part of victims. of duty is sufficient to amount to administrative or criminal responsibility they should For detailed guidelines for lawyers on docu- be reported to the appropriate authorities menting allegations of torture, see the Essex described. See the section on “effective pro- Torture Reporting Handbook, Part II – Doc- cedural remedies”, remedies at the national umenting Allegations (http://www.essex. level, later in this guide (e.g. human rights ac.uk/torturehandbook/english.htm) and commissions, disciplinary procedures, po- also see Chapter IV of the Istanbul Protocol, lice complaint mechanisms). General Considerations for Interviews, F. Assessment of the background (http://www. ohchr.org/Documents/Publications/trainin g8Rev1en.pdf).

Under the UN Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees Against Torture and Other Cruel, Inhuman or Degrading Treat- ment or Punishment12 it is a “gross contra- vention of medical ethics” for doctors to en- gage in acts which constitute participation in, complicity in, incitement to, or attempts to commit torture. However, as recognised by international medical associations, such as the World Medical Association, there is no PART A – An overview of the Istanbul Protocol 11

III. INTERNATIONAL STANDARDS IN THE ISTANBUL PRO- TOCOL

The Istanbul Protocol outlines international tablished to have been made as a re- legal standards on protection against torture sult of torture shall not be invoked as and sets out specific guidelines on how ef- evidence in any proceedings, except fective investigations into allegations of tor- against a person accused of torture as ture should be conducted. It is not binding evidence that the statement was made in itself though States are encouraged to use ––Ensuring that the prohibition of tor- 14 it. The Istanbul Protocol is an important ture is included in training of law source as it both reflects existing obligations enforcement and medical personnel, of States under international treaty and cus- public and other relevant officials tomary international law and aids States to ––Not expelling, returning, extraditing effectively implement relevant standards. or otherwise transferring a person to These guidelines (the Istanbul Principles) a country when there are substantial have been recognised by human rights bod- grounds for believing that the person ies as a point of reference for measuring the would be tortured (non-refoulement). effectiveness of investigations. For example, the Inter-American Commission of Human ii. To ensure that general safeguards Rights cited the Istanbul Principles as the against torture exist in places of deten- minimum requirements for medical reports tions such as: prepared by medical professionals when in- 15 vestigating cases of alleged torture. Simi- ––Granting detainees prompt and unre- larly, a resolution of the African Commission stricted access to a lawyer and a doctor on Human and Peoples’ Rights affirmed that of their choice investigations into allegations of torture ––Informing family members or friends should be conducted promptly, impartially about the person’s detention and effectively, guided by the Istanbul Pro- ––Providing detainees access to family 16 tocol. members and friends ––Not holding persons in incommuni- The Istanbul Protocol identifies the follow- cado detention ing obligations on governments to ensure ––Enabling detainees to promptly chal- protection against torture as recognised in lenge the legality of their detention international treaties and customary inter- before a judge. national law:17

2. ACCOUNTABILITY 1. PREVENTION i. To effectively investigate allegations of i. To take effective legislative, administra- torture by: tive, judicial or other measures to prevent acts of torture, for example, by: ––Putting into place an effective complaints procedure, including by pro- ––Establishing effective monitoring viding adequate victim and witness mechanisms to prevent torture in all protection places of detention ––Ensuring that the relevant authorities ––Ensuring that any statement that is es- undertake a prompt and impartial in- 12 A practical guide to the Istanbul Protocol – for lawyers

vestigation whenever there are reason- either the victim or the perpetrator, able grounds to believe that torture and has been committed ––Making torture an extraditable offence ––Guaranteeing that all allegations of and providing assistance to other na- torture are effectively investigated. tional governments seeking to investigate and/or prosecute persons accused ii. To ensure that alleged perpetrators are of torture. subject to criminal proceedings by:

––Criminalising acts of torture, includ- 3. REPARATION ing complicity or participation, and excluding the defences of necessity or i. To ensure that victims of torture have the superior orders right to an effective remedy and adequate ––Ensuring that the alleged perpetrators reparation by: are subject to criminal proceedings if an investigation establishes that an act ––Ensuring that victims of torture have of torture appears to have been com- effective procedural remedies, both ju- mitted dicial and non-judicial, to protect their ––Imposing punishments that reflect the right to be free from torture in law and seriousness of the crime practice ––Enshrining the principle of universal ––Guaranteeing that domestic law re- jurisdiction, enabling the investiga- flects the different forms of reparation tion and prosecution of torturers irre- recognised under international law spective of the place where the torture and that the reparations afforded re- was committed and the nationality of flect the gravity of the violation(s). PART B – International standards in the Istanbul Protocol 13 PART B INTERNATIONAL STANDARDS IN THE ISTANBUL PROTOCOL

Part B of this guide describes the general i. General measures to prevent torture measures that States are obliged to take to ii. Specific safeguards in places of deten- forestall torture and other forms of ill treat- tion ment and explains how lawyers can advo- iii. Investigating allegations of torture effec- cate for the implementation of such mea- tively sures through general advocacy work and iv. Prosecution of alleged perpetrators and also in the context of individual cases. This punishment of those responsible, and section will address the following interna- v. Guaranteeing effective remedies and tional standards: adequate forms of reparation for the victims.

I. GENERAL MEASURES TO PREVENT TORTURE

Taking measures to prevent torture is the between laws and what happens in reality first obligation to ensure protection from and the lack of legal safeguards in places of torture as outlined in the Istanbul Protocol. detention all contribute to the persistence The positive obligation on governments to and prevalence of torture.19 If broad preven- prevent torture is specifically enshrined in tative measures are in place at the national the United Nations Convention against Tor- level to address basic legislative, adminis- ture as well as the Inter-American Conven- trative and institutional deficiencies, law- tion to Prevent and Punish Torture.18 yers will have more scope to address more specific weaknesses, such as procedural ir- Studies reveal that the inadequacy of nation- regularities in the investigations process. al laws to prohibit torture, the discrepancy 14 A practical guide to the Istanbul Protocol – for lawyers

Lawyers working with professional associa- the need of the judiciary to take cognisance tions such as national bar associations or of international legal standards necessary law societies or when affiliated with civil so- for the prevention of torture. If the legal tra- ciety groups such as human rights organisa- dition permits courts to invoke international tions, may lobby their governments to adopt law directly, without need for implementing new legislation or amend existing laws that legislation, lawyers’ frequent reference to incorporate preventative aspects and/or to such standards will help to ensure that such join parliamentary drafting committees to principles eventually become part of the na- work towards implementation of international legal culture. tional obligations in domestic law. Such advocacy campaigns should be aimed at Even where implementation legislation is comprehensively incorporating the relevant required but does not yet exist, lawyers may standards and may be bolstered by studies still refer judges to treaties that their govern- that review existing legislation and identify ments have ratified so that courts can in a areas where national law and practice fall more general way, interpret national laws short of such standards. consistently with such treaties. In particular, lawyers may take the following concrete As part of their litigation strategy and case steps as part of their litigation strategy: preparation, lawyers may make reference to

• Use international human rights types of torture become part of arguments in pleadings and case national jurisprudence submissions; try to find parallels • Identify the local region or court between national law safeguards that will be most sympathetic and international law standards or most willing to entertain new • If possible, refer to positive juris- legal argumentation and start prudence of neighbouring coun- to bring challenges in this juris- tries, or countries with a similar diction before moving to areas legal system, in order to encour- where judges may be more reti- age judges to accept new or novel cent of change arguments • Make sure that your domestic • Develop casework strategies that litigation strategy is consistent seek progressive changes in the with the possibility to submit a approaches of judges to the ques- petition to an international hu- tion of torture. Always start with man rights body or court, e.g. if more straightforward constitu- available remedies are not fully tional arguments that are well consistent with international entrenched in the national legal standards, specify this in the culture before moving to other pleadings and also try to exhaust concepts. If possible, select the all possible avenues at the na- most “sympathetic” and clearest tional level (like civil litigation of cases, where for example most even if it is almost “impossible” medical evidence is available to to succeed without a criminal prove both physical and psycho- sentence). logical injury to make sure both PART B – International standards in the Istanbul Protocol 15

Lawyers can also be involved in more gen- punish torture. Specific legislative initia- eral lobbying activates to promote the im- tives that lawyers may become involved with plementation of measures to prevent and include:

• Campaigns to ratify the UN Con- • Proposals to legislate mandatory vention against Torture and its medical examinations for detain- Optional Protocol as well as re- ees upon entry into detention gional human rights instruments centres prohibiting torture • Administrative legislation forc- • Identifying shortcomings in na- ing authorities in detention cen- tional law and practice with a tres to keep permanent records of view to bringing the national sys- persons detained and as well as tem in line with relevant interna- medical records of all detainees tional standards (including medical diagnosis) • Proposals for national legisla- • Revoking legislation that con- tion to implement the provisions travenes any provision of the of the UN Convention against UN Convention against Torture Torture as comprehensively as or that generally facilitates tor- possible including: making torture and ill treatment in certain ture a specific criminal offence circumstances (such as “security in line with Article 1; ensuring legislation”) as well as any legis- that statements made as a relation that exempts perpetrators sult of torture are not invoked from punishment (such as am- as evidence in any proceedings, nesties or immunities) except against a person accused • Amendments to the Rules of of torture as evidence that the Court, Procedural Codes and/or statement was made; and guar- other relevant evidentiary prin- anteeing effective remedies and ciples to shift the burden of proof adequate reparation specifically to the relevant custodial author- for torture victims ity when it is reasonably alleged • Specific provisions under nation- that torture took place during al legislation to guarantee that detention (i.e. the individual is the crime of torture is prosecuted sent to emergency hospitalisa- ex officio (i.e. without a victim tion during detention). having to lodge a complaint) 16 A practical guide to the Istanbul Protocol – for lawyers

Lawyers may also become involved in policy mote greater accessibility, transparency and initiatives or advisory committees that pro- accountability of public institutions, such as:

• Commenting on reforms to na- public dissemination of such tional legal aid structures in or- statistics, imposition of time pe- der to improve torture survivor’s riods within which allegations of access to justice torture must be investigated and • Producing guidelines for distri- disciplinary sanctions for omis- bution to detainees on their right sions or actions that render an to be free from torture, custodial investigation ineffective safeguards and steps they may • Participating in training sessions take when this right is violated; for law enforcement and other similar guidelines for custodial security officials, including the authorities emphasising their ob- military, on international stan- ligations and rights of detainees dards in relation to the prohibi- • Recommending measures to en- tion of torture hance the transparency of law • Promoting training sessions for enforcement bodies: for exam- judges on safeguards against tor- ple, methodical documentation ture, as well as on the specific of reported cases of torture (alle- role of the judiciary in prevent- gations), analysis of the number ing and punishing torture and of alleged cases against inves- generally on the countries’ inter- tigation and prosecution rates national legal obligations on the as well as awards of reparation; subject. PART B – International standards in the Istanbul Protocol 17

II. SPECIFIC SAFEGUARDS IN PLACES OF DETENTION

1. “PREVENTATIVE MECHA- to the United Nations Convention against 22 NISMS” TO VISIT PLACES OF Torture establishes a double system of prevention: national and international. A Sub- DETENTION committee of the United Nations Committee against Torture has been established to con- “Preventative mechanism” is a term used in duct visits to places of detention in the terri- international human rights instruments to tory of States parties to the Protocol. At the denote an independent body of experts, au- same time, State Parties must also establish, thorised to undertake regular visits to places designate or maintain independent “na- where persons are deprived of their liberty, tional preventative mechanisms” to conduct in order to prevent torture. The Istanbul periodic visits to places of detention and Protocol reiterates the importance of peri- formulate recommendations to national au- odic visits to places of detention as an ef- thorities.23 According to the Optional Proto- fective tool to scrutinise national detention col, these “early warning systems” can alert practices and as a means of preventing the national authorities to emerging patterns of systematic practice of torture. Significantly, impermissible conduct in places of deten- the Istanbul Protocol states that indepen- tion and practices that may be conducive to dent commissions, set up at the national torture being practised. level and consisting of legal and medical experts should be given periodic access to Some countries have established specific places of detention. The Istanbul Protocol bodies that function as national preventa- also cautions against the negative effect of tive mechanisms, in others, national human well-intentioned non-specialists of official rights commissions or similar bodies are au- institutions and NGOs visiting places of de- thorised to undertake visits to places of detention and being counterproductive to on- tention as part of their mandate. going investigations into allegations of torture. The principle that places of detention To be truly effective, “preventative mecha- should be visited by independent experts is nisms” must: also set out in the UN Body of Principles for the Protection of All Persons under Any Form • Be independent and impartial 20 of Detention or Imprisonment. The former • Be comprised of lawyers, doctors and UN Special Rapporteur on torture also ex- others with expertise in the investigation pressed the need for inspection of places of and documentation of torture detention: “Regular inspection of places of • Have unrestricted and unlimited access detention, especially when carried out as to all places of detention and to all de- part of a system of periodic visits, consti- tainees, with unhindered and confiden- tutes one of the most effective preventive tial access for interviews (no third-per- 21 measures against torture.” sons) • Have the option to publicise their reports The Istanbul Protocol provides that as a pre- and formulate recommendations to na- ventative measure, independent commis- tional authorities for improvement in sions should be set up at the national level, protection afforded to detainees and given periodic access to places of deten- • Establish a follow-up mechanism for tion. The recently adopted Optional Protocol their recommendations. 18 A practical guide to the Istanbul Protocol – for lawyers

In practice, the extent to which lawyers can international law and it is also an important become involved with national preventative protection against torture. As established in mechanisms depends on the composition Principle 33 (1) of the Body of Principles for and mandate of the particular body. But as the Protection of All Persons under Any Form recommended by the UN Committee against of Detention or Imprisonment: “A detained or Torture, both lawyers and doctors should imprisoned person or his counsel shall have form part of the independent body of ex- the right to make a request or complaint re- perts visiting places of detention.24 In some garding his treatment, in particular in case countries lawyers and representatives from of torture or other cruel, inhuman or degrad- NGOs can participate in visits by such bod- ing treatment, to the authorities responsible ies. In other countries, where lawyers learn for the administration of the place of deten- about abuses occurring in a detention facil- tion and to higher authorities and, when ity only through communication with their necessary, to appropriate authorities vested client(s), this information can be submitted with reviewing or remedial powers.”27 to the national preventative mechanism for their follow-up. International law stipulates that any person deprived of their liberty, with or without Where national authorities fail to effectively having been charged of a criminal offence, fulfil their positive obligations to take mea- should have prompt and unrestricted ac- sures to prevent torture, these deficiencies cess to a lawyer. A detainee’s right to access can be brought to the attention of appro- a lawyer should be provided for in national priate international mechanisms. Some ex- law and any restrictions on this right should amples of such “international preventative be exceptional and subject to judicial re- mechanisms” are listed below. view.28 However, in some countries, domestic law only accords detainees the right to access a lawyer after a specific time period 29 2. CUSTODIAL SAFEGUARDS and not from the outset of their detention. The United Nations Special Rapporteur on International human rights law recognises Torture has stated that national legislation should provide that detainees are given ac- the vital importance of safeguards to pro- 30 tect persons who are taken into custody and cess within 24 hours of detention. are designed to minimise the risk of torture. These measures are commonly referred to as Detainees have a right to full and unrestrict- “custodial safeguards” and include the right ed access to a lawyer of their own choice. of access to lawyers, physicians and family As recognised by the UN Basic Principles 25 on the Role of Lawyers (Basic Principles on members and, in the case of foreign na- 31 tionals, diplomatic and consular represen- Lawyers), national authorities are obliged tatives.26 to ensure effective and equal access to lawyers for all persons within their territory. The Basic Principles on Lawyers also stipu- a. International standards on the late that governments should ensure that all persons are immediately informed of their right of detainees to access a right to a lawyer of their own choice upon lawyer detention and have prompt access to a lawyer. Furthermore, Principle 8 stipulates that A detainee’s right to access a lawyer of his governments should ensure that lawyers are or her own choosing is firmly established able to perform their professional functions under international law. This safeguard pro- without improper interference and can con- tects basic due process rights enshrined in sult with their clients freely without delay, PART B – International standards in the Istanbul Protocol 19

interception or censorship and in full con- such as the UN Code of Conduct for Law En- fidentiality. forcement Officials,35 the UN Special Rap- porteur on Torture considers that the health The UN Body of Principles for the Protection of detainees should be ensured during the of All Persons under Any Form of Detention or whole period of detention. Imprisonment32 (UN Body of Principles on De- tention) also stipulates the right to consult The UN Standard Minimum Rules for the and communicate, without delay or censor- Treatment of Prisoners36 (UN Rules for the ship and in full confidentiality, with legal Treatment of Prisoners) and the UN Body of counsel (save in exceptional circumstances, Principles for the Protection of All Persons to be specified by law or lawful regulations, under Any Form of Detention or Imprison- when it is considered indispensable by a ju- ment37 (UN Body of Principles on Detention) dicial or other authority in order to maintain provide a set of medical safeguards for de- security and good order). The UN Special tainees, and stipulate that a medical exami- Rapporteur on Torture, stresses that access nation shall be offered to a detainee prompt- to a lawyer should be prompt and that the ly after their detention and that free medical lawyer should be independent from the State care should be provided to detainees when- apparatus. Exceptionally, where it is con- ever necessary. All medical examinations of tended by national authorities that prompt detainees should be conducted out of the contact with a particular lawyer might raise hearing of law enforcement officials and, genuine security concerns and where restric- unless the doctor concerned requests other- tion of such contact is judicially approved, wise, out of the sight of these officials. The the detainee should be permitted to meet UN Body of Principles on Detention stipulate with an independent lawyer, such as one that a detainee, or his lawyer, will have the recommended by a bar association.33 right to petition a judicial or other competent national authority for a second medical Importantly, the Basic Principles on Lawyers examination or opinion. also specify that governments should guarantee that “persons who exercise the func- The Guidelines and Measures for the Prohibi- tions of a lawyer without having the formal tion and Prevention of Torture, Cruel, Inhu- status of lawyers” benefit from the same man or Degrading Treatment or Punishment legal protections as lawyers. In this sense, in Africa (Robben Island Guidelines),38 oblige members of human rights organisations that States to “establish regulations for the treat- are representing the interests of a detainee ment of all persons deprived of their liberty should also have access, independent of guided by the UN Body of Principles for the their qualification as lawyers. Protection of All Persons under Any Form of Detention or Imprisonment.” Principle 25 of the UN Body of Principles on Detention pro- b. International standards on the vides that “a detained or imprisoned person right of detainees to access a or his counsel shall, subject only to reasonable conditions to ensure security and good doctor order in the place of detention or imprisonment, have the right to request or petition a The UN Special Rapporteur on Torture con- judicial or other authority for a second med- siders that a prompt and independent medi- ical examination or opinion.” cal examination upon a person’s admission to a place of detention constitutes one of the The UN Special Rapporteur on Torture has basic safeguards against torture and other 34 specified that the forensic medical services forms of ill-treatment. In accordance with should be under judicial or an independent international human rights instruments, 20 A practical guide to the Istanbul Protocol – for lawyers

authority and not under the same govern- mittee against Torture have also clarified mental authority as the police or prison sys- the scope of these standards in their juris- tem.39 Similarly, the European Committee for prudence.41 the Prevention of Torture has stressed that detainees should have the right to access independent doctors, and should be medi- c. Action at the national level to cally examined by qualified doctors upon gain access to places of detention entering and leaving detention facilities as well as upon request without undue outside when access is denied interference, such as presence of police officers.40 Regional human rights courts such Practical approaches that can be taken where as the European Court of Human Rights and national authorities deny detainees access international bodies such as the UN Com- to a lawyer of their own choice include:

• Identify the level of responsible the relevant authorities fail, con- authority where the denial of ac- tact the court or judge responsi- cess originates ble and any other body that may • Rezone access with officials at be capable of influencing the the place of detention and where situation and obtaining access, that fails to request authorisation such as national human rights from the next level of responsi- commissions, national visiting bility, up to ministerial level preventative mechanisms, par- • Make written interventions with liamentarians, ombudspersons those in charge at specific plac- • Also inform international and es of detention requesting to be regional mechanisms, giving as informed of existing custodial many details about the place of safeguards, and if no response detention as known (see Section is obtained, make a written in- I.1 of the Annex and Section V, tervention with the next level of Part B in this guide) responsibility and seek judicial • Seek provisional measures before review where interventions are courts or administrative bodies met with administrative silence on appropriate procedural re- • Ensure that authorisations of ac- quirements that should be ap- cess are in writing and that offi- plied when someone is detained. cials at the place of detention are It is also possible to seek interim notified of the authorisation measures from regional and in- • Challenge any decision that de- ternational human rights bodies nies access to the detainee based • Seek assistance from internation- on the fact that access has been al campaigning organisations given to another lawyer (that is like Amnesty International or the not the detainees choice) World Organisation Against Tor- • When direct interventions with ture. PART B – International standards in the Istanbul Protocol 21

