https://defensewiki.ibj.org/api.php?action=feedcontributions&user=Spalomba&feedformat=atomCriminal Defense Wiki - User contributions [en]2024-03-29T10:44:37ZUser contributionsMediaWiki 1.34.1https://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9944Representing Victims of Torture2011-03-28T13:38:13Z<p>Spalomba: /* Available Remedies */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref><br />
<br />
To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
<br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
<br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
<br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
<br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.).<br />
<br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
<br />
''Client Interview Checklist'':<br />
<br />
- Exact time and date of arrest<br />
<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
<br />
- Words exchanged, and rights invoked at arrest<br />
<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
<br />
- Language used by law enforcement officials, how the client understood the language used<br />
<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
<br />
- Time and location of torture<br />
<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
<br />
- Details of all marks personally observed by the lawyer<br />
<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9943Representing Victims of Torture2011-03-28T13:37:21Z<p>Spalomba: /* Interviewing Torture Victims and Gathering Evidence Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref><br />
<br />
To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
<br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
<br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
<br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
<br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.).<br />
<br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
<br />
''Client Interview Checklist'':<br />
<br />
- Exact time and date of arrest<br />
<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
<br />
- Words exchanged, and rights invoked at arrest<br />
<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
<br />
- Language used by law enforcement officials, how the client understood the language used<br />
<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
<br />
- Time and location of torture<br />
<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
<br />
- Details of all marks personally observed by the lawyer<br />
<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9942Representing Victims of Torture2011-03-28T13:36:19Z<p>Spalomba: /* Interviewing Torture Victims and Gathering Evidence Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref><br />
<br />
To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
<br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
<br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
<br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
<br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.).<br />
<br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
<br />
''Client Interview Checklist'':<br />
<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9941Representing Victims of Torture2011-03-28T13:35:52Z<p>Spalomba: /* Interviewing Torture Victims and Gathering Evidence Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref><br />
<br />
To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
<br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
<br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
<br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
<br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.).<br />
<br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9940Representing Victims of Torture2011-03-28T13:35:09Z<p>Spalomba: /* Psychological Evidence of Torture Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref><br />
<br />
To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
<br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
<br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9939Representing Victims of Torture2011-03-28T13:34:29Z<p>Spalomba: /* Physical Evidence of Torture */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible.<br />
<br />
Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. <br />
A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9938Representing Victims of Torture2011-03-28T13:33:19Z<p>Spalomba: /* Physical Evidence of Torture */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
<br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
<br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref><br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9937Representing Victims of Torture2011-03-28T13:32:35Z<p>Spalomba: /* Civil Law Remedies */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Countries===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9936Representing Victims of Torture2011-03-28T13:31:22Z<p>Spalomba: /* Common Law Countries */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [[Exclusionary Rule]] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9935Representing Victims of Torture2011-03-28T13:30:26Z<p>Spalomba: /* Common Law Remedies */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Countries===<br />
<br />
The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.<ref> Brown v. Mississippi, 297 U.S. 278 (1936)</ref><br />
<br />
The exclusionary rule should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations. <ref> See [Exclusionary Rule] </ref><br />
There are several opportunities to raise this defense in a common law system:<br />
<br />
- '''Arraignment / Bail''' – This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant’s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
- '''Pre-trial motions''' – The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judge determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
- '''Trial''' – In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics.<br />
- '''At Appeal''' – If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9934Representing Victims of Torture2011-03-28T13:24:41Z<p>Spalomba: /* A Lawyer’s Responsibilities When Representing Victims of Torture */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
==A Lawyer’s Responsibilities When Representing Victims of Torture==<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9933Representing Victims of Torture2011-03-28T13:24:19Z<p>Spalomba: /* Interviewing Torture Victims and Gathering Evidence Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners)<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9932Representing Victims of Torture2011-03-28T13:23:31Z<p>Spalomba: /* Investigating and Documenting Torture: The Istanbul Protocol */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners) <br />
<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9931Representing Victims of Torture2011-03-28T13:22:55Z<p>Spalomba: /* Identifying Victims of Torture */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
<br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners) <br />
<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9930Representing Victims of Torture2011-03-28T13:21:13Z<p>Spalomba: </p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
<br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute. </ref><br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
==Investigating and Documenting Torture: The Istanbul Protocol==<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
<br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
<br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref> <br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
<br />
===Physical Evidence of Torture===<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners) <br />
<br />
<br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
<br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9929Representing Victims of Torture2011-03-28T13:16:37Z<p>Spalomba: /* Identifying Victims of Torture */</p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