3. FURTHER SAFEGUARDS a. Habeas Corpus • Where the right of habeas corpus is not recognised or not guaranteed in line with international An important safeguard for detainees is the standards, advocate for its inclu- right to be able to challenge the legality of sion as a fundamental right in their detention in their national courts by the Constitution and in relevant way of habeas corpus proceedings. Under legislation, in line with relevant these proceedings the competent detaining international standards authority is required to bring a detainee be- • Where available, seek to use the fore a judge and provide a legal rationale for right of habeas corpus at the his continued detention. The right of habeas earliest opportunity, challeng- corpus is contained in Article 9(4) of the 42 ing any delay in granting access ICCPR and the Human Rights Committee before national courts and/or re- has confirmed that it is a right which must 43 gional and international human apply without exception. rights bodies as appropriate • Use habeas corpus proceedings Habeas corpus contributes to the protec- to raise allegations of torture tion of the detainee as it enables a judge • Call on the judge or judicial body to confirm “whether the detainee is still to examine the substance of the alive and whether or not he or she has been complaint and to take the requi- subjected to torture or physical or psycho- 44 site steps to prevent further tor- logical abuse.” This may be done by the ture by transferring the detainee judge seeking, “access to the detainee and 45 from his or her current place of verify his/her physical condition.” Judges detention and to initiate an in- should be alert to any signs, such as the de- vestigation. tainee’s condition, appearance and behav- iour, and the conduct of police officers or prison guards and others present.46 A judge should record any allegations of torture, order a medical examination where there are grounds for suspicion that the detainee may b. Refusing to admit as evidence have been tortured and take the requisite confessions or statements based steps to ensure a prompt and full investiga- upon torture tion of the allegations.47 The UN Convention against Torture requires Lawyers may seek to ensure availability of, that any statement made as a result of tor- and use habeas corpus proceedings in the ture or other coercion, including confes- following ways: sions by the accused or statements made by witnesses, be excluded by the court, except in proceedings against the alleged perpetrators of torture.48 The rule that confessions or statements extracted under torture should not be used as evidence has also been ac- 22 A practical guide to the Istanbul Protocol – for lawyers

cepted in international and national jurisprudence.49 • Object to the use of all evidence obtained under torture, includ- If the accused complains that his or her con- ing third-party evidence, includ- fession has been extracted in this way, in the ing evidence obtained by securi- course of a criminal trial against him or her, ty services from individuals other the judge should order a hearing to deter- than the accused mine the issue. • Where their client alleges he/she has made a confession or state- As to the standard of proof, the Special Rap- ment under torture, call on the porteur has recommended that “where alle- judge to put it to the prosecu- gations of torture or ill-treatment are raised tion to prove beyond reasonable by a defendant during trial, the burden of doubt that no torture or ill-treat- proof should shift to the prosecution to prove ment took place at the time of the beyond reasonable doubt that the confes- confession or statement sion was not obtained by unlawful means, 50 • Where the prosecution is unable including torture and ill-treatment.” to discharge this burden, request

the judge to refuse to allow the Lawyers may object to the use of confessions confession or any statement to or statements extracted under torture in the be used as evidence. following ways:

III. INTERNATIONAL STANDARDS ON EFFECTIVE INVESTI- GATION OF TORTURE ALLEGATIONS

The obligation on governments to carry out the right of victims to an effective remedy to effective investigations is firmly established complain of acts of torture. This includes the in international law. Whenever there are in- right to: dications that torture might have been committed, governments are obliged to automat- i. Be informed about available remedies ically undertake an effective investigation, and complaints procedures52 even without a formal complaint triggering ii. Have access to lawyers, physicians and it.51 Accordingly, the Istanbul Protocol pro- family members53 and, in the case of vides that, “even in the absence of an ex- foreign nationals, consular representa- press complaint, an investigation should tives54 be undertaken if there are other indications iii. Lodge complaints with appropriate bod- that torture or ill-treatment might have oc- ies in a confidential manner55 in any form curred”. and without delay iv. Have access to external bodies, such as The obligation on governments to conduct the judiciary56 and visiting bodies, in- an effective investigation is a corollary to cluding the right to communicate freely PART B – International standards in the Istanbul Protocol 23

with such bodies57 58 v. Be provided with effective protection For an investigation to be “effective” vi. Compel competent authorities to carry 59 under international human rights out an investigation; and law, it must be: vii. The right of effective access to the inves- 60 tigatory procedure, including the right 1. Prompt to undergo a timely medical examina- 61 2. Impartial tion. 3. Thorough In principle, any allegation of torture trig- gers an obligation on the part of the State to investigate the substance of the complaint promptly and impartially. This standard has been affirmed by the UN Committee against Torture,62 the Human Rights Committee,63 the 1. OBLIGATION OF THE STATE European Court of Human Rights64 and the TO INVESTIGATE ALLEGATIONS 65 Inter-American Court of Human Rights. “PROMPTLY” The obligation to investigate does not ex- According to the Istanbul Protocol, “States tend to clearly frivolous cases or those that shall ensure that complaints and reports of are “manifestly unfounded.” According to torture or ill-treatment shall be promptly and the Special Rapporteur on Torture, all tor- effectively investigated.” Articles 12 and 13 of ture allegations should be investigated and the Convention against Torture and Article 8 the alleged perpetrator(s) suspended from of the Inter-American Convention to Prevent duty; however, the latter step should only be and Punish Torture both expressly require taken where the allegation is not manifestly 66 prompt or immediate investigations upon ill-founded. Rule 36 (4) of the Standard 67 receipt of complaints of torture. There are Minimum Rules for the Treatment of Prison- no hard and fast rules as to what constitutes ers obliges the authorities to deal with any “prompt” or “immediate.” The international complaint “(u)nless it is evidently frivolous jurisprudence indicates that it depends on or groundless,” while the Body of Principles the circumstances of the case but that the for the Protection of All Persons under Any words would normally be given their literal Form of Detention or Imprisonment imposes meaning. no such restrictions, providing in Principle 33 (4) that “(e)very request or complaint Promptness, according to the UN Commit- shall be promptly dealt with and replied to tee against Torture, appears to relate not without undue delay.” However, it is diffi- only to the time within which the investiga- cult to draw this line. The Section on effec- tion is commenced, but also the expediency tive remedies, below, will give further guid- 68 with which it is conducted. The Committee ance on international standards addressing against Torture has also expressed concern the right of torture victims to have their al- about the lack of prompt investigations in its legations investigated. 69 concluding observations.

Despite the fact that neither the Internation- al Covenant on Civil and Political Rights nor the European Convention on Human Rights contain express provisions relating to investigations, both the Human Rights Committee and the European Court on Human Rights 24 A practical guide to the Istanbul Protocol – for lawyers

have concluded that investigations must be to proceed as a matter of routine and imme- carried out promptly.70 The Special Rappor- diately in cases such as the present case,” teur on Torture71 as well as instruments such thus implying a literal meaning.80 as the Body of Principles for the Protection of All Persons under Any Form of Detention or 72 Imprisonment and the Standard Minimum 2. OBLIGATION OF STATES Rules for the Treatment of Prisoners73 have emphasised that complaints about torture TO INVESTIGATE THE ALLEGA- should be investigated promptly. TION “IMPARTIALLY” AND THE QUESTION OF INDEPENDENCE The Human Rights Committee declared in its General Comment 20, “complaints must OF INVESTIGATING BODIES be investigated promptly and impartially by competent authorities so as to make the rem- The Istanbul Protocol provides that inde- edy effective.” It has repeatedly emphasised pendent investigative mechanisms should that a “State party is under an obligation to be established. It gives examples of different investigate, as expeditiously and thoroughly grounds for requiring an independent in- as possible, incidents of alleged ill-treatment vestigative mechanism, such as insufficient of inmates.”74 In its consideration of State expertise or lack of impartiality of investi- party reports, the Human Rights Commit- gators; the existence of a pattern of abuse tee has also repeatedly called upon States (e.g. where the type of torture practised is to “ensure that all instances of ill-treatment attributable to public officials); the sus- and of torture and other abuses committed pected involvement of public officials (e.g. by agents of the State are promptly consid- where the national authorities have attempt- ered and investigated by an independent ed to obstruct or delay the investigation of body.”75 torture); or where the public interest would be served by creating an independent mech- When examining whether an investigation anism. is effective, the European Court of Human Rights has applied the test of whether “the Impartiality has been described as a key, if not the most important, requirement of the authorities reacted effectively to the com- 81 plaints at the relevant time.”76 The Court investigation process. The term “impartial- has in several cases based its finding of a ity” means free from undue bias. It is con- failure by the authorities to investigate on ceptually different from “independence” the lack of prompt and timely investiga- which denotes that the investigation is not tions. Considerations are given to the start- in the hands of bodies or persons who have 77 close personal or professional links with the ing of investigations, delays in taking 82 statements,78 and the length of time taken alleged perpetrators. The two notions are, during the initial investigations.79 however, closely interlinked, as the lack of independence is commonly seen as an indi- 83 Equally, the Inter-American Court of Hu- cator of partiality. man Rights has not specified the meaning of “promptness.” However in Cantoral Articles 12 and 13 of the Convention against Benavides v Peru, when considering the fail- Torture and Article 8 of the Inter-American ure of the State party to open a formal inves- Convention to Prevent and Punish Torture tigation following an allegation of torture, expressly require investigations to be impar- the Court referred to Article 8 of the Inter- tial. The Human Rights Committee has also American Convention against Torture which found impartiality to be an implicit require- “clearly sets forth the obligation of the State ment for any investigation contemplated by Article 7 of the International Covenant on PART B – International standards in the Istanbul Protocol 25

Civil and Political Rights84 as has the Euro- gations as one of the means of strengthening pean Court of Human Rights.85 the protection of detainees from torture and inhuman treatment. As noted following its The treaty bodies have approached the issue visit to Cyprus in 2000 “[…]it is axiomatic that of impartiality by considering both proce- the investigations conducted into such cases dural and institutional aspects. Impartiality [torture] should not only be, but also be seen may relate to the proceedings or delibera- to be, totally independent and impartial.”94 tions of the investigating body,86 or in re- It further observed, in relation to Spain “[…] spect of any suspicion of, or apparent bias that the investigation of complaints by the that may arise from conflicts of interest.87 internal accountability mechanisms of the In its consideration of State party reports, National Police and the Civil Guard cannot the UN Committee against Torture criticised be said to be independent and impartial”95 the absence of independent bodies to in- and emphasised “[…]that it is indispensable vestigate torture, particularly in respect of that the persons responsible for carrying torture by the police, the institution that or- out investigations into complaints against dinarily would be tasked with investigating the police should be truly independent from torture.88 Similarly, in a number of its con- those implicated in the events.”96 cluding observations on State party reports, the UN Human Rights Committee expressed concern about the lack of impartial investi- 3. EFFECTIVE INVESTIGA- gations of torture complaints, including the absence of independent oversight mecha- TIONS SHOULD BE CONDUCTED nisms, and urged States parties to establish “THOROUGHLY”: SUBSTANCE independent bodies competent to receive, OF INVESTIGATIONS investigate and adjudicate all complaints on 89 torture and ill-treatment. There is ample jurisprudence to indicate that investigations must be “thorough” and The European Court of Human Rights, when “effective”. Whereas the term “thorough” assessing the effectiveness of investigations, generally relates to the scope and nature of has often held that investigations lacked in- the steps taken in carrying out an investiga- dependence, e.g. where members of the same tion, “effective” relates to the quality of the division or detachment as those implicated investigation. in the allegations were undertaking the in- 90 vestigation. Furthermore, the Court has The UN Committee against Torture observed noted that independence means not only a that investigations must be effective and lack of hierarchical or institutional connec- 97 91 thorough, and that investigations must tion, but also practical independence. seek to ascertain the facts and establish the identity of any alleged perpetrators.98 The The Inter-American Commission on Hu- UN Human Rights Committee has consis- man Rights has also observed that the lack tently held that States have a duty to inves- of independence negatively impacts on im- tigate cases of torture and disappearances partiality, which is a minimum requirement thoroughly.99 for any investigation process,92 and this ap- proach has been confirmed in the jurispru- 93 The European Court of Human Rights held dence of the Inter-American Court. that a thorough investigation should be capable of leading to the identification and The European Committee for the Prevention punishment of those responsible for any ill of Torture has repeatedly stressed the impor- treatment and that it “must be ‘effective’ in tance of impartial and independent investi- practice as well as in law, in particular in the 26 A practical guide to the Istanbul Protocol – for lawyers

sense that its exercise must not be unjustifi- 4. KEY PRINCIPLES AND PRO- ably hindered by the acts or the omissions 100 CEDURES FOR AN EFFECTIVE of the authorities.” Furthermore, authorities must always make a serious attempt to INVESTIGATION find out what happened101 and “should not rely on hasty or ill-founded conclusions to The following section provides a summary close their investigation or as the basis of of best practices, drawing largely on the Is- their decisions.”102 Investigations should be tanbul Protocol. Further guidance on docu- of reasonable scope and duration in relation menting torture can be obtained from the 109 to the allegations.103 Essex Torture Reporting Handbook. De- tailed procedures, expanding on the Istan- In Blake, the Inter-American Court of Hu- bul Protocol guidelines on obtaining physi- man Rights also referred to the need for cal evidence in Chapter V and psychological “effectiveness”104 and specified the duty to evidence in Chapter VI, are explained in the adopt all the internal legal measures neces- Medical physical examination of alleged tor- sary to facilitate the identification and pun- ture victims: A practical guide to the Istanbul ishment of those responsible.105 The Court Protocol – for medical doctors (IRCT, 2009a) specified that the State fails to comply with and in the Psychological evaluation of torture its duty to investigate effectively if “the State allegations: A practical guide to the Istanbul apparatus acts in such a way that the viola- Protocol – for psychologists (IRCT, 2009b). tion goes unpunished and the victim’s full enjoyment of such rights is not restored as The key principles of an effective investiga- soon as possible”,106 thereby stipulating an tion include: obligation of result in addition to process. The Court has also specified that “effective- • Investigators must be competent, impar- ness” requires that victims have full access tial and independent of suspects and the and capacity to act at all stages of the inves- national authority for which the alleged tigation.107 perpetrators work • Methods used to carry out investigations The European Court of Human Rights has should meet the highest professional analysed what steps authorities must take standards and findings should be made when gathering evidence, and has made ref- public erence in its jurisprudence to offers of assis- • Investigators should have the authority tance; objectivity; attitude of the authorities and obligation to obtain all information towards victims and alleged perpetrator(s); necessary to the inquiry timely questioning of witnesses; seeking • Necessary budgetary and technical re- evidence at the scene, e.g. by searching sources should be made available to in- detention areas, checking custody records, vestigators carrying out objective medical examinations • Anyone allegedly implicated in torture by qualified doctors; use of medical reports, should be removed from any position of and, in death in custody cases, obtain- control over the victims, witnesses and ing forensic evidence and carrying out an their families and investigators autopsy.108 • The investigative mechanism should have access to independent legal advice to ensure that the investigation produces admissible evidence for criminal proceedings • The investigative mechanism should have the authority to seek assistance from international legal and medical experts PART B – International standards in the Istanbul Protocol 27

• Torture victims, their lawyer and other have fallen short of what is required. interested parties should have access to hearings and any information relevant to It is also essential for lawyers to be aware of the investigation and must be entitled to these standards when conducting their own present evidence “alternative” or “complementary” investiga- • Witnesses should be permitted to be rep- tions, which should reflect best practices in resented by a lawyer if they are likely to order to enhance credibility and reliability be harmed by the inquiry (for example, of any evidence collected. Equally, the best if their testimony could entail criminal practices outlined below may provide guid- charges) ance to lawyers and others for any advocacy • The investigative mechanism should ef- campaigns aimed at reforming legislation, fectively question witnesses and parties procedures and the practice of investiga- to the proceedings should be allowed to tions in torture cases so as to bring them in submit written questions line with international standards. • Detainees should have the right to obtain an alternate medical evaluation by a qualified health professional and this al- b. Overview of the role of various ternate evaluation should be accepted as investigating bodies admissible evidence by national courts. Investigations may be carried out by a num- The Istanbul Protocol also outlines minimum ber of different bodies depending on the le- procedural standards for investigations that gal system of the State concerned. Victims take into account the rights of the victim, may lodge a complaint with the police, the such as the right to be informed of the na- 110 public prosecutor, or a judge. It may also ture of the investigation and how statements be possible to complain to a national human or evidence offered by the victim may be rights commission, ombudsman or police used. It also sets out the type of evidence oversight body (see below). Registering a that investigators should try to obtain from complaint is of critical importance as it en- the victim. sures that there is an accessible and reliable record of the allegation, and this will form Where possible, interviewers should inter- the basis from which the next steps may be view the alleged perpetrators and obtain taken. medical evidence (physical and psychological), circumstantial evidence, and witness The complaints process should have the fol- statements (ensuring safeguards and tech- lowing characteristics: niques for the safety of witnesses). • Accessible procedure • No fear of retribution a. The conduct of investigations: • The process should not require identifi- best practices cation of the perpetrator or detailed supporting evidence (but not be manifestly This section on best practices focuses on unfounded) the role and conduct of various official and • Complainants should be given a copy of judicial bodies in investigations. It is impor- their complaint, including the date and tant for lawyers to understand best practices name of the recording officer111 with a view to demanding from the bodies • Complainants should have the right to concerned investigative steps in line with challenge a decision not to record a com- such standards, either where no such steps plaint or to compel an authority to for- have been taken or where measures taken ward it to the investigating authorities.112 28 A practical guide to the Istanbul Protocol – for lawyers

Upon receipt of a complaint, the competent dently, using similar powers as the police, authority should categorise and process and recommend prosecution or disciplinary it and determine whether, in appropriate measures to the competent body.117 An alter- cases, it reveals police misconduct that war- native category of police complaints author- rants an investigation, and if so, whether ity includes organisations which are gener- the misconduct amounts to a criminal of- ally confined to reviewing investigations by fence or to a breach of discipline only.113 In the police.118 the absence of a complaint, the competent investigating authorities have an obligation National human rights commissions to proceed with an investigation ex officio (NHRCs), which have been set up in many (without a formal complaint) whatever the countries,119 may be able to investigate hu- origin of the suspicion that an act of torture man rights violations on their own motion or has been committed.114 may be mandated to carry out initial investigations into human rights violations with If these assessments reveal that the mis- the possibility of submitting conclusions conduct gives rise to a criminal offence, a to the competent investigator. Many NHRCs criminal investigation should in principle be may only receive complaints without having opened and the case should be assigned to the power to conduct independent investi- the responsible investigation department or gations.120 Where investigations are carried prosecution service which would direct the out, it will not be on a criminal basis and investigations. Police authorities may initi- after inquiry NHRCs often may only recom- ate disciplinary proceedings, which run par- mend to the government that prosecution allel to criminal investigations. Most police proceedings are initiated.121 authorities have internal systems for investigating such complaints, which usually operate independently of the standard criminal c. Purpose of the investigation investigation process.115 If there is a serious case amounting to torture then criminal pro- The purpose of an investigation should be 116 ceedings should be brought. “to establish the facts relating to alleged incidents of torture, with a view to identify- As an alternative to an investigation by a ing those responsible and facilitating their police investigation department or by the prosecution, or for use in the context of oth- public prosecutor, the matter may be passed er procedures designed to obtain redress for on or made directly to an independent com- victims”.122 plaints body. There is a wide range of such institutions such as police complaints au- According to the Istanbul Protocol, an inves- thorities, ombudsmen and national human tigation “must, at a minimum, seek to: rights commissions. • Obtain statements from the victims of al- Police complaints authorities are usually leged torture established to ensure effective investiga- • Recover and preserve evidence, includ- tions of police misconduct and to introduce ing medical evidence, related to the al- an independent public element into com- leged torture to aid in any potential pros- plaint procedures in order to instil public ecution of those responsible confidence. The strongest bodies are those • Identify possible witnesses and obtain that are competent to receive and investi- statements from them concerning the al- gate complaints against the police directly. leged torture In some cases these bodies are able to in- • Determine how, when and where the investigate complaints about torture indepen- cidents occurred as well as any pattern PART B – International standards in the Istanbul Protocol 29

or practice that may have brought about person has been tortured. It is also critical the torture.”123 to assess any treatment needs of the victim. It is therefore necessary for an investigator The evidence will fall into three main cat- to arrange for a timely medical examination egories; that obtained at the “scene of the of the victim. This will often lead to the writ- crime”, medical evidence and witness testi- ing of a medical report containing the health mony: professional’s findings, which may eventually be put before an administrative or judi- i. Scene of the crime evidence cial body. The scene of the crime should be identified and secured as soon as possible in order to The health professional’s duty is to the court preserve any evidence located there. Once to provide an independent opinion on the sealed off, the investigator should: allegations together with any corroborat- ing medical evidence.125 They should not be Collect and record all material evidence in employed by the detaining authority and accordance with established procedures. should follow an established protocol when This includes, according to the Istanbul Pro- compiling their report. The report should in- tocol, the taking, labelling and preserving clude at least the following: of: • Circumstances of the interview: name • “[…]any samples found of body fluid of the subject and those present at the (such as blood or semen), hair, fibres interview; exact time and date; location and threads[…] and nature of the institution where the • […]any implements that could be used to examination is being conducted; any inflict torture[…] relevant factors at the time of the exami- • […]any fingerprints located[…] nation (e.g. nature of any restraints on • […]a labelled sketch of the premises or arrival or during the examination, pres- place where torture has allegedly taken ence of security forces) place must be made to scale, showing all • History: detailed record of the subject’s relevant details[…] story as given during the interview, in- • […]colour photographs[…] cluding alleged methods of torture or • […]a record of the identity of all persons ill-treatment, times when torture or ill- at the alleged scene[…] treatment is alleged to have occurred • […]an inventory of the clothing of the and all complaints of physical and psy- person alleging torture should be taken chological symptoms and tested at a laboratory[…] • Physical and psychological examina- • […]determine whether [anyone present tion: record of all physical and psycho- on the premises or in the area under logical findings on clinical examination, investigation] were witness to the inci- including appropriate diagnostic tests dents of alleged torture and, where possible, colour photographs • […][Save] any relevant papers, records of all injuries or documents[…]for evidential use and • Opinion: interpretation as to the proba- handwriting analysis.”124 ble relationship of the physical and psychological findings to possible torture or ii. Medical evidence ill-treatment. A recommendation for any Medical evidence is important in the docu- necessary medical and psychological mentation of torture as it can add strong treatment and/or further examination support to a victim’s statement and may shall be given even provide confirmatory evidence that a • Authorship: the report should clearly 30 A practical guide to the Istanbul Protocol – for lawyers

identify those carrying out the examina- views may have to be conducted in order tion and shall be signed.126 to avoid exposure of any specific person. Alternatively they may be transferred to iii. Witness testimony another detention facility.131 Interviews will need to be conducted with the victim, the alleged perpetrator and any (ii) Interviewing the victim witnesses to the events. The role of the inter- Given the nature of torture and its impact on viewer is to obtain credible information from victims, it is of utmost importance that inter- the interviewee with the view to establishing viewers are sensitive to the person alleging relevant facts relating to the torture. torture or other witnesses so as to avoid re- traumatisation. Where necessary and pos- (i) Protection issues sible, several interviews may be needed to As affirmed in the Istanbul Protocol, “The bring out the full story as it often takes time State is responsible to protect victims, wit- for torture survivors to trust anyone con- nesses and their families from violence, ducting interviews. threats of violence or any other form of intimidation that may arise pursuant to the As explained in the Istanbul Protocol, “From investigation.”127 This has been an issue in the outset, the victim should be informed of several countries such as Sri Lanka where the nature of the proceedings, why his or the lack of effective victim and witness pro- her evidence is being sought, if and how evi- tection has been connected with reprisals, dence offered by the alleged victim may be intimidation and threats in torture cases.128 used”, and the victim’s consent to the inter- States should criminalise threats to vic- view must be specifically received. Further- tims and witnesses and complement these more, the person alleging torture “should measures with practical victim and witness be regularly informed of the progress of the protection schemes.129 States should also investigation.”132 suspend the alleged perpetrators from duty where the allegations are not manifestly ill- The basic aim of an interview will be to re- founded.130 veal the following:

As a general rule investigators must consider • “The circumstances leading up to the carefully and constantly the actual and po- torture, including arrest or abduction tential consequences of the investigation on and detention[…] victim and witness safety, especially where • Approximate dates and times of the tor- the victim is in custody. Interviewers should ture[…] consider the following when conducting de- • A detailed description of the persons in- tainee interviews: volved in the arrest, detention and torture[…] • It is essential to obtain the detainee’s • Contents of what the person was told or trust and to ensure that the detainees do asked[…] not place themselves in danger • A description of the usual routine in the • The detainee must fully consent to the place of detention and patterns of ill- interview and to how the information treatment[…] will subsequently be used • A description of the facts of the torture, • The names and details of those inter- including the methods of torture used… viewed should be taken so that it is pos- • Whether the individual was sexually as- sible to assess their safety in the course saulted[…] of follow-up visits • Physical injuries sustained in the course • If there is a fear of reprisals, group inter- of the torture[…] PART B – International standards in the Istanbul Protocol 31

• A description of weapons or other physi- to minimise collusion and these should be cal objects used[…] conducted on an individual basis. • The identity of witnesses to the event involving torture[…]”133 (iv) Interviewing the suspect If investigators are in a position to interview The interviewer should be aware that often suspects they should be cognisant that offi- there will be inconsistencies and gaps in cials who are suspects will often have a good the victim’s story. This does not necessar- knowledge of the investigatory system and ily mean that the story has been fabricated. seek to undermine the process. As a result, Many torture survivors have suffered forms investigators should: of torture that may result in cognitive im- pairment.134 • Receive adequate training and conduct interviews in a professional manner, in (iii) Interviewing other witnesses accordance with an established protocol An investigator should identify persons who • Apply due process principles (e.g. the would be in a position to provide informa- offering of legal assistance) in line with tion about the torture and related events. international standards to prevent any later claims of procedural impropriety. This would include anyone who was with the victim shortly before the arrest or wit- Senior officers may be responsible for the nessed the arrest. It also includes doctors conduct of their subordinates under com- and others who may testify to the state of mand responsibility and should also be in- health of the victim prior to being arrested. terviewed as potential suspects. Other detainees are of particular importance as witnesses as they may have either wit- nessed the actual torture or may, by giving c. Considerations for governments an account of their own torture, corroborate and specific bodies the victim’s testimony and other evidence. In interviewing such witnesses, steps need Governments to be taken to obtain informed consent and A functioning system and adequate politi- seek protection from adverse consequences cal will are essential requisites for a State to resulting from the interview. fulfil its obligations to investigate effectively allegations of torture. Where the investigat- Prison staff and police officers are also key ing machinery is defective e.g. resulting in witnesses as they may have either been pres- widespread impunity of perpetrators, gov- ent at the time the torture took place or may ernments should order an independent and have otherwise come to know about the tor- thorough review of their legal system and ture and/or the perpetrators. The challenge investigative institutions to identify existing for the investigator will be to obtain informa- shortcomings. tion where there is a closing of ranks by the officials. Ideally there should be adequate Governments must ensure that there is suffi- procedures in place at the suspect authority cient practical training for law enforcement to prevent any conflicts of loyalty hindering personnel and judges in initiating prompt an investigation, such as police officers be- 135 and impartial investigations. Specialist ing duty-bound to inform superiors about training should be given to doctors in the any misconduct by colleagues, and being examination and documentation of tor- able to do so in a confidential manner. The ture and ill-treatment and a suitable proto- investigator should conduct interviews as col (consistent with the Istanbul Protocol) soon as possible after the complaint in order should be followed. 32 A practical guide to the Istanbul Protocol – for lawyers

Where they do not exist, independent police Where the police are the recipients of com- complaints authorities or national human plaints it is vital that: rights institutions should be established, especially where there are no special com- • Internal special complaints units or re- plaints units of the police to handle inves- structured procedures are set up so that tigations, and these should be given full complaints are automatically dealt with investigatory powers. Whichever investiga- by units other than those whose mem- tory body is utilised, it is critical that it is bers stand accused139 provided with a clear mandate and operat- • These units be supervised at arm’s length ing procedures to follow (consistent with by the prosecutor’s office and be allowed the “best practice” investigation suggested to exert operational independence in above) when torture is alleged. practice.

Prosecutors Police complaints authorities and NHRCs Public prosecutors have a significant respon- Police complaints authorities/oversight bod- sibility to investigate effectively complaints ies and NHRCs with the same powers of in- of torture to ensure public confidence in vestigation as those of the police should be the complaints system. Prosecution offices able to carry out the full range of investiga- must be independent and free from political tory processes including full rights of access interference. They work closely with the po- to places of detention, evidence and wit- lice to combat crime and this may result in nesses. An example of a police complaints a real or perceived reluctance on the part of authority having wide powers is the office of the prosecution service to investigate allega- the Police Ombudsman for Northern Ireland tions against police officers.136 To help pre- (PONI).140 Oversight and human rights bod- vent a deferential attitude towards the po- ies with strong investigatory powers should lice when investigating torture, there should incorporate the following practices into their be a separate department within the public working procedures: prosecutor’s office mandated to investigate complaints against the police or other pub- • Ensure that the public may make com- lic officials. This department would require plaints in a number of ways, including in sufficient resources and training to fulfil the person, by telephone, by letter, by email specialist nature of the work. and through an online complaints form • Set out in its literature and website the Internal investigation departments of steps which will be taken in a complaint, the police and ensure that all complainants are in- Police investigations of torture are often par- formed of the process ticularly problematic, mainly when there is • Ensure powers to investigate policy and a lack of independence from the perpetrator practice issues when it is in the public and the existence of a protective culture.137 interest to do so, and to make systemic The UN Committee Against Torture has findings and issue recommendations as stated that investigations of torture and ill- to how to improve policing.141 treatment committed by law enforcement officials should not be undertaken by or under The vast majority of police complaints au- the authority of the police.138 It is of critical thorities and NHRCs have a more limited importance for police authorities to have a role to the Northern Ireland example. Those clear policy relating to the investigation of organisations which exercise a review and internal complaints, internal rules and ad- monitoring function should: equate supervisory mechanisms to ensure the proper handling of complaints. PART B – International standards in the Istanbul Protocol 33

• Be able to compel an internal police in- • Use existing visiting powers to interview vestigation unit to forward any and all detainees and enable them to bring com- complaints to it for review plaints directly • Publish annual reports on the cases it • Utilise (and if necessary set up) a mecha- has reviewed and recommendations nism between judges and the appropri- made, together with how the matter was ate investigatory body to commence a resolved criminal investigation • Establish relationships with (other) hu- • If they are supervising an investigation, man rights groups who may provide ensure that the relevant body is conduct- critical expertise throughout their opera- ing the investigation in a manner con- tion142 and should set up public outreach sistent with international standards and programmes to increase their profile the “best practice” suggested. • Provide practical training to official authorities on adhering to human rights standards and of best practices for inves- 5. ACTION AT THE NATIONAL tigating allegations of torture • Generally, advocate for increased pow- LEVEL TO IMPROVE THE EFFEC- ers of investigation and competence to TIVENESS OF INVESTIGATIONS receive individual complaints. Different types of investigative mechanisms Judges have been established in numerous coun- As a complaint of torture or ill-treatment tries.144 However, the gap between the inter- may be made to a judge, judges should have national standards on the obligation to in- the power to open an independent criminal vestigate allegations of torture “effectively” investigation if they hear credible allega- and the reality in domestic law and practice tions of torture at any stage of criminal pro- is evident; and greater in some countries ceedings.143 Judges should open an investi- than others.145 gation where there are reasonable grounds to believe torture has been committed, even To reduce this gap, lawyers should include if there has been no complaint, as a defen- international standards in both their advo- dant may be reluctant to complain about cacy efforts and their legal argumentation. their ill-treatment when they appear before It is important to find domestic legal provi- a judge for fear of reprisals. Judges should sions that reflect these international stan- implement the following measures: dards (if they exist) while always making reference to the State obligations under in- • If necessary, establish a simple proce- ternational law. dure for individuals to complain directly to the court

What action can be taken to chal- • Write to the complaint body to re- lenge the effectiveness of an in- quest a formal reply to the allega- vestigation on the grounds that it tion, and request to obtain a copy has not been opened promptly? of their review procedures • Apply as soon as possible for ju- • Ensure that the complaint is filed dicial review on the effectiveness in writing and date stamped of the investigation (or take other 34 A practical guide to the Istanbul Protocol – for lawyers

steps in accordance with review possible to transfer the matter to procedures) when an allegation another investigative body of torture has been brought to the • Advise the competent judicial attention of the relevant national supervisory body, such as the Ju- authority without an investiga- dicial Council, of the matter and tion being formally opened where appropriate, lodge a com- • Apply to the competent authority plaint. for an order to take the necessary steps to preserve the evidence. What action can be taken to challenge the decision of a national What action can be taken where authority to close or suspend an an investigative body is negligent investigation? or does not follow procedural requirements? • Request a copy of a written decision closing or suspending an • Throughout the process chal- investigation lenge any decision of the investi- • Apply to the superior prosecuto- gative judge that does not comply rial body and/or for judicial re- with procedural requirements, or view to challenge the legality of where there has been a failure to the grounds on which the deci- act, apply to the relevant court sion was taken for a decision ordering the inves- • Seek to present ‘new facts’ or ar- tigative judge to proceed with the guments that may justify the re- inquiry opening of the investigation. • Determine whether it may be

The following are some practical steps that fectiveness of investigations at the national may be taken by lawyers to enhance the ef- level:

• Obtain a detailed statement of any inconsistencies. Compare the victim, which includes infor- the following: medical reports if mation regarding the facts possi- there are more than one; medi- ble evidence in relation to the act cal report(s) with the records of of torture and any proceedings relevant health units; all the ex- • Record any complaints made by isting documents/reports with the victim about his or her health victim’s statement. If you note condition; view injured parts of any inconsistencies, inform the the body with the consent of the judges about your findings and victim and indicate injuries on any possible misconduct. Hav- the body diagram contained in ing sought prior instruction from the Istanbul Protocol the client (to avoid putting him/ • Examine the medical report for her at any risk), alert investiga- PART B – International standards in the Istanbul Protocol 35

tors to any information pertinent to reasoned, including information on the investigation and where there why certain lines of enquiry were might be a possibility of sources of pursued and others not and high- evidence being overlooked, to en- lighting any irregularities found in sure that the investigation produces the course of the investigation; cite evidence that is admissible in court international and national guide- • Submit the victim’s statement as lines/rules on collecting evidence well as the record on the health and principles on investigations, in- condition together with the body cluding the Istanbul Protocol diagram to the investigative author- • Collect secondary documentation ities with the consent of the victim (such as reports of human rights or- • Request the authorities to under- ganisations, research studies, press take the necessary steps to inves- articles) to support a case that an tigate allegations of torture based existing investigation is ineffective on the information provided in the or that the particular circumstances victim’s statement of the case (e.g. highly political) re- • In parallel, if possible, collect and quire an independent investigation submit any evidence referred to by or re-investigation of the allega- the victim and submit it to the in- tions vestigating body • Intervene with the relevant authori- • Assess the thoroughness of an inves- ties where public officials (who may tigation by checking if investigators or may not have been charged with have sought all relevant sources of perpetrating torture but are impli- evidence before injuries disappear cated in the allegations) have not or witnesses are no longer avail- been suspended from their positions able, including medical evidence during the period of investigation (of both physical and psychological • Seek safeguards for health profes- damage) sionals undertaking medical ex- • If possible, promptly submit any aminations to ensure they have concerns with the thoroughness of sufficient time and privacy and to the investigation, such as delays in avoid any sanctions, in case their conducting medical evaluations, in examinations confirm that torture writing and request second medi- was inflicted cal evaluations if the competence • Develop a database that fully docu- or impartiality of the examining ments all torture-related complaints health professional is called into and investigations using a sound question- Use the record of the and consistent methodology, and health condition and the body dia- undertake regular reviews and gram to ask for a (second) medical analyses with a view to identifying report and, as appropriate, submit legislative and institutional short- it to medical chambers, universities comings or other institutions for an indepen- • On the basis of such findings, ad- dent report vocate for requisite legislative, in- • Challenge any report issued by the stitutional and practical changes, investigative mechanism that is including the setting up of indepen- not sufficiently comprehensive and dent complaints mechanisms. 36 A practical guide to the Istanbul Protocol – for lawyers

IV. INTERNATIONAL STANDARDS ON PROSECUTION OF ALLEGED PERPETRATORS OF TORTURE AND PUNISHMENT OF THOSE RESPONSIBLE

International law clearly establishes the ob- indemnity laws etc., should be abrogated.”151 ligation on Governments to prosecute those The United Nations Secretary General has accused of torture. This obligation exists also stressed the obligation to prosecute regardless of where the crime was commit- when violations of torture are concerned, ted, the nationality of the victim or alleged as enshrined in the Vienna Declaration and perpetrator.146 As established in the Istanbul Programme of Action.152 Protocol, “States are required under international law to investigate reported incidents Any punishment imposed on those respon- of torture promptly and impartially. Where sible for torture should reflect the serious- evidence warrants it, a State in whose terri- ness of the crime.153 tory a person alleged to have committed or participated in torture is present, must ei- The Istanbul Protocol establishes that States ther extradite the alleged perpetrator to an- are obliged to publish the results of investi- other State that has competent jurisdiction gations and are also obliged to ensure that or submit the case to its own competent au- the alleged offender or offenders are subject thorities for the purpose of prosecution un- to criminal proceedings if an investigation der national or local criminal laws.”147 Such establishes that an act of torture appears prosecution is based on the exercise of what to have been committed. The UN Declara- is known as universal jurisdiction. tion of Basic Principles for Victims of Crime and Abuse of Power154 calls for judicial and administrative processes to be responsive to 1. GENERAL PRINCIPLES ON the needs of victims – for example, by keep- ing them informed and allowing their views THE PROSECUTION OF ALLEGED and concerns to be considered at appropri- TORTURERS ate stages of the proceedings. The Europe- an Court of Human Rights155 and the Inter- International law provides few, if any, ex- American Court of Human Rights156 have ceptions to the obligation to investigate with equally found a duty of States to inform the a view to prosecuting alleged perpetrators complainants about the outcome of inves- of torture.148 It is generally agreed that there tigations and, the Inter-American Court, to should be no criminal immunity for persons publish the results of an investigation. Both accused of perpetrating torture,149 and that the Committee against Torture and the Hu- amnesties cannot be accorded to perpetra- man Rights Committee have called on State tors of torture or otherwise prevent victims Parties to publish information relating to the from obtaining an effective remedy.150 The number and nature of complaints, investiga- Special Rapporteur on Torture has stated tions undertaken, and steps taken following that “A person in respect of whom there is such investigations, including punishment credible evidence of responsibility for tor- of the perpetrators.157 In its General Com- ture or severe maltreatment should be tried ment 20, the Human Rights Committee has and, if found guilty, punished. Legal provi- moreover urged States to provide specific sions granting exemptions from criminal re- information on the remedies available to sponsibility for torturers, such as amnesties, victims of maltreatment and the procedure PART B – International standards in the Istanbul Protocol 37

that complainants must follow, and statis- • Many forms of torture leave very few tics on the number of complaints and how traces, and even fewer leave long-term they have been dealt with. physical signs • It is often difficult to prove beyond question that injuries or marks resulted from 2. ACTION AT THE NATIONAL torture and not from other causes.