<br />
<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute. </ref><br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
===Investigating and Documenting Torture: The Istanbul Protocol===<br />
<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref><br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
<br />
===Physical Evidence of Torture===<br />
<br />
<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners) <br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=9928Representing Victims of Torture2011-03-28T13:15:34Z<p>Spalomba: </p>
<hr />
<div>People are tortured or otherwise ill-treated in at least 111 countries around the world. In 61 of those countries human rights abusers can torture with impunity.<ref>http://thereport.amnesty.org/facts-and-figures</ref>. While an individual may be tortured for many reasons -- to force a confession, for punishment, to intimidate or coerce, or for any reason based on discrimination of any kind -- the majority of torture cases occur during police interrogation. This guide provides the criminal defense with an overview of how to identify and represent individuals who have been [[Torture|tortured]] either for [[Confessions | confessions]] or for extra-judicial punishment.<br />
<br />
==Identifying Victims of Torture==<br />
<br />
<br />
There may be many different goals related to identifying victims of torture: holding the perpetrator accountable, making reparation, preventing the deportation of an individual to a country where he or she would be at risk of torture, etc.<br />
For criminal defense attorneys it is important to identify victims of torture because specific groups (i.e. children, women, the elderly, or religious persons) may be more vulnerable to the effects of ill-treatment, making it easier to consider the degree of suffering severe enough to amount to torture. <ref> The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm </ref><br />
Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.<br />
For example, regarding children, Article 24 of the International Covenant on Civil and Political Rights states that “''every child shall have, without any discrimination as to race, color, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.” Similarly, the UN Convention on the Rights of the Child (UNCRC) states that “no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offenses committed by persons below eighteen years of age''.”<ref> The UN Convention on the Rights of the Child, Article 37 </ref><br />
<br />
Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.<br />
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to use additional international mechanisms, such as the International Criminal Court (ICC). Article 2 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, includes "''acting with intent to destroy, in whole or in part, a national, ethnic, racial or religious group [by] causing serious bodily or mental harm to members of the group''" as part of its definition of genocide. <ref> Article 3 Rome Statute </ref><br />
The Rome Statute of the ICC incorporates this definition of genocide as well as a definition of crimes against humanity, which includes torture. As soon as a State becomes a party to the Statute, it accepts the ICC's jurisdiction with respect to those crimes, and a State can recommend individual nationals suspected of those crimes to the Court. The ICC will then have complete jurisdiction to investigate and prosecute unless the person recommended has already been tried or is in the process of going to trial in the State already.<br />
<br />
===Investigating and Documenting Torture: The Istanbul Protocol===<br />
<br />
In 1999, the United Nations developed the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol. It is the first set of international standards “''for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture and for reporting findings to the judiciary or any other investigative body.''”<ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at <br />
http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref><br />
The Istanbul Protocol provides advice for interviewing detainees and possible victims of torture that is applicable to lawyers, doctors, psychologists or other professionals. Therefore, while it may differ from local standards set by a defender’s office, it provides an excellent resource for a lawyer who wants guidance as to minimum standards for documenting a case where a client has been tortured. <br />
According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.<ref> Article 12 </ref><br />
Similarly, the Istanbul Protocol asserts that the State should appoint a primary investigative authority (separately from providing access to legal services) to serve as the main liaison between the authorities and the alleged torture victim. This investigative authority must be separate from alleged torturers or any agency that employs them. <ref> Istanbul Protocol, ¶ 79</ref><br />
In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as a thorough medical examination from an independent, qualified expert to produce a comprehensive evaluation of the alleged torture victim.The State should also provide the following information to the alleged torture victim during the investigation:<br />
<br />
1. updates on the progress of the investigation;<br />
2. information on all key hearings in the investigation and prosecution of the case;<br />
3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);<br />
4. contact information for advocacy and treatment groups that might assist the victim;<br />
5. the right to refuse questioning, to stop the investigation, or to take a break;<br />
6. protection, not only for the victim, but also for the victim's family;<br />
7. psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> ttp://www.kspope.com/torvic/torture1.php </ref><br />
<br />
<br />
===Physical Evidence of Torture===<br />
<br />
<br />
As the Istanbul Protocol notes, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially difficult or impossible. Yet investigators must be given authority by the State to obtain unrestricted access to where the torture allegedly took place. Once a place is identified as a possible torture location, it should be secured and only the investigator should have access. All evidence must be properly collected and labeled. Any object that could have been used as an instrument of torture should be collected as well. The investigator should take color photographs and draw a sketch of the scene. If the torture happened recently, the investigator should collect the victim's clothes to test for bodily fluids. X-rays and MRIs are the best ways to determine the extent of soft tissue, mandibular and dental trauma. It is especially important to try to capture evidence of soft tissue injuries as they tend to be difficult to prove.<br />
The investigator should also order a physical examination of the alleged torture victim as soon as possible. An alleged torture victim, his family member or his lawyer may also request a medical examination to document physical evidence of torture. Military or police personnel should not be the authorities requesting a medical exam, nor should they be present during the examination or responsible for transporting the alleged victim, since they may have been involved in the torture. A record should be made if such officials are present during the examination, and this may present possible grounds for challenging the validity of the exam results at a later date if they are unfavorable to one’s client. <ref> Istanbul Protocol ¶ 123, 124, 125 </ref><br />