LEVEL TO OFFSET DEFICIENCIES What a medical report can do is demon- IN PROSECUTIONS strate that the recorded injuries or behav- ioural patterns are consistent with (could Flaws in the investigative procedures may have been caused by) the torture described. lead to deficiencies in the prosecution of al- Where there is a combination of physi- leged perpetrators. There are a range of rea- cal and psychological evidence consistent sons for low successful prosecution rates. with an allegation, this will strengthen the These include ineffective investigations, and overall value of the allegation. Lawyers overly short deadlines for bringing criminal therefore, must recognise the importance of proceedings against alleged perpetrators. checking injuries sustained by detainees as The above procedural flaws differ from bar- well as signals of psychological abuse and riers which impede prosecutions altogether, that such indications must be examined by such as amnesty laws.158 an independent, qualified doctor as quickly as possible (so that these injuries can be Supporting evidence is vital to a successful documented as evidence in the greatest pos- prosecution, otherwise it is usually a case of sible detail). To play an active role in inves- one person’s word against another. Medical tigations, it is essential for lawyers to know evidence (both physical and psychological) how to document the state of health, both is probably the most important type of evi- psychological and physical, of the client, so dence that can be obtained and will usually as to be able to submit relevant information add strong support to witness testimony. to the responsible authorities and institutions. This may include requesting an inde- The Istanbul Protocol contains detailed pendent medical examination and medical guidelines on obtaining physical medi- report where necessary. cal evidence in Chapter V and psychological medical evidence in Chapter VI. It out- While medical evidence is important to show lines the type of evidence that investigators that torture has occurred; further evidence should try to obtain from different sources, is needed to identify the perpetrators and including through interviews. Where pos- establish their criminal responsibility. To sible, lawyers and doctors should interview this end, it is vital to draw on all available the alleged victims and obtain medical evi- sources of information that may constitute dence (physical and psychological), in par- evidence, such as statements by victim and ticular but by no means confined to, medical witnesses, custody records and the list of of- reports, circumstantial evidence, and wit- ficers on duty. ness statements (ensuring safeguards and techniques for the safety of witnesses).159

It is rare, however, for a medical report to be conclusive (proof with certainty that torture occurred), because: 38 A practical guide to the Istanbul Protocol – for lawyers

Practical steps person was in good health and then any evidence during his/her deten- • If it is not possible to arrange an ex- tion or after his/her release proving pert medical examination, lawyers physical or mental injuries while in should try to obtain any type of evi- custody. dence of the injuries sustained, such • Circumstantial evidence may also as prison medical records, photos, be helpful to the prosecution of a testimonies, etc. Even if this evi- torture case. For example, evidence dence cannot prove that the person of similar fact, e.g., reputed studies was tortured, it can prove that the of torture practices in the same or person suffered physical or mental similar prison carried out in a simi- damage during detention, and thus lar way to what the victim alleges; the burden of proof should in some human rights reports documenting cases shift to the State apparatus. consistent patterns of abuse. Also, As the European Court of Human lawyers should ensure that there Rights ruled, where an individual is evidence to sustain all support- is detained in good health but is in- ing facts: e.g., that the victim was jured at the time of release, it is in- in prison at the time that the torture cumbent on the national authorities is alleged to take place; that the to provide a plausible explanation alleged perpetrator was a public as to the causing of the injury.160 official and on duty at the time of It is important therefore, to have the said event; that there was a spe- medical records, testimonies, pho- cific purpose for causing the victim tos, etc from the detainees before harm (e.g., to elicit information, to being in custody proving that the intimidate or threaten). PART B – International standards in the Istanbul Protocol 39

V. INTERNATIONAL STANDARD ON RIGHT TO AN EFFEC- TIVE REMEDY AND ADEQUATE REPARATIONS FOR VIC- TIMS OF TORTURE AND CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

The right to reparation for victims of torture 1. FORMS OF REPARATION and cruel, inhuman or degrading treatment and punishment is well-established: it is a Restitution fundamental principle of general international law that the breach of an international This form of reparation consists of re-es- obligation entails the duty to afford repara- tablishing the status quo ante, i.e. the situ- tion.161 The prohibition to commit torture is ation that existed prior to the occurrence of an obligation of all States under general in- the wrongful act. Although it is generally ternational law, and therefore, if breached, a not possible to “undo” the pain and suffer- new international duty to afford reparation ing caused by human rights violations, cer- arises independent of any treaty obligation. tain aspects of restitution might be possible – such as restoring an individual’s liberty, Under international law: “Reparation must, enjoyment of human rights, identity, family as far as possible, wipe-out all the conse- life and citizenship; return to one’s place of quences of the illegal act and re-establish the residence; restoration of employment and situation which would, in all probability, have 165 return of property. existed if that act had not been committed”.162 In other words, reparation for torture must be adequate/appropriate; that is proportional to the harm suffered and should as Compensation far as possible restore the life and dignity of the torture victim. For example, the Human The role of compensation is to fill in any Rights Committee established that although gaps so as to ensure full reparation for the damage suffered (as long as the damage is fi- compensation may differ from country to 166 country, adequate compensation excludes nancially assessable). The Inter-American purely “symbolic” amounts of compensa- Court held, in the Velásquez Rodríguez Case tion.163 that “it is appropriate to fix the payment of ‘fair compensation’ in sufficiently broad terms in order to compensate, to the extent According to the UN Basic Principles and 167 Guidelines on the Right to a Remedy and possible, for the loss suffered.” Awards of Reparation for Victims of Gross Violations of compensation encompass material losses International Human Rights Law and Seri- (loss of earnings, pension, medical expens- ous Violations of International Humanitar- es, etc) and non-material or moral damage ian Law, the forms that reparation may take (pain and suffering, mental anguish, hu- include: restitution, compensation, reha- miliation, loss of enjoyment of life and loss bilitation and satisfaction and guarantees of of companionship or consortium), the latter non-repetition.164 usually quantified on the basis of an equi- table assessment. 40 A practical guide to the Istanbul Protocol – for lawyers

Rehabilitation 2. EFFECTIVE PROCEDURAL REMEDIES Rehabilitation is an important component of reparation and it is a right specifically At the same time, international human rights recognised in international human rights 168 law requires States to provide effective pro- instruments. The UN Declaration of Ba- cedural remedies under domestic law to sic Principles of Justice for Victims of Crime guarantee adequate reparations to victims and Abuse of Power stipulates that: “victims of human rights violations. In other words, should receive the necessary material, medi- the right to reparation for torture and other cal, psychological and social assistance and human rights violations includes both, the support.” The Special Rapporteur on the right to substantive reparations/remedies right to reparation has noted that reparation (like compensation) and the right to effec- should include medical and psychologi- tive procedural remedies to obtain them (i.e. cal care and other services as well as legal 169 access to civil, administrative and criminal and social services. These services may avenues). This principle is incorporated in be provided “in kind” or the costs may form every international human rights instru- part of a monetary award. It is important to ment.171 distinguish between indemnity paid as way of compensation (for material and/or moral In fact, the right to a remedy for a violation damage) and money provided for rehabilita- of a human right protected under any of the tion purposes. international instruments is itself a right expressly guaranteed by the same and, in case of fundamental human rights, it has been Satisfaction and guarantees of recognised as non-derogable.172 For example, non-repetition procedural safeguards against torture and other forms of ill-treatment, like the right of Satisfaction and guarantees of non-repeti- access to a lawyer while in detention, are not tion refer to the range of measures that may subject to limitations or derogation. Accord- contribute to the broader and longer-term re- ingly, there is an independent and continu- storative aims of reparation. A central coming obligation to provide effective domestic ponent is the role of public acknowledge- remedies to protect human rights: during ment of the violation, the victims’ right to peace or war, and when declaring a state of know the truth and to hold the perpetrators emergency. Human rights instruments guar- accountable.170 The Basic Principles on Rep- antee both, the procedural right to an effec- aration list measures like: cessation of con- tive access to a fair hearing (through judicial tinuing violations; judicial sanctions against and/or non-judicial remedies)173 and the sub- persons responsible for the violations; an stantive right to reparations (such as restitu- apology, including public acknowledgement tion, compensation and rehabilitation).174 of the facts and acceptance of responsibility; commemorations and tributes to the victims A remedy must be effective in practice as well and implementing preventative measures, as in law, particularly in the sense that its ex- such as ensuring effective civilian control of ercise must not be unjustifiably hindered by military and security forces, protecting hu- acts or omissions by national authorities.175 man rights defenders and persons in the legal, media and other related professions. The nature of the procedural remedies (judicial, administrative or other) should be in accordance with the substantive rights violated and the effectiveness of the remedy in granting appropriate relief for such PART B – International standards in the Istanbul Protocol 41

violations.176 In the case of serious human that a detainee comes into contact with. Con- rights violations, like torture and other sequently, it may be the first opportunity for forms of ill-treatment, remedies need to be a detainee to raise allegations of torture and judicial.177 for an investigation into these allegations to be initiated. Even in the absence of an ex- As explained by the UN Human Rights Com- press allegation of ill-treatment, the judge mittee, “administrative remedies cannot be should request a forensic medical examina- deemed to constitute adequate and effective tion whenever there are grounds to believe remedies[…], in the event of particular seri- that a person brought before him/her could ous violations of human rights”.178 Further- have been subjected to torture.182 In equal more, the individual right of access to court terms, provisional orders or injunctions are for the determination of civil rights and important safeguards against torture. Where obligations regarding serious human rights a person is believed to be at risk during de- violations is a fundamental part of interna- tention and/or interrogation, it is possible to tional human right law.179 apply to a court for an injunction against the public officials in question. By stating that remedies need to be judicial in nature, international jurisprudence refers The issue of effective remedies presents a to the type of remedy that States need to af- particular challenge in times of transition ford for victims of grave human rights vio- following dictatorship or conflict.183 Most lations. For example, in the case of torture, societies coming out of a period of mass States need to afford: violations, even with the best of will, will have weak legal infrastructure, competing • An effective remedy for victims to start demands for scarce resources, and a vast a criminal investigation leading to the number of victims with a range of rights prosecution and punishment of the per- and needs. In response to these challenges, petrators by a judicial body and some States have developed policies and • The right of victims to claim reparations specific administrative programmes, such before a judicial court. as Truth and Reconciliation Commissions, to deal with reparation for mass claims. How- In torture cases, non-judicial remedies, such ever, the right to an effective remedy, includ- as administrative or other remedies, are not ing judicial remedies, clearly signifies that considered sufficient to fulfil States’ obliga- such reparation mechanisms can only ever tions under international law. This means complement rather than substitute access to that even if a torture victim wishes to apply courts. Ideally, the design of administrative for compensation through an administrative reparation programmes will be sufficiently procedure, he/she should have the right, inclusive, responsive to the wishes and in law and practice, to bring civil claim needs of victims, transparent, easy to use, ef- against the individual and State in a judicial ficient and seen as just, that the advantages court.180 of using the programme will outweigh the prospect of gaining reparation before the Similarly, remedies whereby detainees can courts or other established mechanisms. challenge the legality of their detention, need to be judicial — in other words before a judicial authority (such as habeas corpus and amparo).181 This type of remedy is also an important tool in combating torture because often the judge will be the first public official unrelated to the place of detention 42 A practical guide to the Istanbul Protocol – for lawyers

3. NATIONAL APPLICATION compensation could be made on behalf of the victim(s). Such actions may have to be a. Remedies at the national level taken to a specific court, e.g. a constitutional court, and arguments based on human rights principles may support applications Criminal proceedings in other types of cases. A person alleging that a public official has tortured him/her can generally seek to initi- National Human Rights Institutions/ ate criminal proceedings by making a com- Commissions (NHRCs) plaint to the police, the local public prosecu- Most countries in Africa, the Middle East tor or a local court. In many domestic legal and other parts of Asia have preferred to es- systems, a prosecution will only be opened tablish national human rights institutions, if the public prosecutor decides that it is ap- instead of police complaints authorities. propriate, and a victim cannot directly in- Such institutions have also been set up in a stitute proceedings. Military personnel can few countries in Latin America and Europe, generally be prosecuted in the same way as as well as Canada. While the Principles re- any other official, but may be subject to spe- lating to the status of national institutions cial internal military discipline, including (Paris Principles) serve as a point of refer- the possibility of court-martial (trial before ence for the establishment of NHRCs,184 in a military court applying military law). In practice NHRCs differ considerably in virtu- some systems, it may be possible to pursue ally all respects. In some cases, NHRCs may compensation claims in the course of the be able to investigate human rights viola- criminal proceedings. tions on their own motion; in others they have only been vested with the mandate to Civil proceedings carry out (initial) investigations into human Civil proceedings might be based on provi- rights violations that amount to criminal sions in a national code of obligations, some conduct. It is common for NHRCs to receive form of legislation or on the common law. reports or complaints from individuals or These provisions deal with many different groups concerning the incidence of grave issues, but they all involve a breach of some violations of human rights, including tor- sort of general duty that everyone has, to ture, and conduct an inquiry. There is usu- exercise care in their relations with others. ally no time limit for bringing complaints In general, civil proceedings are resorted to and if the commissions consider there to be where an individual wishes to obtain com- sufficient preliminary evidence, a summary pensation, usually financial, from the per- of the findings or a recommendation will be son responsible. The proceedings are judi- submitted to the competent authorities. cial in nature and take place in the ordinary courts. Ombudsman institutions The institution of the Ombudsman was first Human/fundamental rights proceedings established in Sweden as early as 1809 to in national courts ensure accountability of the public adminis- If the country has incorporated human tration. There has since been a proliferation rights principles into its national legisla- of Ombudsman institutions, referred to as tion, e.g. through a Constitution, a Bill of the Public Defender (Defensor del Pueblo) in Rights or through legislation which allows Spain and some countries in Latin America. international treaties to be enforced in do- The term Ombudsman has also been em- mestic courts, then a case could be taken ployed by bodies that are, by their nature, to the appropriate court for a declaration closer to human rights commissions or po- of a violation in a particular case or pattern lice complaints authorities. While some of cases. It is also possible that a claim for PART B – International standards in the Istanbul Protocol 43

Ombudsman institutions have the power to sufficient evidence, authorities are required receive and investigate complaints about to prosecute the alleged perpetrator and if police torture, the mandate of most is con- found guilty, to punish him/her accordingly. fined to dealing with complaints about public maladministration.185 The only exception As well, to guarantee the efficiency of the is perhaps in Latin America where so-called process, there needs to be procedural op- Ombudsman offices have been set up to ef- portunities to challenge the steps and deci- fectively fulfil the role of police oversight sions taken by authorities during criminal bodies.186 proceedings (e.g. when closing an investigation or when dropping prosecutions). For Administrative proceedings example, in countries with a common law Examples of administrative remedies, which system, it is sometimes possible to start a might be relevant to a victim of torture, private prosecution when the police decides could include an application to a compen- not to prosecute. Similarly, within the civil sation commission set up to provide com- law tradition, where the investigative police pensation to victims of violent crimes, or a is normally supervised by the judiciary, it is submission to a police complaints authority. possible to challenge a decision to close an Administrative proceedings do not necessar- investigation or not start a prosecution, be- ily take place before a regular judge. Instead fore an investigative judge. they will often involve decision-making by expert tribunals, or officials with special In some countries, courts have the possibil- expertise or responsibility for a particular ity to order compensation or other remedial subject area. measures against the convicted person in criminal trials. But this cannot substitute Disciplinary proceedings the right of torture victims to civil redress. There are typically disciplinary proceedings Notwithstanding the legal systems, victims for those internal to the police, the military, have a right under international law to bring other branches of the security forces and the a civil claim against the alleged perpetrators state administration. These are non-judicial and/or the State, and this right is indepen- proceedings in which a case is considered by dent of any criminal prosecutions or their a superior or superiors of the public official. results. A complaint can be lodged with a superior or with the appropriate oversight body, but Although there are different domestic legal the decision to initiate proceedings may systems, within its domestic procedures, only be taken internally. The types of sanc- States need to afford effective access to jus- tions which may be imposed in disciplinary tice and adequate reparations for victims of proceedings are normally related to the job, torture proportional to the harm suffered (in- and could include withholding pay, tempo- cluding rehabilitation and compensation).187 rary suspension from work, reassignment to So for example, a national human rights another post or even dismissal. commission may serve as a supervisory body to guarantee the impartiality of police inves- Although there can be several remedies tigations, but it cannot substitute criminal available at the national level, to be effec- proceedings. The same applies to adminis- tive, domestic remedies need to comply with trative boards, where even though victims international standards. In other words, of crimes can claim compensation, these torture victims should have access to effec- boards cannot substitute the right to bring tive complaint mechanisms; authorities are civil proceedings before a court. required to start a prompt and impartial criminal investigation, and where there is 44 A practical guide to the Istanbul Protocol – for lawyers

4. ACTION AT THE NATIONAL institutionalised, the desirability for survi- LEVEL TO IMPROVE IMPLEMEN- vors of torture to bring a lawsuit against a public official or the State is extremely low. TATION OF THE RIGHT TO AN Additionally, the costs for bringing civil EFFECTIVE REMEDY AND REPA- claims are normally very high and legal aid RATION is usually not available. The option of filing a supplementary lawsuit as part of criminal proceedings is therefore an affordable and National legislation in most countries does accessible option. However, the effective- not explicitly provide for any form of repa- ness of this remedy is limited for several ration for serious human rights violations, reasons such as its dependency on effective including torture. Several countries have investigations and prosecutions (these pre- adopted laws that allow survivors of torture requisites are usually absent) and the fact to claim compensation against the State that the reparation is often confined to com- for wrongful conduct of their officials, nor- pensation awarded against individual per- mally as a matter of public law, but others petrators. In some countries, compensation only allow suits against individuals through can be awarded as part of the punishment normal civil procedures. However, the pro- in criminal cases yet the torture victim can- cedures for claiming compensation are often not demand such compensation as a right cumbersome and reparation is confined to because it is at the discretion of the court to specific types of violations (like personal in- impose punishment. jury). Compensation awards that have been made often do not reflect the gravity of tor- Several countries provide for constitutional ture as a human rights violation, and courts remedies by way of application to the high- seem reluctant to afford additional forms of est courts and such applications have proved reparation, such as rehabilitation. effective in a few countries, however, time restrictions on applications and the lack of In both civil and common law countries, locus standi for relatives of torture victims most legal systems provide in their tort law decreases the effectiveness of this remedy. that the wrongful infliction of personal inju- Most national human rights commissions ry carries a liability for reparation, particu- have the authority to recommend repara- larly by paying compensation. In the major- tion for human rights violations. Although, ity of countries both the individual public in some countries, these commissions rarely official and the State are jointly liable. Gen- recommend reparation and the amount of erally, the effectiveness of civil law remedies compensation recommended, if any, tends is hampered by different factors including to be low. the lack of access to courts, short time lim- its to initiate proceedings, high legal costs and the difficulty of proving the claim in the absence of sufficient evidence.188 In some countries a civil court can order the relevant national authority to take disciplinary sanctions against the public official who perpetrated torture, however the effectiveness of this avenue of recourse is limited as such court orders often remain non-enforced.

In several countries the outcome of civil proceedings is linked to the verdict in a criminal case. In countries where torture is PART B – International standards in the Istanbul Protocol 45

Practical steps to improve imple- remedy and adequate reparation mentation of the right to an effec- through the media and other tive remedy and reparation channels • Lobby for adequate funding for • Lobby for national legislation to institutions that offer rehabilita- ensure that torture victims have tive care for torture victims and an effective and enforceable affordable access to medical ser- right to prompt and adequate vices reparation • Support efforts by national hu- • Lobby for national legislation man rights commissions, NGOs to protect torture victims, their or other bodies to monitor the ef- lawyers and witnesses from in- fectiveness of domestic remedies timidation and to ensure that and forms of reparations award- allegations of intimidation are ed to torture victims through effectively investigated systematic data collation and • Improve access to domestic rem- recording edies for torture victims by im- • Initiate private prosecutions on proving legal aid and assistance behalf of torture victims and services offered by lawyers seek to increase victims’ empow- • Through appropriate channels, erment through allowing victims such as lawyers groups and bar to play a central role in proceed- associations, urge the judiciary ings to take into account the serious- • Utilise regional and international ness of torture as a human rights avenues, in particular individual violation complaints procedures before • Take steps to encourage the human rights bodies where award of rehabilitation as a form available, with a view to obtain- of reparation, in addition to fair ing decisions and judgments that and adequate monetary compen- oblige States to undertake sys- sation temic changes to provide effec- • Highlight bureaucratic proce- tive remedies and reparation dures and other obstacles for • Seek domestic implementation torture victims and survivors to of decisions by regional or inter- exercise their right to an effective national human rights bodies. 46 A practical guide to the Istanbul Protocol – for lawyers ANNEX INTERNATIONAL AND REGIONAL HUMAN RIGHTS SYSTEMS

I. PREVENTION MECHANISMS

1. INTERNATIONAL (UNIVER- The urgent appeal procedure is designed to SAL) MECHANISMS respond urgently to information reporting that an individual may be at risk of torture and is used to prevent possible incidents of a. United Nations Special Rappor- torture. It will therefore be used only where teur on the Question of Torture information is very recent. It is a non-accu- satory procedure, which means that it mere- The Special Rapporteur’s remit is to provide ly asks the Government to take steps to make the United Nations Human Rights Council sure that the person is not tortured, without with information on governments’ legisla- adopting any position on whether or not the tive and administrative actions in relation fear of torture might be justified. to torture and the extent to which State Par- ties are fulfilling their obligations under the Standard communications are transmitted United Nations Convention against Torture. to governments on a periodic basis and contain both allegations concerning individual Individuals can send allegations of torture cases (individual allegations) and those con- to the attention of the Special Rapporteur on cerning general trends, patterns and special Torture. Upon receiving these allegations, factors contributing to the practice of torture the Special Rapporteur’s dialogue with a in a country (general allegations). government can begin in one of two ways. If the Rapporteur believes that the allegations These communications are transmitted to he has received are credible, he will either the government against which the allega- transmit an urgent appeal or raise the alle- tions have been made, in order to give that gation in a standard communication. government an opportunity to comment on them. Depending on the response received ANNEX – International and regional human rights systems 47

from the government, the Special Rapporteur has been established to conduct visits to may inquire further or make recommenda- places of detention in the territory of State tions. All communications sent and received Parties.192 States must also establish, desig- throughout the year are listed in an annual nate or maintain independent “national pre- report, along with further recommendations ventative mechanisms” to conduct periodic and general comments as appropriate, in- visits to places of detention and formulate cluding recommendations about measures recommendations to national authorities which should be taken in order to eradicate for improvement in protection afforded to torture. detainees. The Optional Protocol also stipulates specific criteria to ensure the effective- The Special Rapporteur also undertakes ness and functional independence of such visits to countries that extend an invitation national preventative mechanisms. following his request. The country missions constitute an important means of monitor- (The Optional Protocol entered into force on 22 ing and of having a dialogue with both state June 2006. To see the status of ratification go to: authorities and civil society. The Special http://treaties.un.org/Pages/ViewDetails.aspx? src=TREATY&mtdsg_no=IV-9-b&chapter=4 Rapporteur invites and seeks the views of &lang=en). civil society groups and individuals on the country-specific situation and on steps that need to be taken in order to improve conditions. c. International Committee of the Red Cross The power of the Special Rapporteur lies with the Human Rights Council, and the public The International Committee of the Red Cross nature of the procedure. His conclusions are (ICRC) is a neutral and independent organi- not legally binding and he has no powers of sation which acts primarily in the context of enforcement. Nonetheless, not many states armed conflict, but also in situations of vio- are immune to public condemnation, and lence and political unrest. Its headquarters the publicity of his findings creates pres- are based in Geneva, Switzerland, but it has sure for states to co-operate by introducing field delegations in many countries where reforms or otherwise implementing his rec- its activities are required, usually through ommendations. an agreement with the governing authorities. One of its functions in these contexts (For more details on the information that should is to act as a neutral intermediary between be included in a communication to the United Na- detainees and their detaining authorities. Its tions Special Rapporteur on Torture, see the model representatives carry out visits to places of questions on the website of the Office of the High detention where persons are held in connec- Commissioner for Human Rights,189 or The Torture tion with the conflict or unrest, and examine Reporting Handbook (http://www.essex.ac.uk/torturehandbook/handbook(english-complete).doc) at the conditions of detention and treatment page 92.) and interview detainees about their experiences in detention. They require access to all places of detention where detainees falling b. Subcommittee of the United within their field of activity are kept, as well as the opportunity to interview the detainees Nations Committee against Torture themselves in private. In return, they maintain absolute confidentiality about what Following the entry into force of the Option- they observe during such visits. Because of al Protocol to the United Nations Convention 190 its special mandate and methods of work, against Torture, the Subcommittee of the the ICRC is often able to gain access to plac- United Nations Committee against Torture191 48 A practical guide to the Istanbul Protocol – for lawyers

es of detention which others cannot visit. The ICRC has its own network and personnel, and functions independently of other Special Rapporteur on Prisons and organisations. Nonetheless, it is willing to Conditions of Detention in Africa receive information about patterns of viola- Kairaba Avenue, P.O. Box 673 tions or enquiries about specific detainees Banjul, Gambia or missing persons which it may be in a po- Telephone: +220 392 962 sition to follow up. It prefers to receive such Fax: +220 390 764 information directly from relatives, but will Email: [email protected] accept it from NGOs on the understanding that the confidentiality protecting its work means that the NGO should not expect to receive feedback on any action taken. In the b. European Committee for the case of missing or disappeared persons, it Prevention of Torture may send a response to the family. In general, it will seek to make direct contact with The European Committee for the Prevention the family before it decides to take action. Its of Torture (CPT) visits places of detention in guiding principle is that any action it takes State Members of the European Convention is on behalf and in the name of the detainees for the Prevention of Torture and Inhuman themselves, not of other organisations. or Degrading Treatment or Punishment (in co-operation with national authorities) and If information is passed on to the ICRC, it examines the treatment of persons deprived should be as detailed as possible about the of their liberty with a view to strengthening arrest and detention. As a general rule, the the protection of detainees against torture. ICRC will tend to act more readily in cases in- Lawyers in countries that are Members to dicating a pattern than in individual cases. this Convention can submit information to the Committee on situations of concern.

2. REGIONAL MECHANISMS a. Special Rapporteur on Prisons European Committee for the Preven- tion of Torture and Inhuman or De- and Conditions of Detention in grading Treatment or Punishment Africa c/o Council of Europe 67075 Strasbourg Cedex, France The primary functions of the Special Rappor- Telephone: +33 3 88 41 39 39 teur are monitoring and fact-finding but it Fax: +33 3 88 41 27 72 can receive information from individuals and Email: [email protected] NGOs. Reports issued by the Special Rappor- web: www.cpt.coe.int teur on visits to prisons include allegations of ill-treatment of prisoners and detainees in police stations plus recommendations on how the relevant national authorities should (The Torture Reporting Handbook194 address identified concerns.193 It was created (http://www.essex.ac.uk/torturehandbook/ by a 1996 resolution of the African Commis- handbook(english-complete).doc) contains detailed sion on Human and Peoples’ Rights and it procedures on submitting information to the CPT on page 108.) is comprised of one independent expert that examines situations of persons deprived of their liberty within the territories of States. ANNEX – International and regional human rights systems 49

II. INTERNATIONAL REMEDIAL AVENUES

When domestic remedies fail to provide European Court of Human Rights monitors prompt and adequate redress to torture vic- compliance of state parties to the European tims, States commit a new violation under Convention on Human Rights or the UN Hu- international law independent of the sub- man Rights Committee monitors state com- stantive (torture) infringement, namely, a pliance the International Covenant on Civil breach to the international duty to afford and Political Rights (ICCPR). The way they reparation. It is at this moment that States monitor state compliance with their conven- become liable under international law and tional obligations is through reports that victims may seek reparation at an interna- states parties are obliged to submit periodi- tional forum. cally to the treaty body concerned and individual complaints procedures.196 There is currently no general international human rights court where individuals can Some of these complaints procedures do bring claims against States, so the forum offer a remedy for victims of torture, for varies depending on the international reme- example the European, African and Inter- dies available in each country. States have to American Courts of Human Rights have the agree to the jurisdiction of an international power to order the State to afford reparation court or body specifically allowing individu- directly to the victims, however the African als injured under their jurisdiction to bring Commission on Human and Peoples Rights, challenges against them. There are regional or the UN Human Rights Committee and human rights mechanisms like the Europe- Committee Against Torture can only recom- an, Inter-American and African systems and mend to the State to provide reparation to universal (UN) human rights bodies, like the the victims. But even if States do not comply Human Rights Committee or the Committee with these recommendations, victims may Against Torture. The International Criminal still find that a decision recognising their Court (ICC) does strictly speaking not form suffering and the wrong done to them is a part of the international human rights sys- form of satisfaction. tem as it deals with individual liability for international crimes rather than state re- Regional and international human rights sponsibility. It is nevertheless extremely bodies can also play an important role in important, being the first permanent in- fostering a domestic human rights culture ternational court that has jurisdiction to and in furthering domestic implementation investigate international crimes, namely of international standards relating to the genocide, crimes against humanity and war prevention, accountability and reparation crimes, and to prosecute and punish those for torture. A prominent example is the In- responsible. In an important innovation, ter-American Court of Human Rights whose the Rome Statute of the ICC allows victims jurisprudence has prompted a series of leg- to participate in proceedings to make their islative, institutional and practical changes views and concerns heard and to claim repa- on the domestic level, including, e.g., sig- ration, either from the individual perpetra- nificant progress in the abolishment of am- tor or through the Victims’ Trust Fund.195 nesty laws in Peru.197

Human rights systems are mechanisms that monitor States’ compliance with specific human rights conventions: for example the 50 A practical guide to the Istanbul Protocol – for lawyers

1. ACCESS TO INTERNATIONAL pact of the failure to investigate allegations COMPLAINT MECHANISMS: EX- on victims’ access to a remedy and reparations, the European jurisprudence suggests HAUSTION OF LOCAL REMEDIES that States will have violated victims’ rights when they have failed to investigate despite For the reasons described above, it is con- the existence of an “arguable claim”. In sidered under international law that States Veznedaroglu v. Turkey, the European Court should have an opportunity to repair any of Human Rights implied that a complaint human rights violation for which they are needs to be “arguable” in order to trigger the responsible before the international bodies State’s obligation to carry out an effective 198 intervene – consequently, international investigation.201 What constitutes an “argu- procedures for individual complaints gener- able claim” is determined on a case-by-case ally require domestic remedies to have been basis.202 “exhausted” before accepting to examine the complaint. However, there is no need to While the specific contents of this threshold exhaust domestic remedies when they are have not been made clear, some European ineffective or cannot provide fair and ad- cases refer to a ‘reasonable suspicion.’203 equate reparation. In such cases victims or According to the case law, allegations have their lawyers can seek recourse through the been classified as arguable when backed most appropriate individual complaints pro- up by at least some other evidence, be this cedure at the regional or international (uni- witness testimonies or medical evidence or 199 versal) level. through the demonstrated persistence of the complainant.204 For example, in a case before the European Court of Human Rights, a torture victim con- Through regional or international super- tended that the failure of a public prosecu- visory bodies, it is possible to invoke a na- tor to open criminal investigations hindered tional government’s obligations under inter- their ability to invoke available domestic national law to obtain a formal or informal remedies. It was stated that the victim was response to allegations of torture and obtain unable to ensure a criminal prosecution of a remedy for the victim of torture.205 For ex- perpetrators (for example by challenging the ample, the Inter-American Court of Human decision not to prosecute in administrative Rights has ordered governments to investi- courts) because the lack of an investigation gate violations and sanction perpetrators, as meant there had never been a formal deci- well as award compensation and rehabilita- sion not to prosecute. The Court held that the tion (medical treatment for victims and their failure of the public prosecutor to open an relatives).206 investigation was tantamount to undermin- ing the effectiveness of any other domestic Improving the general level of public aware- 200 remedies that may have been available. ness about the nature and scope of decisions made by international human rights bodies When assessing domestic remedies, the can only assist lawyers in their efforts to im- threshold applied by international human prove domestic implementation of interna- rights mechanisms to investigating alle- tional standards prohibiting torture. How- gations of torture effectively is very high. ever, it is extremely important that lawyers States have an obligation under internation- seek not only reparations for the torture (or al law to investigate allegations of torture. other violations) suffered by their clients, Although it is normally recognised that this but that they also argue before international obligations is not applicable to non-well- complaints mechanisms the failure of the founded allegations, in respect of the im- domestic system to provide effective proce- ANNEX – International and regional human rights systems 51

dural remedies and substantive remedies/ important where torture allegations concern reparations. certain identifiable categories of persons, namely children, women and racial groups.

2. INTERNATIONAL COM- The working methods of each of these bodies are very similar. All have the power to PLAINTS PROCEDURES examine and comment on state reports, and most are also able to receive individual com- Depending on the whether a country has plaints, or else are in the process of develop- specifically agreed to their jurisdiction, tor- ing such a procedure. ture victims may file a complaint before the following international (universal) human Similarly, depending on the whether a coun- rights mechanisms: try has specifically agreed to their jurisdiction, torture victims may file a complaint before the following international (regional) The United Nations Treaty Bodies human rights mechanisms: • Committee Against Torture (CAT): supervises the UN Convention The Regional Human Rights Mech- Against Torture anisms • Human Rights Committee (HRC): supervises the International • African Commission and Court Covenant on Civil and Political on Human and Peoples’ Rights Rights • European Court of Human Rights • Committee on the Elimination of • Inter-American Commission and Discrimination Against Women Court of Human Rights (CEDAW): supervises the UN Convention on the Elimination of Discrimination Against Women • Committee on the Elimination of (For further detail on how the UN HRC and CAT as Racial Discrimination (CERD): well as the three regional mechanisms work see An- supervises the UN Convention nex in this guide.) on the Elimination of Racial Dis- crimination 3. USE OF INTERNATIONAL

The Committee on the Rights of the Child COMPLAINTS PROCEDURES (CRC) supervises the UN Convention on AND REPORTING MECHANISMS the Rights of the Child. It can review State AND ENFORCEMENT reports and discussions are currently ongoing regarding the possibility of adopting a Decisions by regional or international hu- protocol to the CRC which would allow indi- man rights bodies that uphold a complaint vidual complaints. can both provide justice and reparation to the victim(s) and bring about systemic The most relevant for the purpose of torture- changes where the State concerned acts on related material are the CAT, which focuses the decision. However, even where a victim solely on the subject of torture, and the HRC, and those acting on his or her behalf secure which is a well-established body dealing a favourable decision, the respondent State with a range of human rights including tor- may be reluctant to comply.207 The enforce- ture. However, the other committees are very 52 A practical guide to the Istanbul Protocol – for lawyers

ment record of States is generally weak. glaring example is the recent decision by Most States have tended to pay compen- the Sri Lankan Supreme Court in the Singa- sation when ordered in judgments by the rasa case, where it held that Sri Lanka is not European Court of Human Rights and the bound to comply with the views of the UN Inter-American Court of Human Rights but Human Rights Committee because the ICCPR have often failed to comply with orders to is not implemented in national law and the institute investigations and to bring about views of the Committee are not binding.208 It legislative changes. The enforcement is even is therefore imperative for lawyers to follow- weaker with regard to quasi-judicial bodies, up decisions with the national authorities, such as the African Commission on Human to seek enforcement before domestic courts and Peoples’ Rights, the Committee against or to inform the relevant human rights bod- Torture and the Human Rights Committee ies about inadequate or lacking implemen- where states have either largely ignored de- tation. cisions or even openly refused to comply. A

III. REGIONAL HUMAN RIGHTS SYSTEMS

1. THE AFRICAN SYSTEM complaints at the request of the majority of FOR PROTECTION OF HUMAN its members. RIGHTS Provisional measures If the victim’s life, personal integrity or a. African Commission on Human health is in imminent danger, the Commis- and Peoples’ Rights sion has the power under Rule 111 of its Rules of Procedure to adopt provisional measures, Established by the African Charter on Hu- thereby urging the State concerned not to man and Peoples’ Rights, which came into take any action that will cause irreparable force on 21 October 1986 after its adoption damage to the victim until the case has been by the Assembly of Heads of State and Gov- heard by the Commission. The Commission ernment of the Organisation of African Unity can also adopt other urgent measures as it (OAU), the African Commission on Human sees fit. and Peoples’ Rights is charged with ensuring the promotion and protection of Human Admissibility of complaints and Peoples’ Rights throughout the African Individuals and organisations may lodge a continent. complaint with the African Commission alleging that a State Party to the African Char- The procedure followed by the Commission ter on Human and Peoples’ Rights has vio- in considering complaints is of a highly con- lated one or more of the rights guaranteed. fidential nature. Complaints can be made For a complaint to be admissible: by States (against other States Parties) or by others (physical or moral person, private or • The communication must include the au- public, African or international persons). In thor’s name even if the author wants to the latter case, the Commission considers remain anonymous • The communication must be compatible ANNEX – International and regional human rights systems 53

with the Charter of the OAU and with the officio investigation, obtaining information African Charter on Human and Peoples’ from any other source. Rights • The communication must not be written The decision/remedy in insulting language directed against On the basis of all of the information re- the State or the OAU ceived, the Commission will make its ‘obser- • The communication must not be based vations’ known to the parties. If a violation is exclusively on news from the media found, it will make recommendations to the • The complainant must have exhausted State Party concerned. However, the Com- all available domestic legal remedies mission does not have much power to secure • The communication must be submitted compliance with its recommendations. within a reasonable time from the date of exhaustion of domestic remedies • The communication must not deal with b. The African Court on Human a matter, which has already been set- and Peoples’ Rights tled by some other international human rights body. An African Court on Human and Peoples’ Rights was established on 25 January 2004. The merits Under Article 5 of the Protocol on the Estab- In accordance with Rule 119, if the Com- lishment of an African Court on Human and mission decides that a complaint is admis- Peoples’ Rights, those who are entitled to sible, it will inform the State concerned and submit cases to the Court include: the Com- the complainant. The State is then given 3 mission, the State Party which has lodged months to reply to the Commission providing a complaint to the Commission, the State explanations on the complaint and suggest- Party against which the complaint has been ing a way in which to remedy the situation. lodged at the Commission, the State Party These will be forwarded to the complainant whose citizen is a victim of the human rights who will be given an opportunity to reply. violation and African Intergovernmental Or- ganisations. In addition, Article 5(3) speci- Friendly settlement fies that “The Court may entitle relevant Non Once a communication is declared admis- Governmental organisations (NGOs) with sible, the Commission may offer its good of- observer status before the Commission, and fices to facilitate a settlement of the dispute. individuals to institute cases directly before If a friendly settlement is reached, a report it, in accordance with article 34 (6) of this containing the terms of the settlement is pre- Protocol.” Article 27 of the Protocol specifies sented to the Commission at its session. This that: “if the Court finds that there has been will automatically bring consideration of the violation of a human or peoples’ rights, it case to an end. If no agreement is reached, shall make appropriate orders to remedy the a report is submitted to the Commission and violation, including the payment of fair com- the Commission will take a decision on the pensation or reparation. In cases of extreme merits of the case. gravity and urgency, and when necessary to avoid irreparable harm to persons, the Court Deliberations shall adopt such provisional measures as it During the session in which the Commission deems necessary.” is hearing the substance of the complaint, the Parties can make written or oral presen- tations to the Commission. Where the Com- mission does not have sufficient information from the Parties, it may undertake an ex 54 A practical guide to the Istanbul Protocol – for lawyers

c. The Guidelines and Measures has set up a legal aid scheme for applicants for the Prohibition and Preven- who do not have sufficient means. tion of Torture, Cruel, Inhuman or Admissibility Degrading Treatment or Punish- In order for a claim to be admissible before ment in Africa (The Robben Island the Court, the following conditions must be Guidelines) satisfied:

The ‘Robben Island Guidelines’ were adopted • The complaint cannot be anonymous at the 32nd session of the African Commis- • The complaint must relate to the conduct sion in October 2002. The Guidelines en- of a State that has ratified the European courage ratification of regional and interna- Convention, and the conduct in question tional instruments prohibiting torture, and must have occurred after the ratification urge States to cooperate with the African • All domestic remedies must have been Commission on Human and Peoples’ Rights exhausted, or it must be demonstrated and its Special Rapporteurs as well as the that such remedies would have been in- United Nations Human Rights treaty bodies effective and thematic and country-specific special • The complaint must be filed within six procedures. Significantly, the Guidelines set months from the date on which domestic out a range of practical measures for States remedies were finally exhausted to undertake that are aimed at eradicating • The complaint cannot be incompatible torture, such as: putting in place safeguards with the provisions of the Convention or to prevent torture; ending impunity for al- manifestly ill-founded or an abuse of the leged perpetrators; and assisting survivors. right of application • Furthermore, Article 35 (2) (b) of the Con- vention specifies that the Court cannot 2. THE EUROPEAN SYSTEM deal with an application that is “sub- stantially the same as a matter that has FOR PROTECTION OF HUMAN already been examined by the Court or RIGHTS has already been submitted to another procedure of international investigation a. The European Court of Human or settlement and contains no relevant new information” Rights • The Court has detailed forms and explan- atory materials that explain what infor- The European Court of Human Rights was mation must be supplied when filing a established pursuant to the European Con- complaint. vention for the Protection of Human Rights and Fundamental Freedoms, which entered Examination on the merits into force in September 1953, as amended Once a case is determined to be admissible, by Protocol No. 11. Any Contracting State or the Court will put itself at the disposal of the individual claiming to be a victim of a vio- parties to pursue a friendly settlement and/ lation of the Convention may lodge a claim or proceed to a determination of the mer- alleging a breach of any of the Convention its of the complaint. The Court will, on the rights. Individual applicants may submit ap- basis of the evidence provided and through plications themselves, but legal representa- public hearings, make a finding as to the tion is recommended, and even required for merits of the complaint and a judgment will hearings or once an application has been be issued. declared admissible. The Council of Europe ANNEX – International and regional human rights systems 55

The Court has already determined that com- Individuals and organisations may petition plainants whose rights have been violated the Commission to examine complaints re- are entitled to just satisfaction. In some garding the violation of rights under the instances, it has found that a finding of a Charter and American Convention on Hu- violation in itself constituted “just satisfac- man Rights. A form for petitioning the Com- tion”, in other cases it has awarded both pe- mission is available on the Commission’s cuniary and non-pecuniary damages. In re- website. spect of claims for the restoration of rights, the Court has ruled that a breach imposes on Admissibility the State a legal obligation to put an end to Article 44 of the Convention allows the Com- the breach and make reparation for its con- mission to receive petitions on behalf of in- sequences in such a way as to restore as far dividuals, charging a State for violating any as possible the situation existing before the of the rights enumerated in the Convention. breach (restitutio in integrum). However, if The petitions may be filed by the victim him- restitutio in integrum is in practice impossi- self or by a non-governmental organisation ble, the respondent States are free to choose or another body on their behalf. Thus not the means whereby they comply with a judg- only victims of a violation have the right to ment in which the Court has found a breach, file private petitions. The prerequisites for and the Court will not make consequential admissibility are similar to those of other in- orders or declaratory statements in this re- ternational organs dealing with human right gard. However, in the last decade, the Court violations: has become more and more specific with the means that it considers adequate or appro- • The petitioner must have exhausted do- priate to comply with its judgments. mestic remedies in accordance with general principles of international law. Provisional/interim measures • The petition should be submitted within Rule 39 of the Rules of Court allows the a period of 6 months from the date on Court, at the request of a party or any other which the victim of the alleged violation person concerned, or on its own motion, to was notified of the final domestic judg- adopt interim measures. ment in his case.