The medical examiner should ideally have experience examining torture victims, and be familiar with torture practices in that region/country. The medical examiner needs to document the previous medical history before conducting an extremely thorough examination of the alleged victim's entire body, including eyes, ears, nose, oral cavity and teeth, jaw, oropharynx and neck, chest and abdomen, the central and peripheral nervous system, the genito-urinary system and the musculoskeletal system. The medical examiner should take photographs, if possible, and should note if the examination was not conducted under bright light.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V </ref> Istanbul Protocol, ¶ 131 </ref><br />
It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur; many violent acts, such as psychological or sexual torture, frequently leave no marks or permanent scars.</ref> <br />
<br />
===Psychological Evidence of Torture <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI. </ref>===<br />
<br />
Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref> <br />
http://www.kspope.com/torvic/torture1.php </ref> Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.<ref> International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573 </ref> To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.<br />
Victims of torture may also suffer from depression. Symptoms of depression include depressed mood, anhedonia (markedly diminished interest or pleasure in activities), appetite disturbance or weight loss, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue and loss of energy, feelings of worthlessness and excessive guilt, difficulty paying attention, concentrating or recalling from memory, thoughts of death and dying, suicidal ideation or attempted suicide.<br />
In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259. </ref><br />
Torture victims often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment.<ref> Kenneth S. Pope & Rosa E. Garcia-Peltoniemi, Responding to Victims of Torture: Clinical Issues, Professional Responsibilities, and Useful Resources, 22 Professional Psychology: Research and Practice 269 (Year), <br />
available at http://www.kspope.com/torvic/torture1.php </ref><br />
Assessing a child who is a potential victim of torture is potentially an even more complex process. Depending on their age, children who have been tortured may have different reactions than adults. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, a child who has witnessed or experienced torture should be examined by an expert in child abuse. Caregivers should be sure to carefully monitor the development of the child, even if he or she not experience torture personally, but indirectly witnessed torture of a loved one.<ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315. </ref><br />
<br />
===Interviewing Torture Victims and Gathering Evidence<ref> Although geared more towards a neutral state-sponsored investigation than a lawyer’s representation of his client, Chapter V of the Istanbul Protocol provides many example lines of questioning designed to help elicit the full account of any torture that occurred. </ref>===<br />
<br />
The lawyer has a right to interview his client in private without any police officer or prison officer present. Interviews conducted while a client is in custody, and potentially still vulnerable to his/her torturers, will be different than one conducted in a private place.<ref> Istanbul Protocol, ¶ 129 </ref><br />
The police cannot legally insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client.<br />
The lawyer should be straightforward with the client about what he/she can realistically achieve for the client, and explain the process thoroughly. The lawyer should be aware that the victim may not be comfortable right away, and the lawyer may need to conduct several interviews. The lawyer should always be sensitive to the victim's trauma, using eye contact and sympathetic body language. <br />
During this interview the lawyer must find out all relevant information including:<br />
- The client's response to the allegations leveled against him.<br />
- The names of the officers who arrested him and the investigating officer.<br />
- What the arresting officers said to him at the time of the arrest.<br />
- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.<br />
- Whether he has made any sort of statement, and, if he has, all details regarding that statement, i.e., was the statement oral or handwritten; was it a warned and cautioned statement which was typed and read over to him before he signed it; was the statement confirmed before a magistrate? (Where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to see the statement and that he be provided with a copy.)<br />
- If a statement has been made and whether it was made freely and voluntarily. (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)<br />
- If a medical practitioner has already given medical treatment to the client. (If so, lawyer should ask the police for a copy of the medical report.) <br />
Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.<br />
''Client Interview Checklist'':<br />
- Exact time and date of arrest<br />
- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each<br />
- Words exchanged, and rights invoked at arrest<br />
- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody<br />
- Language used by law enforcement officials, how the client understood the language used<br />
- Visits, conditions and treatment after the arrest and during custody: medical visits, lawyer visits, family visits, presence of an interpreter, interrogations, rest and food provided<br />
- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer<br />
- Time and location of torture<br />
- Details regarding anyone present during the torture (whether or not they participated)<br />
- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)<br />
- Details of all pressures or threats constituting mental or psychological torture<br />
- Details of all marks personally observed by the lawyer<br />
- Information about all possible witnesses (bystanders, co-prisoners) <br />
===Victim Responses During Interviews===<br />
<br />
====Silent Clients====<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction often developed to deal with trauma), do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. First, a good starting point as an interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details—for example, color and brand of the police car, weather conditions, and what people nearby were wearing. These details may initially seem insignificant, but giving small details often makes it easier to speak of violence. Second, never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened. Third, pay attention to the details; the victim's understanding of the gravity of certain acts may be different from what is legally proscribed. Finally, once the client has begun, do not interrupt him or her. Wait until the narrative is over to ask further questions. With the victim’s help, come up with an inventory of the visible marks that resulted. Ask if there were any witnesses to the arrest (particularly family or colleagues) and for descriptions and names of the perpetrators (first names are often given during physical interrogations).<br />
====Talkative Clients====<br />
Conversely, when victims are talkative, it is important to first allow for an initial ”purging” phase during the interview, when the client is able to “get it all out.” Take advantage of this time to identify elements that can be used to direct later conversation. There can occasionally, but not always, be a tendency to exaggerate. Next, explain how certain details may aid or inform the creation of a defense (e.g., nullity, absolute defense or legal action against the perpetrators). Third, have the client make precise lists of people present, of blows given, of clothing worn, etc., to regulate the flow of the interview. Additionally, have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties and legislation that exist. If the flow is interrupted, change the subject for a bit. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations. Only look at the wounds at the end. Finally, make an inventory of places, names and witnesses as discussed above.<br />