The latter requirement, however, does not 3. THE INTER-AMERICAN SYS- prevent the admissibility of a petition if it can be shown that domestic remedies do TEM FOR PROTECTION OF HU- not provide for adequate due process, effec- MAN RIGHTS tive access to those remedies was denied, or there has been undue delay in the decision a. The Inter-American Commission on those remedies. The Commission rules of on Human Rights procedure provide that the respondent government has the burden of demonstrating the non-exhaustion of domestic remedies by The Inter-American Commission on Human the victim. Rights is an organ of the Organisation of American States (OAS), created to promote Precautionary/provisional measures the observance and defence of human rights The Commission may request that a state and to serve as consultative organ of the Or- take “precautionary measures” to avoid se- ganisation. It examines allegations of viola- rious and irreparable harm if it receives a tions of the Charter of the OAS and viola- complaint that a serious violation of human tions of the American Convention on Human rights is about to take place. The Commission Rights. 56 A practical guide to the Istanbul Protocol – for lawyers

may also request that the Court order “pro- the State Party must recognise the jurisdic- visional measures” in urgent cases which in- tion of the Court. This may be done by a dec- volve danger to persons, even where a case laration accepting the Court’s jurisdiction in has not yet been submitted to the Court. all cases or on the basis of reciprocity for a limited time or for a particular case. Examination of the merits The information about the petition is sent to As regards the advisory function of the the State concerned and the State is request- Court, Article 64 of the Convention provides ed to send its comments on the petition. If that any member state of the Organisation a response is received from the State, the may consult the Court on the interpretation author of the petition is asked to comment of the Convention or of other treaties on the on the State’s response. The Commission protection of human rights in the Ameri- may carry out its own investigations, con- can states. This right of consultation also duct on-site visits or hold a hearing on the extends to the organs listed in Chapter X of case in which both parties, the author of the the OAS Charter, within their sphere of ac- petition and the State concerned, would be tion. The Court may also, at the request of asked to present their arguments. The Com- any member state of the Organisation, issue mission may also offer to assist the parties an opinion on the compatibility of any of its in negotiating a friendly settlement. domestic laws with the aforementioned international instruments. Types of decision The Commission will prepare a report on the The States Parties to the Convention elected case, which may include recommendations the first seven judges of the Court at its sev- to the State concerned. The Commission may enth special session of the OAS General As- also present the case to the Inter-American sembly (May 1979). The Court was officially Court of Human Rights. installed in San José, Costa Rica, where it has its seat, on 3 September 1979. b. The Inter-American Court on Human Rights

The Inter-American Court of Human Rights is an autonomous judicial institution whose purpose is the application and interpretation of the American Convention on Human Rights.

The Court has adjudicatory and advisory jurisdiction. As regards its adjudicatory jurisdiction, only the Commission and the States Parties to the Convention are empowered to submit cases concerning the interpretation and application of the Convention. However, the procedures before the Commission called for under Articles 48-50 of the Convention must have been previously exhausted.

In addition, in order that a case against a State Party to be brought before the Court, Notes 57

NOTES

1. Available at http://www.unhchr.ch/ 40/020/2001) for reports of torture and ra- pdf/8istprot.pdf. cial discrimination. 2. UNGA Resolution 55/89 Annex, 4 December 10. See Counter-Terrorism and Torture, A Prim- 2000. er, available at http://www.irct.org/De- 3. Commission on Human Rights Resolution fault.aspx?ID=2678 2003/33, 57th meeting, 23 April 2003 [E/ 11. See UN Basic Principles on the Role of Law- CN.4/2003/L.11/Add.4].t yers, adopted by the Eighth UN Congress 4. Article 1, Convention against Torture and on the Prevention of Crime and the Treat- Other Cruel, Inhuman or Degrading Treat- ment of Offenders, 27 August-7 September ment or Punishment; UNGA resolution 1990. 39/46 of 10 December 1984, entry into force 12. The UN Principles of Medical Ethics Rel- 26 June 1987. evant to the Role of Health Personnel, Par- 5. The infliction of pain or suffering that is ticularly Physicians, in the Protection of not sufficiently severe or is not done in- Prisoners and Detainees Against Torture tentionally or not for a particular purpose and Other Cruel, Inhuman or Degrading may constitute cruel, inhuman, or degrad- Treatment or Punishment were adopted by ing treatment or punishment, which is also the UN General Assembly on 18 December prohibited under the Convention against 1982. Torture and other international law instru- 13. The Resolution on the Responsibility of ments. Physicians in the Denunciation of Acts of 6. See REDRESS, Not only the State: Torture Torture or Cruel or Inhuman or Degrading by Non-State Actors, Towards Enhanced Treatment was adopted by the World Medi- Protection, Accountability and Effective cal Association, 2003. Remedies, 2006 and Non-State Actors and 14. The Commission on Human Rights, in its Torture, A Primer, available at http:// resolution 2000/43, and the General As- www.irct.org/Default.aspx?ID=2678 sembly, in its resolution 55/89, drew the 7. In its General Comment on Article 7 of the attention of Governments to the Principles International Covenant on Civil and Po- contained in Annex I (the Istanbul Prin- litical Rights, the UN Human Rights Com- ciples) and strongly encouraged Govern- mittee considered that it is not desirable ments to reflect upon the Principles as a to draw up a list of prohibited acts or a useful tool in efforts to combat torture. precise distinction between them. Further- The Special Rapporteur on Torture recom- more, Sir Nigel Rodley, former UN Special mended in his General Recommendations, Rapporteur on Torture, considered that it UN Doc. E/CN.4/2003/68, 17 December is extremely difficult and indeed danger- 2002, para.26 (k) that: “countries should ous to establish a threshold to distinguish be guided by the Principles on the effective acts of torture from cruel, inhuman or de- investigation and documentation of tor- grading treatment. ture and other cruel, inhuman or degrading treatment or punishment (the Istanbul 8. See Hidden Scandal, Secret Shame (AI In- Principles) as a useful tool in the effort to dex ACT 40/38/00) for reports of torture combat torture.” perpetrated against children. 15. Ana, Beatriz and Celia Gonzalez Perez v. 9. See Crimes of Hate, Conspiracy of Silence Mexico (Report No. 53/01), Inter-American (AI Index ACT 40/016/2001) for reports Commission on Human Rights, 4 April of torture perpetrated against sexual mi- 2001. norities; Broken Bodies, Shattered Minds (AI Index: ACT 40/001/2001) for reports 16. See the Resolution on Guidelines and Mea- of the torture of women; Racism and the sures for the Prohibition and Prevention Administration of Justice (AI Index: ACT of Torture, Cruel, Inhuman or degrading Treatment or Punishment in Africa, adopt- 58 A practical guide to the Istanbul Protocol – for lawyers

ed by the African Commission on Human 23. State Parties are obliged to “maintain, des- and Peoples’ Rights at its 32nd Ordinary ignate or establish” under Art. 17 of the Session. Optional Protocol to the CAT. For guide- 17. In particular the UN Convention against lines on establishing independent and ef- Torture and Other Cruel, Inhuman or De- fective national preventative mechanisms, grading Treatment or Punishment, Articles see Preventing Torture at Home: A Guide to 7 and 10 of the International Covenant on the Establishment of National Preventative Civil and Political Rights, Article 3 of the Mechanisms, Amnesty International, IOR European Convention on Human Rights, 51/004/2004, 1 May 2004. Article 5 of the African Charter on Human 24. Report of CAT on systematic practice of and Peoples’ Rights, Article 5 of the Ameri- torture in Turkey under Article 20 of the can Convention on Human Rights and the UN Convention against Torture, A/48/44/ Inter-American Convention to Prevent and Add.1, 15 November 1993, para. 47. Punish Torture. Torture is also prohibited 25. CPT Standards: Substantive sections of under international humanitarian law, in the CPT’s General Reports, 12th General particular common Article 3 to the four Report, Council of Europe, CPT/Inf (2002) Geneva Conventions of 1949, and consti- Rev. 2003, para.40: “As from the outset of tutes an international crime, both in its its activities, the CPT has advocated a trin- own right and as an element of genocide, ity of rights for persons detained by the crimes against humanity and war crimes. police: the rights of access to a lawyer and See on the obligations of states parties to a doctor and the right to have the fact under the Convention against Torture, RE- of one’s detention notified to a relative or DRESS, Bringing the International Prohibi- another third party of one’s choice.” Prin- tion of Torture Home: National Implemen- ciples 15-19 of the Body of Principles. tation Guide for the UN Convention Against Torture and Other Cruel, Inhuman or De- 26. Principle 16 (2) of the Body of Principles; grading Treatment or Punishment, January Rule 38 of the Standard Minimum Rules for 2006. the Treatment of Prisoners. The Interna- tional Court of Justice has in the LaGrand 18. See O.A.S. Treaty Series No. 67. Case (Germany v. United States of America), 19. For a summary of findings, see REDRESS, ICJ Reports 2001, para.77 and the Case Con- Reparation For Torture: A Survey of Law cerning Avena and other Mexican Nation- and Practice in Thirty Selected Countries, als (Mexico v. United States of America), April 2003, at p. 41. [REDRESS’ Audit] Judgment of 31 March 2004, recognised 20. “In order to supervise the strict observance that Article 36 (1) of the Vienna Convention of relevant laws and regulations, places on Consular Relations creates individual of detention shall be visited regularly by rights for the national concerned. qualified and experienced persons ap- 27. Adopted by General Assembly resolution pointed by, and responsible to, a compe- 43/173 of 9 December 1988. tent authority distinct from the authority 28. As recognised by the UN Human Rights directly in charge of the administration of Committee, even when persons are under the place of detention or imprisonment.” “administrative detention”, which is a de- UN Body of Principles for the Protection of tention without charge or trial, authorised All Persons under Any Form of Detention or by administrative order rather than by ju- Imprisonment, Principle 29. dicial decree (normally applied by States 21. Report of the Special Rapporteur on tor- in emergencies) the legality of the deten- ture, N. Rodley E/CN.4/1995/34,12 January tion should be subject to judicial review. 1995, paragraph 926 (c). [Communication No. 560/1993, CCPR/ 22. Optional Protocol to the Convention C/59/D/560/1993, Hammel v. Madagas- Against Torture and Other Cruel, Inhuman car, Communication No. 155/1983,CCPR/ or Degrading Treatment or Punishment. C/29/D/155/1983; at paras 18.2 and 20; Adopted on 18 December 2002 at the fifty- see also Torres v. Finland, Communica- seventh session of the General Assembly tion No. 291/1988, CCPR/C/38/D/291/1988; of the United Nations by resolution A/ Vuolanne v. Finland, Communication No. RES/57/199. 265/1987, CCPR/C/35/D/265/1987, Portorreal Notes 59

v. Dominican Republic, Communication No. 40. CPT, 12th General Report, supra, para.42. 188/1984, CCPR/C/31/D/188/1984). See also 41. Radivoje v. Yugoslavia, Communication No. Habeas Corpus in Emergency Situations 113/1998, UN Doc. CAT/C/26/D/113/1998, (Arts. 27(2) and 7(6) of the American Con- para. 9.5; ECHR, Aydin v. Turkey, (1998) 25 vention on Human Rights, Advisory Opin- E.H.R.R. 251, para.107 and Ilhan v. Turkey, ion OC-8/87, 30 January 1987, Inter-Am. Ct. (2002) 34 E.H.R.R. 36, paras.101 et seq. H. R. (Ser. A) No. 8 (1987)]. 42. “Anyone who is deprived of his liberty by 29. The CPT Standards: Substantive sections arrest or detention shall be entitled to take of the CPT’s General Reports, CPT/Inf/E proceedings before a court, in order that (2002) - Rev.2003. that court may decide without delay on the 30. UN Special Rapporteur on the ques- lawfulness of his detention and order his tion of torture and other cruel, inhuman release if the detention is not lawful.” or degrading treatment or punishment, 43. “In order to protect non-derogable rights, A/56/156, 3 July 2001, paragraph 39. the right to take proceedings before a court 31. Basic Principles on the Role of Lawyers, to enable the court to decide without delay adopted by the Eighth United Nations Con- on the lawfulness of detention, must not gress on the Prevention of Crime and the be diminished by a State party’s decision Treatment of Offenders, Havana, Cuba, 27 to derogate from the Covenant.” (General August to 7 September 1990. Comment 29 on Article 4 of the ICCPR, UN 32. The UN Body of Principles for the Protection Doc. CCPR/C/21/Rev.1/Add.11 31 August of All Persons under Any Form of Detention 2001, para. 16). There are similar provi- or Imprisonment was adopted by General sions in the ECHR (Art. 5), the American Assembly Resolution 43/173 of 9 December Convention on Human Rights (Art. 7, and 1988. also Art. 25(1) in relation to amparo) and the Body of Principles on Detention (Prin- 33. Idem. ciple 32). 34. See report of the UN Special Rapporteur 44. Inter-American Commission on Human on the question of torture and other cruel, Rights, Advisory opinion request, quoted inhuman or degrading treatment or pun- in Inter-American Court of Human Rights, ishment to the UN Commission on Human Habeas Corpus in Emergency Situations, Rights, E/CN.4/2004/56, 23 December 2003. Advisory Opinion OC-8/87 of 30 January 35. Code of Conduct for Law Enforcement Offi- 1987, para. 12. cials, adopted by General Assembly resolu- 45. Report of the Special Rapporteur on Tor- tion 34/169 of 17 December 1979. ture on his visit to Chile, 4 December 1996, 36. Standard Minimum Rules for the Treatment E/CN.4/1996/35/Add.2, para. 76(l). of Prisoners, adopted by the First United 46. See Conor Foley, Combating Torture: A Nations Congress on the Prevention of Manual for Judges and Prosecutors, Human Crime and the Treatment of Offenders, held Rights Centre, University of Essex, 2003, at Geneva in 1955, and approved by the p.49. Economic and Social Council by its resolution 663 C (XXIV) of 31 July 1957 and 2076 47. CPT/Inf/E 2002 1 – Rev 2006 p.14, para.45. (LXII) of 13 May 1977. 48. Article 15 of the Convention against Torture 37. The UN Body of Principles for the Protection states: “Each State Party shall ensure that of All Persons under Any Form of Detention any statement which is established to have or Imprisonment was adopted by General been made as a result of torture shall not Assembly Resolution 43/173 of 9 December be invoked as evidence in any proceedings, 1988. except against a person accused of torture as evidence that the statement was made.” 38. Adopted by the African Commission on Article 14(3)(g) ICCPR provides that indi- Human and Peoples’ Rights, 32nd Session, viduals should not be compelled to confess 17-23 October 2002. guilt and Principle 21(1) of the UN Body of 39. See page 12, Report of the UN Special Principles for the Protection of All Persons Rapporteur of the Commission on Human under Any Form of Detention or Impris- Rights, A/56/156, 3 July 2001. onment states “It shall be prohibited to 60 A practical guide to the Istanbul Protocol – for lawyers

take undue advantage of the situation of one’s choice.” Principles 15-19 of the Body a detained or imprisoned person for the of Principles. purpose of compelling him to confess, to 54. Principle 16 (2) of the Body of Principles; incriminate himself otherwise or to testify Rule 38 of the Standard Minimum Rules for against any other person.” the Treatment of Prisoners. The Interna- 49. See in particular the decision of the Hu- tional Court of Justice has in the LaGrand man Rights Committee in Singarasa v. Sri Case (Germany v United States of America), Lanka, UN Doc. CCPR/C/81/D/1033/2001, ICJ Reports 2001, para.77 and the Case Con- 23 August 2004. See for a recent example cerning Avena and other Mexican Nationals of national jurisprudence the judgment of (Mexico v. United States of America), Judg- the UK House of Lords in A(FC) and others ment of 31 March 2004, recognised that (FC) (Appelants) v. Secretary of State for the Article 36 (1) of the Vienna Convention Home Department (Respondents), House of on Consular Relations creates individual Lords, [2004] UKHL 56, on appeal from: rights for the national concerned. [2002] EWCA Civ 1502. 55. See CPT, Report to the Government of Cy- 50. UN Document A/56/156, 3 July 2001, para. prus on the visit to Cyprus carried out by 39 (j). the European Committee on the Preven- 51. See for example Article 12 of the UN Con- tion of Torture and Inhuman or Degrading vention against Torture stating that na- Treatment or Punishment from 22-30 May tional authorities are obliged to proceed to 2000, CPT/Inf (2003) 1, para.41: “The right an investigation ex officio, wherever there for prisoners to have confidential access are reasonable grounds to believe that acts to appropriate authorities is an important of torture have been committed and what- additional safeguard against ill-treatment. ever the origin of the suspicion. In this respect, the CPT’s delegation noted that the prison authorities have installed 52. Concluding Observations of the Hu- locked boxes through which inmates may man Rights Committee: Bolivia, UN Doc. have direct access to the Director of Nico- CCPR/C/79/Add.74, 1 May 1997, para. 28; sia Central Prisons and to the Prison Board. Principle 13 of the Body of Principles and This is a welcome development, which Rule 35 of the Standard Minimum Rules for should be extended to allow prisoners di- the Treatment of Prisoners. According to rect access to bodies which are entirely in- the European Committee for the Prevention dependent of the prison system.” See also of Torture, “Rights for persons deprived of Principle 33 (3) of the Body of Principles: their liberty will be of little value if the “Confidentiality concerning the request persons concerned are unaware of their or complaint shall be maintained if so re- existence. Consequently, it is imperative quested by the complainant.” that persons taken into police custody are expressly informed of their rights without 56. Report of the Special Rapporteur, UN Doc. delay and in a language which they un- E/CN.4/2004/56, 23 December 2003, para. derstand. In order to ensure that this is 39 and Principles 11 (1), 32 (1) and 37 of the done, a form setting out those rights in a Body of Principles. straightforward manner should be system- 57. CPT, 12th General Report, supra, para. atically given to persons detained by the 50: “[…]the inspection of police establish- police at the very outset of their custody. ments by an independent authority can Further, the persons concerned should be make an important contribution towards asked to sign a statement attesting that the prevention of ill-treatment of persons they have been informed of their rights.” held by the police and, more generally, 12th General Report, supra, para.44. help to ensure satisfactory conditions of 53. CPT, 12th General Report, supra, para.40: detention. To be fully effective, visits by “As from the outset of its activities, the CPT such authorities should be both regular has advocated a trinity of rights for per- and unannounced, and the authority con- sons detained by the police: the rights of cerned should be empowered to interview access to a lawyer and to a doctor and the detained persons in private. Further, it right to have the fact of one’s detention no- should examine all issues related to the tified to a relative or another third party of treatment of persons in custody: the re- Notes 61