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. With both talkative and silent victims, the lawyer should obtain the information covered in the “Interview Checklist” provided above by the end of the interview. Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite. Then the defense should be prepared.<br />
<br />
<br />
===A Lawyer’s Responsibilities When Representing Victims of Torture===<br />
====Ethical Obligations====<br />
Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle 14 of the United Nations Basic Principles on the Role of Lawyers provides: “''Lawyers, in protecting the rights of their clients and in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.''”<ref> Available at http://www2.ohchr.org/english/law/lawyers.htm </ref><br />
Thus, lawyers should refer to the ethics code governing their local bar to resolve any ethical questions. Whatever the country-specific regulations may be, there are general standards that all lawyers should meet when dealing with their clients.<br />
====Communication====<br />
As in other circumstances, lawyers have a duty of communication to the client. Being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to support that defense strategy throughout the representation. Defense strategies are the methods by which a criminal defense attorney decides to try his/her client’s case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. <br />
====Presenting Defenses====<br />
It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer’s professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.<br />
In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend his or her client in many ways. Given the State's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.<br />
====Requesting medical and psychological treatment for the client====<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
An accurate medical examination helps the victim as well as his defense lawyer. A very precise medical dossier, that documents the violence accurately, brings the Court closer to the victim and makes the victim more reliable.<br />
<br />
==Available Remedies==<br />
A survivor of torture might be a victim twice: victim of physical and psychological violence, and victim of an unfair criminal proceeding. The information acquired through torture, indeed, might be used against the victim, as well as against a third person. The information is usually a confession regarding a criminal offense and there is no shortage of authority for the assertion that such evidence is inadmissible. <br />
<br />
The reason for this rule at the international level is given primarily by Article 15 of the CAT, which prescribes that “[e]ach State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.”<ref> On this issue: Tobias Thienel, The Admissibility of Evidence Obtained by Torture under International Law, The European Journal of International Law Vol. 17 no.2 , 2006, at 356.</ref> This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.<br />
<br />
These norms aim to remove incentives to torture and to ensure fair (criminal, civil, administrative, judicial and non-judicial) proceedings. Thus, any kind of evidence obtained by torture must be declared inadmissible. Moreover, as the CAT travaux préparatoires make clear, the risk that the information obtained under torture may not be true is very high.<br />
<br />
National criminal justice systems have adopted different remedies, with even further differentiations among common law and civil law countries themselves. China, for example, in July 2010, introduced a very detailed new set of rules specifically regarding the exclusion of oral evidence obtained by illegal means.<ref> http://french.cri.cn/781/2010/06/02/57s220326.htm</ref><br />
<br />
The aim of the CAT provision is protecting both the dignity and the physical and mental integrity of the individual. At the same time, its scope is dissuading law enforcement officials, and, in general, people acting under color of law from committing torture to gain information because the information cannot be used to prove the defendant’s responsibility.<br />
<br />
===Common Law Remedies===<br />
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:<br />
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant"s confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref> There are several opportunities to raise this defense in a common law system:<br />
** '''Arraignment / Bail''' " This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant"s confession was induced by torture or that the confession evidence should have no bearing on the bail motion.<br />
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.<br />
**'''Trial''' " In some jurisdictions a confession induced by torture is still admissible at trial, regardless of the attendant circumstances. In these cases, the defense must defend against the confession by putting forth evidence to show that the confession is unreliable. A criminal defense attorney who is representing a defendant whose confession was induced by torture should develop a central theme at trial that emphasizes physical or psychologically overwhelming interrogation tactics. <br />
** '''At Appeal''' " If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was reversible error and request a reversal of conviction based on the error.<br />
<br />
===Civil Law Remedies===<br />
In general, the following are the actions that can be initiated by the defense lawyer in civil law countries. It might be procedurally possible to pursue the three actions simultaneously. However, a careful analysis of the situation must be carried out to understand if it is in the client’s best interest to pursue one action instead of another, or more than one at the same time.<br />
<br />
'''[[Nullity of Procedure]]'''- Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interrogation or custody.<br />
<br />
'''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. This is a factual defense which implies a very solid reconstruction of the circumstances surrounding the accusation, in order to undermine the case for the prosecution.<br />
<br />
'''Disciplinary Action Against Perpetrators''' - Administrative or civil disciplinary actions can be taken against the perpetrators, usually under the auspices of the prosecution, by submitting a complaint.<br />
<br />
===Collateral Remedies===<br />
In both civil and common law countries, a defendant may have an independent civil action<ref> An action aimed to seek redress and/or compensation beyond criminal charges. For example, in the US, a tort action under the theory of battery or a civil law remedy for violation of constitutional rights under 42 USC 1983</ref> for damages against the State or the police. Both legal systems seek to deter and punish similar fact patterns. No matter the type of system, criminal and civil law should operate in conjunction, as complements to each other, to reach the most favorable result for the victim.<br />
<br />
For torture survivors, the process of seeking justice and reparation is an important part of recovery, because it allows them to regain their dignity and the control of their life. Accountability of the perpetrators and public acknowledgment of the wrong inflicted is also important as a public record that a wrong has been committed and might be useful as deterrent against future perpetrators, and so strengthening the rule of law.<ref> According to the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (2005), the recognized forms of reparation comprise restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition, at http://www2.ohchr.org/english/law/remedy.htm </ref><br />
<br />
====Civil Law Countries====<br />
''Action Civile'' is the action that the victim of torture can initiate against the perpetrator to seek redress and/or compensation. This action can be initiated in the criminal proceeding at the trial phase (in France, even without the assistance of a lawyer). Moreover, the action civile can also generate a separate civil proceeding, and in this case procedural codes envision coordination of rules between the two actions.<br />