cording of detention; information pro- examination carried out by a doctor called vided to detained persons on their rights by the police). All medical examinations of and the actual exercise of those rights […]; persons in police custody must be conduct- compliance with rules governing the ques- ed out of the hearing of law enforcement tioning of criminal suspects; and material officials and, unless the doctor concerned conditions of detention. The findings of requests otherwise in a particular case, the above-mentioned authority should be out of the sight of such officials. It is also forwarded not only to the police but also important that persons who are released to another authority which is independent from police custody without being brought of the police” and Principle 29 of the Body before a judge have the right to directly of Principles: “(1) In order to supervise the request a medical examination/certificate strict observance of relevant laws and reg- from a recognised doctor”; Principle 24 of ulations, places of detention shall be vis- the Body of Principles: “A proper medical ited regularly by qualified and experienced examination shall be offered to a detained persons appointed by, and responsible to, or imprisoned person as promptly as pos- a competent authority distinct from the sible after his admission to the place of authority directly in charge of the admin- detention or imprisonment, and thereafter istration of the place of detention or im- medical care and treatment shall be pro- prisonment; (2) A detained or imprisoned vided whenever necessary. The care and person shall have the right to communicate treatment shall be provided free of charge” freely and in full confidentiality with the and 26: “The fact that a detained or im- persons who visit the places of detention prisoned person underwent a medical ex- or imprisonment in accordance with para- amination, the name of the physician and graph 1 of the present principle, subject to the results of such an examination shall be reasonable conditions to ensure security duly recorded. Access to such records shall and good order in such places” and Prin- be ensured. Modalities therefore shall be ciple 33 (1) according to which a detainee in accordance with relevant rules of do- may complain about torture “when neces- mestic law.” See also Aydin v. Turkey (1998) sary, to appropriate authorities vested with 25 E.H.R.R. 251 ECHR on the right to an ex- reviewing or remedial powers.” amination by medical professionals with 58. Principle 33 (4) of the Body of Principles appropriate and relevant training and ex- provides that no-one should be prejudiced pertise, at para. 107; Akkoç v. Turkey (2002) for making a complaint; Article 13 of the 34 E.H.R.R. 51 ECHR, para. 118’; Ogur v. UN Convention Against Torture expressly Turkey (2001) 31 E.H.R.R. 40, paras.89-90. requires States to protect complainants 62. See Henri Parot v. Spain, CAT, Communica- and witnesses from torture tion No. 6/1990, CAT/C/14/D/6/1990, para 59. Güleç v. Turkey (1999) 28 E.H.R.R. 121 ECHR 10.4 and Encarnacion Blanco Abad v. Spain, at para. 79. CAT, Communication 56/1996 at para 8.6. See also, Chris Ingelse, The UN Commit- 60. Aksoy v. Turkey (1997) 23 E.H.R.R. 553, para. tee against Torture: An Assessment, The 98; Ilhan v. Turkey, (2002) 34 E.H.R.R. 36,, Hague/London/Boston: Kluwer Law Inter- para. 92 Tekin v. Turkey (2001) 31 E.H.R.R. national, 2001, at p. 355. 4, para 66. 63. Eduardo Bleier v. Uruguay, HRC Communi- 61. CPT, 12th General Report, supra, para.42: cation No. R.7/30, U.N. Doc. Supp. No. 40 “Persons in police custody should have (A/37/40) at 130 (1982). a formally recognised right of access to a doctor. In other words, a doctor should 64. Assenov & Others v. Bulgaria, (24760/94) always be called without delay if a per- [1998] ECHR 98 (28 October 1998) and son requests a medical examination; po- Veznedaroglu v. Turkey. 32357/96) [2000] lice officers should not seek to filter such ECHR 166 (11 April 2000). requests. Further, the right of access to a 65. Maritza Urrutia Case, Judgment of 27 No- doctor should include the right of a person vember 2003, Inter-Am. Ct. H.R., (Ser. C) in custody to be examined, if the person No. 103 (2003), para. 110; See also, Velas- concerned so wishes, by a doctor of his/ quez Rodriguez v. Honduras, Judgment of her own choice (in addition to any medical 29 July 1988, Inter-Am Ct. H.R. (Ser. C) No. 62 A practical guide to the Istanbul Protocol – for lawyers

4 (1988), para 176; Affirmed in El Amparo 72. Adopted by General Assembly resolution Case, Judgment of 14 September 1996, In- 43/173 of 9 December 1988. Principle 33 (1). ter-Am. Ct. H.R. (Ser. C) No. 28 (1996), para. 73. Rule 36 (4). 61 of the judgment on reparations; Suárez Rosero Case, Judgment of 20 January 1999, 74. Stephens v. Jamaica, Communication No. Inter-Am. Ct. H.R. (Ser. C) No. 44 (1999), 373/1989, UN Doc. CCPR/C/55/D/373/1989 para 79. (1995), para.9.2. See also Irvine Reynolds v. Jamaica, Communication No. 587/1994, 66. General Recommendations of the Special UN Doc. CCPR/C/59/D/587/1994 (1997) Rapporteur, UN Doc. E/CN.4/2003/68, 17 and Wayne Spence v. Jamaica, Commu- December 2002, para. 26 (k). nication No. 599/1994, UN Doc. CCPR/ 67. The CAT uses the word “prompt” while the C/57/D/599/1994 (1996). Inter-American Convention uses “immedi- 75. See e.g. Democratic People’s Republic of ate”. Korea, UN Doc. CCPR/CO/72/PRK, 27 Au- 68. In Halimi-Nedzibi v. Austria, Communica- gust 2001, para.15. tion No. 8/1991, 18 November 1993 the com- 76. Labita v. Italy, Application no. 26772/95 plainant raised the issue of torture with an (unreported judgment of 6 April 2000), investigating judge on 5 December 1988. para. 131. The investigation into the alleged torture was only commenced in March 1990. The 77. Çiçek v. Turkey (2003) 37 E.H.R.R. 20 ECHR, Committee against Torture found that this para.149. Timurtas v. Turkey (2001) 33 was an unreasonable delay. In Encarna- E.H.R.R. 6 ECHR, para.89. See also Tekin cion Blanco Abad v. Spain, Communication v. Turkey (2001) 31 E.H.R.R. 4 ECHR, 67; 56/1996, February 1996, the complainant and Labita v. Italy, supra, para. 133 Tas v. alleged during her first arraignment on Turkey (2001) 33 E.H.R.R. 15 at paras. 70-72 terrorism-related charges that she had where the public prosecutor did not com- been tortured. It took another 15 days be- mence an investigation until two years af- fore the complaint was taken up by a judge ter the incident. and another four days before an inquiry 78. Assenov & Others v. Bulgaria, supra. was commenced. The investigation then 79. Indelicato v. Italy (2002) 35 E.H.R.R. 40 took 10 months, with gaps of between one ECHR, para.37. and three months between statements on 80. Cantoral Benavides v. Peru, Judgment of forensic evidence reports. The Committee August 18, 2000, Inter-Am. Ct. H.R., (Ser. C) found this too to be an unacceptable delay. No.69 (2000). See also Amnesty International: Combat- ing Torture: A Manual for Action, Amnesty 81. David Sloss The Domestication of Interna- International publication, AI Index: ACT tional Human Rights: Non-Self-Executing 40/001/2003, June 2003, p. 175. (Combating Declarations and Human Rights Treaties in Torture). 24 International Yale Journal of Interna- tional Law, 1999 129, at p. 143. See, also, 69. Without, however, specifying what exactly Annex to A/54/426 (Report of Sir Nigel Rod- constitutes “prompt.” See, for example, ley to the General Assembly, in accordance Concluding Observations : Egypt, UN Doc. with General Assembly Resolution 53/139): CAT/C/XXIX/Misc.4, 20 November 2002, “Principles on the Effective Investigation para. 5(b). and Documentation of Torture and Other 70. See Human Rights Committee General Com- Cruel, Inhuman or Degrading Treatment or ment 20, Concerning Prohibition of Torture Punishment”, UN Doc. E/CN.4/2001/66, 25 And Cruel Treatment or Punishment (Art. January 2001, para 1310; Principles 7 and 7) 10/3/1992, para 14; Aksoy v. Turkey, Ak- 33 of the Body of Principles. soy v. Turkey (1997) 23 E.H.R.R. 553 ECHR. 82. See the final report of Mr. L.M. Singhvi, 71. Report of the Special Rapporteur of 23 De- then Special Rapporteur of the Commission cember 2003, E/supra, at para. 39; General on Human Rights on the Independence of Recommendations of the Special Rappor- Judges and Lawyers, to the Sub-Commis- teur on Torture UN Doc. E/CN.4/2003/68 at sion on Prevention of Discrimination and para. 26(i). Protection of Minorities in 1985 (E/CN.4/ Notes 63

Sub.2/1985/18 and Add.1-6), para.79. See CO/80/LTU, 15 April 2004; Concluding Ob- also Inglese, Torture, supra, p. 336 and J. servations of HRC, Latvia, UN. Doc. CCPR/ Burgers and H. Danelius, The United Na- CO/79/LVA, 6 November 2003; Concluding tions Convention Against Torture: A Hand- Observations of HRC, Viet Nam, UN. Doc. book on the Convention Against Torture and CCPR/CO/75/VNM, 26 July 2002; Conclud- Other Cruel, Inhuman or Degrading Treat- ing Observations of HRC, Yemen, UN. Doc. ment or Punishment, Martinus Nijhoff, CCPR/CO/75/YEM, 26 July 2002; Conclud- 1988, p. 145. ing Observations of HRC, Azerbaijan, UN. 83. AI, Combating torture, supra, p. 175. Doc. CCPR/CO/73/AZE, 12 November 2001; Concluding Observations of HRC, Switzer- 84. See General Comment 20, supra, para 14. land, UN. Doc. CCPR/CO/73/CH, 12 Novem- 85. See Assenov & Others v. Bulgaria, supra. ber 2001; Concluding Observations of HRC, 86. It would appear that impartiality would Czech Republic, UN. Doc. CCPR/CO/72/ follow standard principles of natural jus- CZE, 27 August 2001; Concluding Observa- tice of nemo iudex in sua causa (no one may tions of HRC, Venezuela, UN. Doc. CCPR/ be a judge in his own cause). CO/71/VEN, 26 April 2001. 87. In the Encarnacion case, the Committee 90. Aktas v. Turkey, supra, para. 301; Ilhan v. against Torture concluded that the par- Turkey, supra, para. 101; Güleç v. Turkey ticular investigation was partial because (1999) 28 E.H.R.R. 121 ECHR, paras. 80-82; the court failed to take steps to identify Toteva v. Bulgaria, supra. the alleged perpetrators, and its refusal to 91. Finucane v. United Kingdom (2003) 22 allow the complainant to adduce further E.H.R.R. 29 at para. 68. See also Edwards v. evidence to the forensic doctor’s report. In United Kingdom, supra, at para. 70. Khaled Ben M’Barek v. Tunisia the magis- 92. See “Report on the Situation of Human trate who led the inquiry was found to be Rights in Mexico 1998”, Inter-American partial because of his failure to give equal Commission of Human Rights, September weight to evidence from both sides. Khaled 24, 1998, OEA/Ser.L/V/II.100, para 323. Ben M’Barek v. Tunisia, Communication 60/1996, UN Doc. CAT/C/23/D/60/1996. 93. Marritza Urrutia v. Guatemala, supra, para. 119. 88. Concluding Observation of CAT, Latvia, UN Doc. CAT/C/CR/31/3, 5, February 2004, 94. Report to the government of Cyprus on the para. 6(b). Concluding Observation of visit to Cyprus carried out by the CPT Com- CAT, Lithuania, UN Doc. CAT/C/CR/31/2, mittee, May 2000, supra, para. 13. 5, February 2004, para. 5(a) and (a); Con- 95. Report to the Spanish Government on the cluding Observation of CAT, Cambodia, visit to Spain carried out by the European UN Doc. CAT/C/CR/31/7, February 2004; Committee for the Prevention of Torture and Concluding Observation of CAT, Moldova, Inhuman or Degrading Treatment or Punish- UN Doc. CAT/C/CR/30/7, May 2003, para. ment (CPT), from 22-26 July 2001, CPT/Inf 6 (e); Concluding Observation of CAT, Cy- (2003) 22, para. 30. prus, UN Doc. CAT/C/CR/29/1, December 96. Preliminary observations made by the 2002, para 4 (1); Concluding Observation delegation of the European Committee for of CAT, The Netherlands and Antilles, UN the Prevention of Torture and Inhuman or Doc. A/55/44, paras. 181-188, May 2000, Degrading Treatment or Punishment (CPT) par.180 (f). See also, Ingelse, The UN Com- which visited Sweden, from 27 January to 5 mittee against Torture: An Assessment, The February 2003, CPT/Inf (2003) 27, p.5. Hague/London/Boston: Kluwer Law Inter- national, 2001, p. 398 and Burgers and H. 97. Radivoje v. Yugoslavia, Communication Danelius, The United Nations Convention 113/1998, para 9.6. Against Torture: A Handbook on the Con- 98. Encarnacion Blanco Abad v. Spain, supra, vention Against Torture and Other Cruel, para 8.8.and Hajrizi Dzemajl v. Yugoslavia, Inhuman or Degrading Treatment or Punish- Communication 161/2000, para 9.4 :Crimi- ment, Martinus Nijhoff, 1988, pp. 144-45. nal investigation must seek both to deter- 89. See, for examples, Concluding Observa- mine the nature and circumstances of the tions of HRC, Lithuania, UN. Doc. CCPR/ alleged act and to establish the identity of the persons involved. 64 A practical guide to the Istanbul Protocol – for lawyers

99. José Vicente and Amado Villafañe Chap- See, in this respect, UK Home Office, New arro, Luís Napoleón Torres Crespo, Angel Police Complaints System, Thematic Paper María Torres Arroyo and Antonio Hugues No.10, Recording of Complaints and Con- Chaparro Torres v. Colombia, Communica- duct Matters, August 2003. In several coun- tion No. 612/1995 (14 June 1994), UN Doc. tries, complainants may appeal against the CCPR/C/60/D/612/1995; Wayne Spence v. decision not to institute proceedings, e.g. Jamaica, Communication No. 599/1994, the Russian Federation, Georgia, CAT/C/48/ U.N. Doc. CCPR/C/57/D/599/1994 (1996); Add.1, 2 June 2000 para.104; Kyrgyzstan, Stephens v. Jamaica, Communication No. UN Doc. CAT/C/42/Add.1, 25 August 1999, 373/1989, U.N. Doc. CCPR/C/55/D/373/1989 para.88 and Republic of Korea, UN Doc. (1995); Katombe L. Tshishimbi v. Zaire, CAT/C/32/Add.1, 30 May 1996, para.194. Communication No. 542/1993, U.N. Doc. 113. Depending on the country, these initial de- CCPR/C/53/D/542/1993(1996). terminations may be subject to prior inter- 100. Askoy v. Turkey, supra, para. 95; Aydin v. nal review and open to external challenges Turkey, (supra, para. 103; and Kaya v. Tur- by those who lodged the complaint. key, supra, para. 89. 114. Art 12 of the UN Convention against Tor- 101. Timurtas v. Turkey, supra, para.88. ture. 102. Assenov & Others v. Bulgaria, supra, para. 115. See e.g. reports of the Special Rapporteur 104. on Torture following his missions to Paki- 103. Akkoç v. Turkey, supra, para.99. stan, UN Doc. E/CN.4/1997/7/Add.2, 15 Oc- tober 1996, para.86. 104. Bámaca Velásquez Case, Judgment of Feb- ruary 22, 2002, Inter-Am. Ct. H.R., (Ser. C) 116. See e.g. REDRESS, Taking Complaints of No. 91 (2002), (Merits, para.212 and Repa- Torture Seriously, Rights of Victims and ration, para.73). Responsibilities of Authorities, November 2004, p.22. 105. Blake Case, Interpretation of the Judgment of Reparations (art. 67 American Conven- 117. E.g. the Police Ombudsman for Northern tion on Human Rights), Judgment of Oc- Ireland. tober 1, 1999, Inter-Am. Ct. H.R. (Ser. C) 118. E.g. the Independent Police Complaints No. 57 (1999), Para.65. See also, Paniagua Council of Hong Kong is mandated to (inter Morales et al. Case, Judgment of March alia) monitor and if appropriate review the 8, 1998, Inter-Am. Ct. H.R. (Ser. C) No. 37 handling by the Police of complaints by (1998), para.91. the public and to identify faults in police 106. Velasquez Rodrigues, supra, para. 176. procedures: http://www.ipcc.gov.hk/en/ aboutus_01.htm; the Police Complaints Au- 107. Ibid., para.117. thority of Trinidad and Tobago may moni- 108. See, for example, Salman v. Turkey su- tor the investigation of complaints by the pra, para. 106; Tanrikulu v Turkey, supra, Police Complaints Division to ensure that para.109; Gül v. Turkey (2002) 34 E.H.R.R. the investigation is conducted impartially: 28, para.89. http://www.pca.gov.tt/about/default.asp. 109. The Torture Reporting Handbook by Ca- 119. See Birgit Lindsnaes, Lone Lindholt and mille Giffard, Human Rights Centre, Essex Kristine Yigen, National Human Rights In- University, UK, 2000. stitutions, Articles and working papers, The 110. Either the examining magistrate in certain Danish Centre for Human Rights, 2001, Ap- common law countries, or the investigat- pendix III, p.228. ing judge in civil law systems. See separate 120. REDRESS, Taking Complaints of Torture Se- section on Judges below for a fuller discus- riously, Rights of Victims and Responsibili- sion of their role. ties of Authorities, November 2004, p.42. 111. As is the case in Ireland; see e.g. section 121. See e.g. National Human Rights Commis- 4 (2) of the Garda Siochana (Complaints) sion of India: http://nhrc.nic.in/ Act, 1986 in Ireland. 122. See Istanbul Protocol, para.77. 112. Complainants have the right to challenge 123. Ibid. the non-recording of a complaint according to new procedures in England and Wales. 124. Ibid., para.103. Notes 65

125. Michael Peel, Noam Lubell and Jonathan 141. See, in relation to the PONI, Section 13, Po- Beynon, Medical Investigation and Docu- lice (Northern Ireland) Act 2003. mentation of Torture: A Handbook for 142. See for example the role of the Centre Health Professionals, Human Rights Cen- for the Administration of Justice (CAJ) in tre, University of Essex, 2005, pp.33-34. Northern Ireland, Liberty in the United 126. Principles on the Effective Investigation Kingdom and the Centre for the Study of and Documentation of Torture and Other Violence and Reconciliation in South Af- Cruel, Inhuman or Degrading Treatment rica. or Punishment, at Annex I to the Istanbul 143. For example, the Supreme Court of Sri Protocol, para. 6(b). Lanka, has ordered the national authori- 127. Istanbul Protocol, para.95. See also Article ties to carry out investigations into alle- 13 (2) of the UN Convention against Torture gations of torture. See e.g. Abasin Banda provides “Steps shall be taken to ensure v. Gunaratne, SC (FR) 109/95, SCA 623/00; that the complainant is protected against SCA363/00 and V v. Mr. Wijesekara and Oth- all ill-treatment or intimidation as a con- ers, Supreme Court, Sri Lanka,. SC App No. sequence of his complaint or any evidence 186/2001, 24 August 2002. given.” 144. For a list of the different types of bodies 128. Concluding Observations of the Committee and mechanisms with authority to conduct Against Torture on Sri Lanka’s state party investigations that exist in various coun- report, UN Doc. CAT/C/LKA/CO/2, 15 De- tries, see Combating Torture, page 177. cember 2005, para. 15. 145. For more details on the findings from a 129. REDRESS, Taking Complaints of Torture Se- review of law and practice on the right to riously, Rights of Victims and Responsibili- reparation in different countries, see Audit ties of Authorities, November 2004, p.33. Project: A Survey of the Law and Practice 130. General Recommendations of the Spe- of Reparation for Torture in 30 Countries cial Rapporteur on Torture, UN Doc E/ Worldwide, REDRESS, April 2003. CN.4/2003/68, 17 December 2002, para. 146. For more information, Audit Report: A Sur- 26(k). vey of the Law and Practice of Reparation 131. See Istanbul Protocol, Part IV. for Torture in 30 Countries Worldwide, published by REDRESS, April 2003. 132. Ibid., para.89. 147. The principle aut dedere aut judicare (the 133. Ibid., para.99. obligation to either extradite or prosecute) 134. Michael Peel, Noam Lubell and Jonathan is well established in international law. See Beynon, Medical Investigation and Docu- REDRESS’ Amicus Brief on the Legality of mentation of Torture: A Handbook for Amnesties under International Law, http:// Health Professionals, Human Rights Cen- www.redress.org/casework/AmicusCuriae- tre, University of Essex, 2005, p.57. Brief-SCSL1.pdf. See Universal Jurisdiction 135. See articles 10 and 11 of the UN Convention and Torture, A Primer, available at http:// against Torture. www.irct.org/Default.aspx?ID=2678 136. REDRESS, Taking Complaints of Torture Se- 148. The former Special Rapporteur on Torture riously, Rights of Victims and Responsibili- recommended to Chile that all allegations ties of Authorities, November 2004, p.26. of Torture committed since 1973 (some cov- ered by the Amnesty Law) should be sub- 137. Ibid. p.24. ject of a thorough public inquiry and that 138. Concluding Observations of the Committee “in cases where the evidence justifies it… Against Torture on Hungary’s State Party those responsible should be brought to Report, UN Doc. CAT/C/HUN/CO/4, 6 Feb- justice”, except where the proceedings are ruary 2007, para. 16(a). barred by a statute of limitations. (Ques- 139. REDRESS, Taking Complaints of Torture Se- tion of the Human Rights of All Persons riously, Rights of Victims and Responsibili- Subjected to Any Form of Detention or ties of Authorities, November 2004, p.24. Imprisonment, in particular: Torture and 140. See http://www.policeombudsman.org/ Other Cruel, Inhuman or Degrading Treat- howtocomplain.cfm ment or Punishment. Report of the Special 66 A practical guide to the Istanbul Protocol – for lawyers

Rapporteur, Mr. Nigel S. Rodley, submitted sentence is generally appropriate, Ingelse, pursuant to Commission on Human Rights The UN Committee against Torture: An As- resolution 1995/37, para 76; Addendum, sessment, The Hague/London/Boston: Klu- Visit by the Special Rapporteur to Chile, wer Law International, 2001, p.342. E/CN.4/1996/35/Add.2, 4 January 1996.). 154. UN Declaration 40/34, adopted by the UN However, it is generally accepted, that General Assembly on 29 November 1985. statutes of limitation only apply where effective remedies have been available (see 155. Anguelova v. Bulgaria, supra, para.139. for example Argentina Cases, Inter-Am. 156. Caracazo Case, supra, para.181. CHR 41, PP 10, 19 (1993)) and that statutes 157. Concluding observations of the Human of limitation do not apply to serious vio- Rights Committee on Germany’s State lations of human rights and international Party report, UN Doc. CCPR/CO/80/DEU, humanitarian law that constitute crimes 15 April 2004, para.16 and by the Com- under international law (see Principle 6 mittee against Torture, UN Doc. CAT/C/ of the UN Basic Principles on the Right to CR/32/7, 18 May 2004, para.4 (c); Israel’s a Remedy and Reparation for Gross Viola- State Party report, UN Doc. CCPR/CO/78/ tions of Human Rights and Serious Viola- ISR, 21 August 2003, para.18, on Portugal’s tions of Humanitarian Law) State Party Report, UN Doc. CCPR/CO/78/ 149. See, for example, Article 5 of the Con- PRT, 5 July 2003, para.8 (b), on Estonia’s vention against Torture; Article 4 of the State Party Report, UN Doc. CCPR/CO/77/ Genocide Convention; Article 27 of the EST, 15 April 2003, para.18 and on Togo’s Rome Statute for an International Criminal State Party Report, UN Doc. CCPR/CO/76/ Court; Robben Island guidelines, 16(b). TGO, 26 November 2002, para.12. 150. Joinet, principle 32. See also, REDRESS’ 158. For more information on legal sanctions, Amicus Brief on the Legality of Amnes- immunities and amnesties as exceptions ties under International Law, http://www. to the prosecution of alleged perpetrators redress.org/casework/AmicusCuriaeBrief- see, Audit Project: A Survey of the Law SCSL1.pdf. The UN Human Rights Commit- and Practice of Reparation for Torture in tee has stated that amnesties granted in 30 Countries Worldwide, REDRESS, April respect of acts of torture are generally in- 2003. Specifically on the legality of amnes- compatible with the duty of States to inves- ties under international law, see REDRESS’ tigate acts of torture, to guarantee freedom Amicus Brief on the Legality of Amnesties from such acts and to ensure that they do under International Law, http://www.re- not occur in the future (General Comment dress.org/casework/AmicusCuriaeBrief- 20, 10/3/92, UN Doc. HRI/GEN/1/Rev.1 at 30 SCSL1.pdf. at para. 15.) See also the Set of Principles 159. For more information on these different for the protection and promotion of human types of evidence, see page 47, The Torture rights through action to combat impunity Reporting Handbook by Camille Giffard, produced by the Sub-Commission on the Human Rights Centre, Essex University, Promotion and Protection of Human Rights UK, 2000. (E/CN.4/Sub.2/1997/20/Rev.1, annex II); 160. Aksoy v. Turkey, European Court of Human and Independent Study on Best Practices, Rights, Judgement of 18 December 1996. Including Recommendations, to assist States in strengthening their Domestic Ca- 161. See: Permanent Court of Arbitration, Chor- pacity to Combat all Aspects of Impunity, zow Factory Case (Ger. V. Pol.), (1928) by Professor Diane Orentlicher, UN Doc. E/ P.C.I.J., Sr. A, No.17, at 47 (September 13); CN.4/2004/88, 27 February 2004. International Court of Justice: Military and Paramilitary Activities in and against 151. Report to the Commission on Human Rights Nicaragua (Nicaragua v. U.S.), Merits 1986 (E/CN.4/2001/66,) recommendation (j). ICJ Report, 14, 114 (June 27); Corfu Chan- 152. World Conference on Human Rights – The nel Case; (UK v. Albania); Reparations for Vienna Declaration and Programme of Ac- Injuries Suffered in the Service of the United tion, June 1993, Section II, para 60. Nations, Advisory Opinion, I.C.J. Reports 153. The practice of the Committee Against Tor- 1949, p. 184 ; Interpretation des traites de ture indicates that a significant custodial paix conclus avec la Bulgarie, la Hongrie et Notes 67

la Romanie, deuxieme phase, avis consul- January 2000. tatif, C.I.J., Recueil, 1950, p. 228. See also 170. Question of the impunity of perpetrators of Article 1 of the draft Articles on State Re- human rights violations (civil and politi- sponsibility adopted by the International cal); E/CN.4/Sub.2/1997/20/Rev.1, 2 Octo- Law Commission in 2001: Every interna- ber 1997, para. 17. tionally wrongful act of a State entails the international responsibility of that State. 171. For an overview of universal and national (UN Doc. A/CN.4/L.602/Rev.1, 26 July 2001 human rights instruments recognising the (“ILC draft Articles on State Responsibil- right to an effective remedy see REDRESS, ity”)). Sourcebook on Reparation, 2003. 162. Permanent Court of Arbitration, Chorzow 172. See, for example, General Comment 29 on Factory Case (Ger. V. Pol.), (1928) P.C.I.J., States of Emergency (Art. 4) if the UN Hu- Sr. A, No.17. man Rights Committee, CCPR/C/21/Rev.1/ Add.11, 31 August 2001, at para. 14: “Article 163. Albert Wilson v. the Philippines, Commu- 2, paragraph 3, of the Covenant requires a nication No. 868/1999, U.N. Doc. CCPR/ State party to the Covenant to provide rem- C/79/D/868/1999 (2003). The Human edies for any violation of the provisions of Rights Committee has referred in several the Covenant. This clause is not mentioned decisions to the duty to afford “appropri- in the list of non-derogable provisions in ate” compensation. See Bozize v. Central article 4, paragraph 2, but it constitutes a African Republic (No. 449/1990); Mojica v. treaty obligation inherent in the Covenant Dominican Republic (No. 449/1991). In Grif- as a whole. Even if a State party, during a fin v. Spain (No. 493/1992) the Committee state of emergency, and to the extent that ordered “appropriate compensation for the such measures are strictly required by the period of his detention in the prison in Me- exigencies of the situation, may introduce lilla”. See also Bossuyt, Marc J. “Guide to adjustments to the practical functioning of the ‘travaux preparatoires’ of the interna- its procedures governing judicial or other tional covenant on civil and political rights” remedies, the State party must comply with (2002 ed. Kluwer Academic Publishers). the fundamental obligation, under article 164. Adopted by General Assembly Resolution 2, paragraph 3, of the Covenant to provide A/Res/60/147, 16 December 2005. a remedy that is effective.” The Commit- 165. See also, Principles 8 - 10 of the Declara- tee considered further that “It is inherent tion of Basic Principles of Justice for Vic- in the protection of rights explicitly recog- tims of Crime and Abuse of Power, Adopted nized as non-derogable […] that they must by General Assembly resolution 40/34 of 29 be secured by procedural guarantees[…] November 1985. The provisions of the Covenant relating to procedural safeguards may never be made 166. Commentary to the Draft Articles on State subject to measures that would circum- Responsibility for Internationally Wrong- vent the protection of non-derogable rights ful Acts; Report of the International Law […].” Similarly the Inter-American Court of Commission on its Fifty-three Session, GA, Human Rights explained that the judicial Supplement No. 10 (A/56/10); cph. IV.E.”). remedies to protect non-derogable rights 167. Velásquez Rodríguez Case, Interpretation are themselves non-derogable. (Advisory Of The Compensatory Damages Judgment, Opinion OC-9/87 of 6 October 1987. Judicial Judgment of August 17, 1990, Para. 27. Guarantees in States of Emergency (Arts. 168. See for example the UN Convention on 27(2), 25 and 25(8) American Convention the Rights of the Child and its Optional on Human Rights. Series A No. 9.) Protocol; UN Convention against Torture; 173. Some instruments explicitly call for the Declaration on Enforced Disappearances; development of judicial remedies for the Declaration on the Elimination of Violence rights they guarantee; the African Charter against Women. of Human and Peoples’ Rights for example, 169. Principle 24, Final report of the Special provides that all remedies should be judi- Rapporteur, Mr. M. Cherif Bassiouni, sub- cial. See Art. 7 of the African [Banjul] Char- mitted in accordance with Commission ter on Human and Peoples’ Rights, adopted resolution 1999/33, E/CN.4/2000/62, 18 June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 68 A practical guide to the Istanbul Protocol – for lawyers

5, 21 I.L.M. 58 (1982), entered into force Oct. Cruel Inhuman or Degrading Treatment. 21, 1986. 180. See Albert Wilson v. Philippines, Commu- 174. See Jeremy McBride, “Access to Justice and nication No. 868/1999, U.N. Doc. CCPR/ Human Rights Treaties” (1998) 17 Civil Jus- C/79/D/868/1999 (2003). tice Q.235. 181. See above note 28 on judicial review of 175. See Aksoy v. Turkey, 18 December 1996, Eu- detention, including administrative deten- ropean Court of Human Rights. tions 176. Article 13 requires “the provision of a do- 182. See The CPT Standards: Substantive sec- mestic remedy allowing the competent tions of the CPT’s General Reports, CPT/ national authority both to deal with the Inf/E (2002) - Rev. 2003. substance of the relevant Convention com- 183. See in particular K. De Feyter, S. Parmen- plaint and to grant appropriate relief” al- tier, M. Bossuyt and P. Lemmens (editors), though State have some discretion as to Out of the Ashes, Reparation for Victims of how to comply (para 69) D v. United King- Gross and Systematic Human Rights Viola- dom App. No. 30240/96 Judgment of 2 May tions, Intersentia, Antwerpen-Oxford, 2005 1997 (referring to Soering v. United Kingdom and Pablo de Greiff (editor), The Hand- App. No. 14038/88 Judgment of 7 July 1989 book of Reparations, International Center and Vilvarajah v. United Kingdom App. No. for Transitional Justice, Oxford University 13163/87 Judgment of 30 October 1991). Press, 2006. The HRC commented on Finland’s report (CCPR/C/95/Add.6) re the obligation un- 184. See Principles relating to the status of na- der Art 2(b) of the ICCPR that “while not- tional institutions (“Paris Principles”) UN ing that a recent reform of the Penal Code Doc. E/CN.4/1992/43, 16 December 1991. makes punishable the violation of several 185. See for an overview of Ombudsman insti- rights and freedoms, including those pro- tutions worldwide, www.law.ualberta.ca/ tected by articles 21 and 22 of the Covenant, centres/ioi/eng/worldwide.html. Compare the Committee is concerned that criminal the broad mandate of the Ombudsman in law may not alone be appropriate to deter- Australia (UN Doc. CAT/C/25/Add.11, 15 May mine appropriate remedies for violations 2000, paras. 96 et seq.) and Bolivia (UN of certain rights and freedoms (Concluding Doc. CAT/C/52/Add.1, 21 September 2000, Observations of the Human Rights Commit- paras.71 et seq.) with the more traditional, tee, Finland: 08/04/98). narrow mandate of their counterparts in 177. The nature (judicial, administrative or oth- Fiji (UN Doc. HRI/CORE/1/Add.122, 25 No- er) of the remedy should be in accordance vember 2002, paras.186 et seq.) and the with the nature of the right violated and Philippines (www.ombudsman.gov.ph) as the effectiveness of the remedy. In the case well as the specific mandates concerning of grave human rights violations, which criminal investigations and prison services implicitly constitute a crime, like torture, of the Ombudsman in Georgia (UN Doc. there is unanimity in the jurisprudence of CAT/C/Add.1, 2 June 2000, para.107) and international human rights tribunals and the Czech Republic (UN Doc. CAT/C/60/ bodies on the judicial nature of effective Add.1, 4 October 2002, paras.87 et seq.). remedies. See REDRESS Sourcebook on the 186. See Gonzalo Elizondo and Irene Aguilar, Right to Reparation, supra. Ombudsman Institution in Latin America: 178. Nydia Bautista v. Colombia (No. 563/1993); Minimum Standards for its existence, in José Vicente and Amado Villafane Chap- Lindsnaes, Lindholt and Yigen, National arro, Luis Napoleon Torres Crespo, Angel Human Rights Institutions, supra, pp.209- María Torres Arroyo and Antonio Hugues 220, noting on p.209 that “The institution Chaparro Torres v Colombia (No. 612/1995). of the ombudsman in Latin America has been given diverse technical names, such 179. See e.g. Article 27.2 of the American Con- as Defensor dels Pueblo in Ecuador, Bo- vention on Human Rights; Article 6 of the livia, Peru, and Colombia, among others; European Convention on Human Rights; Defensor de los Habitantes in Costa Rica; Art 7 of the African Charter on Human Comisionado Nacional de Derechos Huma- Rights and People’s Rights, Article 13 of nos in Honduras and Mexico; or Sindic de the Convention against Torture and other Notes 69

Greuges in some localities in Spain” and Add.2 Rachel Neild, Confronting a Culture of Im- 198. This principle does not apply for system- punity, supra, p.223. atic or gross violations of human rights. 187. For further information, see Victims and For more information see Reparation – A Access to Justice, A Primer, available at Sourcebook For Victims Of Torture And Oth- http://www.irct.org/Default.aspx?ID=2678 er Violations Of Human Rights And Interna- 188. In practice, to successfully pursue civil or tional Humanitarian Law, REDRESS, March administrative proceedings, torture vic- 2003, available at http://www.redress.org/ tims require a ruling by a judge in crimi- publications/SourceBook.pdf (REDRESS’ nal proceedings as evidence that they have Sourcebook on Reparation). suffered torture. 199. Ibid. 189. http://www.unhchr.ch/html/menu2/7/b/ 200. Assenov & Others v. Bulgaria, supra. torture/torquest.htm. 201. Veznedaroglu v. Turkey (2001) 33 E.H.R.R. 190. See A/RES/57/199. 59 ECHR, paras. 32 et seq. 191. Under Article 20 of the United Nations 202. See Boyle and Rice v. United Kingdom (1988) Convention against Torture there is also 10 E.H.R.R 425 ECHR: “The Court does not an inquiry procedure that allows the Com- think that it should give an abstract defi- mittee against Torture to look into allega- nition of the notion of arguability. Rather tions of “systematic practice” of torture it must be determined, in the light of the in a State Party to the Convention, with a particular facts and the nature of the legal possibility of visiting the country, unless issue or issues raised[...]” See also, McCal- that State Party has formally declared that lum v. United Kingdom (1991) 13 E.H.R.R. it does not recognise the Committee’s com- 597. petence to do so. However this procedure is 203. Veznedaroglu v. Turkey, supra, paras.34 et not preventative but “reactive”, since the seq. Assenov & Others v. Bulgaria, supra, Committee can only visit the county after para 101. See also Toteva v. Bulgaria, Ap- allegations of systematic torture have been plication no. 42027/98, Judgment of 19 May made. 2004, para.61. 192. See http://www.ohchr.org/english/bodies/ 204. Toteva v. Bulgaria, supra, para. 62; Tan- cat/opcat/index.htm. rikulu v. Turkey (2000) 30 E.H.R.R. 950 193. For more information on the mandate of the ECHR. See also the negative conclusion as Special Rapporteur on Prisons and Condi- to arguability in Kurt v. Turkey (1999) 27 tions of Detention in Africa and the Special E.H.R.R. 373 ECHR: “It is to be observed in Rapporteur on Extra-Judicial Executions in this regard that the applicant’s case rests Africa, see Section 5.3 in Reporting Killings entirely on presumptions deduced from the as Human Rights Violations Handbook by circumstances of her son’s initial detention Kate Thompson and Camille Giffard, Hu- bolstered by more general analyses of an man Rights Centre, Essex University, UK. alleged officially tolerated practice of dis- 194. The Torture Reporting Handbook by Ca- appearances and associated ill-treatment mille Giffard, Human Rights Centre, Essex and extra-judicial killing of detainees in University, UK, 2000. the respondent State. The Court for its part considers that these arguments are not in 195. See Arts 75 and 79 of the Rome Statute of themselves sufficient to compensate for the International Criminal Court, 2187 the absence of more persuasive indications U.N.T.S. 90 that her son did in fact meet his death in 196. See REDRESS, Bringing the International custody.” (para 108) (the Court found vio- Prohibition of Torture Home: National Im- lations of Article 13 and Article 3 as regards plementation Guide for the UN Convention the complainant’s suffering for lack of in- Against Torture and Other Cruel, Inhuman formation as to her son’s whereabouts and or Degrading Treatment or Punishment, the state’s disregard of her complaint but January 2006, pp.94 et seq. held there was insufficient information to 197. See 4th Periodic Report to the Commit- conclude that a violation of Article 3 had tee Against Torture, 27/05/2005 CAT/C/61/ occurred as regards her son). 70 A practical guide to the Istanbul Protocol – for lawyers

205. For an overview of the different individual 206. See, for example, Cantoral Benavides Case complaints procedures at the internation- v. Peru, Series C No 88, 3 December 2001. al level, see pages 28-39, Reparations: A 207. See generally, REDRESS, Enforcement of Sourcebook for Victims of Torture and other Awards for Victims of Torture and Other In- Violations of Human Rights and Interna- ternational Crimes, May 2006. tional Humanitarian Law, REDRESS, March 2003. 208. Singarasa v. Attormey General, S.C. Spl(LA) No. 182/99, 15 September 2006.

REFERENCES

International Rehabilitation Council for Torture International Rehabilitation Council for Torture Victims (IRCT) (2009a). Medical physical ex- Victims (IRCT) (2009b). Psychological evalua- amination of alleged torture victims: A practi- tion of torture allegations: A practical guide to cal guide to the Istanbul Protocol – for medical the Istanbul Protocol – for psychologists. Sec- doctors. Copenhagen: IRCT. ond edition. Copenhagen: IRCT.

International Rehabilitation Council for Torture Victims (IRCT)

The International Rehabilitation Council for Torture Victims (IRCT) is an independent international health professional organisation which promotes and sup- ports the rehabilitation of torture survivors and works for the prevention of torture worldwide. The IRCT collaborates with rehabilitation centres and programmes throughout the world that are committed to eradicating torture and to assisting torture survivors and their families.

The IRCT works toward the vision of a world without torture. Specifically, we:

• raise awareness of the need for torture rehabilitation and encourage support for survivors; • promote the establishment of treatment facilities around the world; • work for the prevention of torture; • fight impunity for torturers and work to ensure the rights of torture victims; • document the problem of torture and collect results of research related to torture; and • work to increase funding for rehabilitation centres, programmes and projects worldwide.

Recognised internationally for its work, the IRCT enjoys special consultative status with the Economic and Social Council of the United Nations and the UN Department of Public Information, and observer status with the Council of Eu- rope and African Commission on Human and Peoples’ Rights.

The IRCT network today embraces 142 member rehabilitation centres and programmes in 73 countries and territories around the globe, providing support and hope for torture survivors, and acting as a symbol of triumph over the terror of torture.

ISBN 978-87-88882-30-8 (paperback) ISBN 978-87-88882-33-9 (PDF)