<br />
The ''action civile'' combines penal and tort procedures. Article 2 of the French Procedural Criminal Code provides that “all who have personally suffered a damage directly caused by the crime have a right to reparation of that damage by a civil cause of action (...).”<ref> The original text reads: “''L'action civile en réparation du dommage causé par un crime, un délit ou une contravention appartient à tous ceux qui ont personnellement souffert du dommage directement causé par l'infraction. La renonciation à l'action civile ne peut arrêter ni suspendre l'exercice de l'action publique, sous réserve des cas visés à l'alinéa 3 de l'article 6.''” at: <http://lexinter.net/PROCPEN/titre_preliminaire.htm>. See Lucie Ménard, Nullité de la preuve obtenue par l’emploi de méthodes coercitives lors d’un interrogatoire en France et en Allemagne, at <br />
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref><br />
<br />
However, what is called “''constitution de partie civile''” bars the “''partie civile''” from being heard as a witness in that criminal trial, according to article 422 CCP. Given the fact that most of the time the victim’s statements are the only evidence of the torture itself, exercising the ''action civile'' might not be the best defense strategy. Moreover, the judicial decision declaring the torturer’s civil responsibility, and thus his duty to compensate the victim, might be difficult to enforce because the torturer does not have any financial resources or has been tried in absentia, for example.<br />
<br />
===Requesting medical and psychological treatment for client===<br />
The criminal defense lawyer representing a client who has been tortured has a responsibility that goes beyond merely raising defenses at trial. Under certain circumstances a criminal defense attorney may request a court-ordered medical examination. This may be required before the court will launch a formal investigation into an allegation of torture. It also may be required before the court can order appropriate medical or psychological treatment.<br />
<br />
===International Remedies===<br />
<br />
====Use of International Principles in Domestic Litigation====<br />
<br />
Translation from an international standard or norm to national law and then to local implementation is slow and very complex. But not only States are responsible for transforming judicial practices. Direct application of international law by domestic courts can also play an important role in implementing international human rights standards, complying with relevant international standards and citing precedents of other jurisdictions. The greater the extent to which international principles about torture are known, the greater the possibility that domestic courts will comply with them.<br />
<br />
The role of defense lawyers in this complicated process, especially concerning absolute prohibitions like torture, is fundamental. Defense lawyers must constantly try to invoke international human rights standards when litigating torture cases, either directly, where possible, or using the standards in interpreting domestic laws.<br />
<br />
Concerning torture, the international community agrees on considering the prohibition of torture as customary law, and specifically as a peremptory norm of general international law (i.e., jus cogens).<ref> Filartiga v. Pena Irala (US Ct. of Appeals, 1980); R v. Bartle (ex parte Pinochet) (House of Lords, 1999) (per Lord Millet). See also: Association for the Prevention of Torture, The criminalisation of torture under the UN Convention against torture and other cruel, inhumane or degrading treatment or punishment, An Overview for the Compilation of Torture Laws, August 2009, at 2, note 5 and 6.</ref> This means not only that states cannot stipulate upon or derogate from the norm, but also that the norm is elevated to a higher level than other international rules. Moreover, torture is considered an obligation erga omnes that is an obligation that each state has not only toward its citizens, but to the international community in general.<ref> Prosecutor v. Furundzija (ICTY, 1998)</ref><br />
<br />
In a national court context, these international law-related arguments are not obviously persuasive. However, defense lawyers can use this kind of reasoning to reinforce their claims that evidence obtained with force must be deemed inadmissible.<ref> In State v T Makwanyane and M. Mchunu- Case No. CCT/3/94, in considering the constitutionality of death penalty, the Constitutional Court of the Republic of South Africa proposed a very interesting reasoning. The Court said: “In the course of the arguments addressed to us, we were referred to books and articles on the death sentence, and to judgments dealing with challenges made to capital punishment in the courts of other countries and in international tribunals. The international and foreign authorities are of value because they analyse arguments for and against the death sentence and show how courts of other jurisdictions have dealt with this vexed issue. For that reason, alone they require our attention. They may also have to be considered because of their relevance to section 35(1) of the Constitution (...)”. The Court went on saying that however, as the international legal instrument basically failed in proscribing the death penalty while, instead the South African Constitution bars it, the principle to follow it is not to be found in international law, but in the more advanced national law (the decision is available at http://www.alrc.net/doc/mainfile.php/cl_safrica/218/).</ref> This is because such evidence intrinsically violates principles that are so fundamental and globally recognised that they do not need to be incorporated into domestic systems through national legislation to demand their application.<br />
<br />
The fact that national courts and lawyers play a primary role in upholding the fundamental principles of international law can also be derived from the complementarity principle contained in Article 1 of the International Criminal Court Statute (1998). This principle means that domestic jurisdictions first have to take the lead in the adjudication of international crimes, while the ICC can step in just if one state is “unable” or unwilling” to prosecute the crime.<br />
<br />
====Recourse to International Mechanisms====<br />
International mechanisms provide victims of torture with additional protection and, at the same time, function in a sense as supervisory bodies over the state action. Remedies are available at the regional level, where individuals may have the right to bring their case before a Commission/ombudsman (such as the African Human Rights Commission<ref> For Further information refer to http://www.achpr.org/.</ref>), or directly before an international judicial/quasi judicial mechanism, such as before the United Nations Human Rights Committee monitoring the implementation of the International Covenant on Civil and Political Rights<ref> On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.</ref> or the Committee against Torture monitoring the U.N. Convention Against Torture.<br />
<br />
Usually, cases can be brought only if the State party has accepted the individual complaints procedure. The human rights treaty bodies have the power to find a violation, to recommend measures to redress the violation, and carrying out of effective investigations, which States are bound to comply with. In particular, the Convention Against Torture provides that if the Committee Against Torture receives reliable information indicating that torture is being systematically practiced in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations about the information concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee.<ref> Convention Against Torture, Article 20</ref> After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. If a State makes a declaration recognizing the competence of the Committee “to receive and consider communications from or on behalf of individuals subject to its jurisdiction who claim to be victims of a violation by a State Party of the provisions of the Convention,” then a torture victim or his/her defense attorney could file a complaint directly with the Committee. The Convention also emphasizes, however, that an individual cannot make any complaints if his case is already pending in an international court or if they have not already exhausted domestic avenues.<ref> Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/</ref><br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
[[International Covenant on Civil and Political Rights]]<br />
<br />
[[Rome Statute of the International Criminal Court]]<br />
<br />
[[Standard Minimum Rules for Treatment of Prisoners]]<br />
<br />
[[File:istanbulprotocol.pdf]]<br />
<br />
[[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
[[Inter-American Convention to Prevent and Punish Torture]]<br />
<br />
== References ==<br />
<references/></div>Spalombahttps://defensewiki.ibj.org/index.php?title=File:Constitution_of_the_Lao_People%27s_Democratic_Republic.pdf&diff=9419File:Constitution of the Lao People's Democratic Republic.pdf2011-03-01T15:39:55Z<p>Spalomba: </p>
<hr />
<div></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Laos&diff=9418Laos2011-03-01T15:38:14Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ADDITIONAL RESOURCES</h2><br />
<br />
*[[Media:Constitution of the Lao People's Democratic Republic.pdf | Constitution of the Lao People's Democratic Republic]]<br />
*[[Media:Laos Penal Code.pdf | Laos Penal Code]]<br />
*[[Media:Laos Law of Criminal Procedure.pdf | Laos Law of Criminal Procedure]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Laos, formally known as Lao People's Democratic Republic, comprises 16 provinces and 1 capital city, Vientiane. After centuries of gradual decline, Laos came under the control of Thailand from the 18th to the late 19th century, when it became part of French Indochina. In 1975, the communist Pathet Lao took control of the government ending a six-century-old monarchy and instituting a strict socialist regime closely aligned to Vietnam. A gradual return to private enterprise and the liberalization of foreign investment laws began in 1988, but Laos is still a communist country. The predominant religions are Theravada Buddhism and Animism. There are also small numbers of Christians and Muslims.<br />
<br />
The official and dominant language is Lao, with minorities speaking an assortment of Mon-Khmer, Hmong-Yao, and Tibeto-Burman languages. French, once common in government and commerce, has declined in usage, while knowledge of English has increased in recent years.<br />
<br />
==Type of System==<br />
<br />
The judicial branch of Laos consists of the People’s Supreme Court, the appellate courts, the People’s Provincial Courts and city courts, the People’s District Courts, and the military courts.<br />
<br />
According to Article 83 of the Law on Criminal Procedure, the court that has jurisdiction to decide a criminal case, at first instance, is the court where the incident occurred or where the defendant lives. In general, the people’s district, municipal, provincial, or city court has jurisdiction to decide cases as a court of first instance. The people’s district or municipal court has jurisdiction to decide criminal cases relating to minor offences.<br />
<br />
The legal system is based on traditional customs, French legal norms and procedures, and socialist practices.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution was promulgated on 14 August 1991 (last amended in 2003) and its Chapter IV is titled “Fundamental Rights and Obligations of Citizens”. Article 6 asserts that “''the State protects the freedom and democratic rights of the people which cannot be violated by anyone''”, and “a''ll acts of bureaucratism and harassment that can be detrimental to the people’s honor, physical well-being, lives, consciences and property are prohibited''”.<br />
<br />
The 2004 Law on Criminal Procedure and the 1990 Penal Law contain additional defendant’s rights.<br />
<br />
==Defendants' Rights==<br />
<br />
====Pre-Trial====<br />
<br />
According to Article 21 of the Law on Criminal Procedure, an accused or defendant has the right to be informed of and defend himself against the charges made against him; submit evidence and requests; make copies of the documents in the case file after investigation has been completed; retain and meet with a lawyer to contest the case; participate in court hearings; require the recusal of a judge, public prosecutor, interrogator, investigator, expert, or translator; complain against their acts or orders; make a final statement in court hearings as the last party; appeal against, or request the cancellation of, an order of an investigator, an interrogator, or a public prosecutor, or an instruction, order, or decision of the people’s courts.<br />
<br />
Article 42 of the Constitution states that Lao citizens are inviolable in their bodies, honor and houses. Beating or torture of the arrested person is, therefore, expressly prohibited. The Law on Criminal Procedure clearly says that “''in the taking of testimony from the accused person or defendant, or from individuals who participate in the proceedings, it is prohibited to use violence, force, threats, beating, or other unlawful measures''” (Article 17 LCP).<br />
<br />
Article 154 of the Penal Law provides a punishment for any civil servant engaging in the intentional excessive use of the authority provided by law, thereby adversely affecting the interests of the State, society, or the rights and interests of citizens. As well, Article 171 of the Penal Law states that any person using physical violence and torture, or other measures inconsistent with the law, against suspects or prisoners during arrest, trial or serving of sentence shall be punished by 3 months to 3 years of imprisonment or re-education without deprivation of liberty.<br />
<br />
It is prohibited to arrest, detain, or conduct any search without an order from a public prosecutor or from a people’s court, except in the case of flagrante delicto or urgency. The arrest order, along with its cause shall be declared to the person to be arrested.<br />
<br />
If, after taking testimony from a suspect, reliable evidence is found that he committed an offense for which the laws prescribe the penalty of deprivation of liberty, the head of the investigating organization or the public prosecutor may issue an order to detain the suspect for 48 hours to conduct further investigations. The investigating organization shall report in writing to the public prosecutor within 24 hours from the time of the detention. After receiving the request, the public prosecutor must decide within 24 hours whether to release or to remand the detainee (Article 61 Law on Criminal Procedure). When a deprivation of liberty goes beyond the period provided for in the laws or court decisions, the public prosecutor shall issue an order to release the person immediately. According to the Law on Criminal Procedure, any individual who arrests, detains, or conducts any search in contravention of the laws shall be subjected to criminal proceedings and shall be criminally liable.<br />
<br />
====Trial====<br />
<br />
Cases shall be conducted in open court proceedings except if otherwise provided by the laws. The court shall ensure that criminal proceedings are conducted correctly and objectively (Article 83 Constitution and Articles 6 and 13 law on Criminal Procedure). Defendants, who must be regarded as innocent and treated as such until they have been convicted, have the right to defend themselves with the assistance of a lawyer (Article 83 Constitution, Article 7 Law on Criminal Procedure).<br />
<br />
The trial commences with a screening procedure of the case performed by one judge of the court, and it does not include the presence of the accused or his lawyer. The president of the court then determines the time for the court hearing, if he deems that the investigation has been conducted correctly and completely.<br />
<br />
After a trial is declared open, the presiding judge of the judicial tribunal asks for the biography of the defendant, and asks that the defendant be informed of the order of prosecution and the charges.<br />
<br />
Evidence must include proof of the defendant’s guilt as well as of his innocence, and it should be evaluated based on a comprehensive and objective consideration of the case. If the evidence casts doubts on the accused’s guilt, such person must be released from charges (Articles 20 and 2 Law on Criminal Procedure).<br />
<br />
Lao Law on Criminal Procedure provides for the temporary detention (“remand”) of the defendant for the purpose of investigations, pending the trial. The detention shall not exceed 3 months, with the possibility to extend it for additional 3 months. Persons remanded shall be detained separately from prisoners and shall be in appropriate conditions as they are regarded as innocent. If the remand continues beyond that time and there is insufficient evidence to prosecute the accused, the public prosecutor shall immediately issue a release order.<br />
<br />
====Post-Conviction====<br />
<br />
The defendant, or his lawyer, have the right to request an appeal against an instruction, order, or decision of the court at first instance. The court of appeal not only considers the matters of appeal or objection, but it reviews the whole case in relation to all the defendants, not just the defendant before the court on appeal.. The appellate court has the right to reduce the penalty, but has no right to increase the penalty, except when there is an objection of the public prosecutor. The same parties have the right to request the Court of Cassation to review the conformity of an instruction, order, or decision to the laws.<br />
<br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2004 Prison Population: 4.020 with 69 detainees for 100,000 people, based on an estimated national population of 5.8 million at mid-2004. 1% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Laos}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Vietnam&diff=9114Vietnam2011-02-18T10:45:05Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">VIETNAM CRIMINAL DEFENSE MANUAL</h2><br />
<br />
# [[Vietnam Criminal Defense Manual - The importance of legal defenders | The importance of legal defenders]]<br />
# [[Vietnam Criminal Defense Manual - Defending a criminal case | Defending a criminal case]]<br />
# [[Vietnam Criminal Defense Manual - First meeting with client | First meeting with client]]<br />
# [[Vietnam Criminal Defense Manual - Preparation of the defense | Preparation of the defense]]<br />
# [[Vietnam Criminal Defense Manual - Motions to aid the defense | Motions to aid the defense]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[Constitution of the Socialist Republic of Vietnam]]<br />
* [[Vietnam Criminal Procedure Code]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
<br />
<br />
The Socialist Republic of Vietnam comprises 58 provinces, 5 municipalities, and its capital is Hanoi. In 1858, France began the conquest of Vietnam which ended in 1887, when the latter became part of the French Indochina. Vietnam declared its independence after World War II, but France continued to rule until its 1954 defeat by Communist forces led by Ho Chi Minh.<br />
<br />
Under the Geneva Accords of 1954, Vietnam was divided into the communist north and anti-communist south. US economic and military aid to South Vietnam grew through the 1960s in an attempt to bolster the government, but US armed forces were withdrawn following a cease-fire agreement in 1973. Two years later, North Vietnamese forces overran South Vietnam reuniting the country under communist rule.<br />
<br />
The Vietnamese government has demonstrated a strong commitment and dedication to ensuring social and political stability as well as economic progress, as evidenced by the policies and changes implemented over the years. The introduction of Doi Moi (reform) in 1986 has put Vietnam in a position to prosper and flourish economically. The legal system is under revision, as demonstrated by the 1992 Constitution and 1988 Criminal Procedure Code. <br />
<br />
More recently, Vietnam became the 150th member of the World Trade Organization (WTO). With these new developments, Vietnam is in the process of bringing its legal system up to international standards and is introducing many new laws and needs help to implement them. Improvements in laws relating to legal aid and rights of lawyers, too, while providing new opportunities, also create more needs for training, in terms of lawyers' professional skills.<br />
<br />
==Type of System==<br />
The legal system is based on communist legal theory and French civil law system. <br />
Vietnam has a two-tier court system, made of courts of first instance and courts of appeal. The system consists of the Supreme People’s Court, the Provincial People’s Courts, and the District People’s Courts. There are specialized courts at the Supreme People’s Court, and at the provincial level. These include criminal courts, civil courts, economic courts, administrative courts and labor courts.<br />
The tribunal panels at the first instance are composed of both judges and people’s jurors (usually one judge and two people’s jurors, Article 185 Criminal Procedure Code). People’s jurors at each level are lay people elected by the People’s Council of the same level, at the recommendation of the Vietnam Fatherland Front. One major factor of concern related to the independence of the courts is the unwritten practice of local courts to request opinions from the superior courts, in complex cases.<br />
The district-level peoples courts and the regional military courts shall conduct first-instance trial of criminal cases involving less serious offenses, serious offenses and very serious offenses, excluding a few offenses such as the ones involving national security (Article 170 CPC).<br />
<br />
==Sources of Defendants' Rights==<br />
The Constitution was approved on 15 April 1992.<br />
Chapter V is dedicated to Fundamental Rights and Duties of the Citizen, and Article 50 affirms that in Vietnam “''human rights in the political, civic, economic, cultural and social fields are respected. They are embodied in the citizen's rights and are determined by the Constitution and the law.''”<br />
The Criminal Procedure Code (CPC) was approved in November 2003.<br />
<br />
==Defendants' Rights==<br />
Vietnamese citizens have the right to file complaints to the competent state authorities, against wrongdoings of individuals and state agencies. If they suffered losses and injuries, they are entitled to damages and their reputation shall be rehabilitated (Article 74 Const, Articles 29, 30, 31 CPC).<br />
According to both the Constitution and the Criminal Procedure Code (Article 52 Const., and Article 5 CPC), criminal proceedings shall be conducted according to law, and on the principle that all citizens are equal before law. All parties enjoy the same rights, such as the right to present evidence, documents and objects, make claims, and argue before the court (Article 19 CPC). <br />
The accused shall not be considered guilty until a court judgment becomes final (Article 72 Const, Article 9 CPC), and he is also entitled to the right to notice of charges (Article 49 CPC), and the right to defend himself or ask other persons to defend him. Investigating bodies, procuracies and courts have the duty to ensure that detainees, accused and defendants exercise their right to defense.<br />
<br />
====Pre-Trial====<br />
In accordance to article 71 Constitution, citizens are considered inviolable, and it is strictly forbidden using all forms of harassment, coercion, torture, and violation of their honor and dignity. As well, taking a person into, or holding him in, custody must be done with full observance of the law.<br />
<br />
People held in custody shall be informed of the reasons for their custody, and explained about their rights and obligations. They shall be allowed to defend themselves or ask other persons to defend them, and to complain about their custody, procedural decisions or acts of the bodies and/or persons with procedure-conducting competence (Article 48 CPC).<br />
<br />
Arrest, custody, temporary detention, ban from travel outside ones residence, guaranty, or deposit of money may be used to prevent crimes when there are grounds proving that the accused or defendants would cause difficulties to the investigation, prosecution or adjudication, or they would continue committing offenses (Article 79 CPC).<br />
<br />
Arrests require a warrant to be executed, unless offenders are caught red-handed. The arrestee has the right to be notified of the reasons of the arrest, as well as to have his family notified of the procedure. The person executing the arrest must strictly implement the law, and in case of violations he can be disciplined or criminally liable (Articles 6, 12, 80 CPC).<br />
<br />
The Criminal Procedure Code states that defense counsels must be present from the commencement of the criminal proceeding. In case of an arrest, the defense counsel must be present from the time the custody decisions are issued. However, in cases when it is necessary to keep secret, the chair of procuracies may decide to allow the participation of defense counsel starting from the termination of the investigation (Article 58 CPC).<br />
<br />
Any person who has been arrested, held in custody, prosecuted, brought to trial in violation of the law is entitled, according to the Constitution, to damages for any material harm suffered and his reputation shall be rehabilitated (Article 72 Cons).<br />
<br />
Searches require a warrant to be executed, as well. Body searches, searches of residences, working places and premises can be conducted only when there are grounds to believe that there are instruments, or other objects related to the commission of the offense (Articles 140,141 CPC).<br />
<br />
Confrontations and identifications must be conducted following the procedures indicated in Articles 138 and 139 of the Criminal Procedure Code.<br />
<br />
The interrogation of the accused must be carried on by investigators immediately after the decision to initiate criminal proceedings. Investigators must read the decision and clearly explain the accused his rights and obligations. In case of many accused, each of them must be questioned separately and they shall not be allowed to contact one another. Investigators are not allowed to conduct interrogation at night, except when it is otherwise possible, and motivation has to be given. Investigators or procurators who extort statements from the accused or apply corporal punishment to the accused must bear penal liability (Articles 130, 131 CPC).<br />
<br />
====Trial====<br />
Within 3 days after the decision to go forward with the prosecution, the procuracies must notify the accused and defense counsels. Within the following three days, the procuracies must send the files and indictments to the courts (Article 166 CPC).<br />
The burden of proof is upon the prosecution, and the defendant has the right not be forced to prove his innocence (Article 10 CPC).<br />
<br />
At trial, defendants have the right to notice of charges and to be informed of any decision regarding their case. They have the right to participate to court sessions, to receive explanations about their rights and obligations, to present documents, to defend themselves or ask other persons to defend them, to present opinions, argue at court sessions; to have final words before the final deliberation; and to appeal against judgments and decisions of the courts (Article 50 CPC).<br />
<br />
The accused, defendant or their lawful representatives have the right to choose their own defense counsel. If they do not seek legal assistance, the investigating bodies, procuracies or courts must request bar associations to appoint a defense counsel, in death penalty cases, minors, and people with physical and mental issues. One defense counsel may defend multiple persons in custody, accused or defendants in the same case, provided that the rights and interests of such persons are not conflicting. The accused and the defendant may have more than one defense counsel..<br />
<br />
Within three days from the date of receiving the requests of the defense counsel, the investigating bodies, procuracies or courts must consider and grant him the defense counsels certificates, in order to perform his duties (Articles 56, 57 CPC).<br />
<br />
Defense counsels have the following rights:<br />
<br />
* To be present when testimonies are taken from the persons in custody, when the accused are interrogated, and, ask questions to the persons in custody or the accused if so consented by investigators; and to be present in other investigating activities;<br />
* To read the minutes of the proceedings in which they have participated, and procedural decisions related to the persons whom they defend;<br />
* To request investigating bodies to inform them in advance of the time and places of interrogating the accused so as to be present when the accused are interrogated;<br />
* To request the change of procedure-conducting persons, experts and/or interpreters;<br />
* To collect documents, objects and details related to their defense;<br />
* To present documents, objects as well as claims;<br />
* To meet the persons kept in custody;<br />
* To meet the accused or defendants being under temporary detention;<br />
* To read, take notes of and copy records in the case files, which are related to their defense, after the termination of investigation according to law provisions; To participate in questioning and arguing at court sessions;<br />
* To complain about procedural decisions and acts of the bodies and persons with procedure-conducting competence (Article 58 CPC). <br />
<br />
<br />
Confessions of the accused or defendants shall only be regarded as evidences if they are consistent with other evidences of the cases. Confessions of the accused or defendants must not be used as sole evidences for conviction (Article 72 CPC).<br />
Defendants, victims and their lawful representatives have the right to appeal against first-instance judgments or decisions (Article 231 CPC).<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 107,668.<br />
<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Venezuela&diff=9113Venezuela2011-02-18T10:44:13Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LAWS OF VENEZUELA</h2><br />
*[[Media:Venezuela_Constitucion_2009.pdf | Constitution of Venezuela]]<br />
*[[Media:Venezuela_Codigo_Penal.pdf| Criminal Code of Venezuela]]<br />
*[[Media:Venezuela_Codigo_Procesal_Penal.pdf | Criminal Procedure Code of Venezuela]]<br />
*[[Media:Venezuela_Reforms_2009.pdf |Criminal Code Reforms of 2009]]<br />
*[[Media:Venezuela_Ley_Defensoria_del_pueblo.pdf | Venezuelan Ombudsman Laws]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
==Background==<br />
<br />
The Bolivarian Republic of Venezuela comprises 23 states, 72 federal dependencies, two federal territories and one capital district, Caracas. After being colonized by Spain, Venezuela gained its independence in 1811. As a result of the colonial period, the language spoken in Venezuela is Spanish and the predominant religion is Catholicism. <br />
<br />
Venezuela is a federal state, having three levels of government: national, states and municipal. Nonetheless, the judicial branch of government only exists at the national level. Also, the legislation relevant to the criminal justice system is enacted at the national level. <br />
The current Constitution was enacted in 1999 and later reformed in 2009. In 1999 two governmental branches, the citizen power and the electoral power, were added to the three traditional ones. Also, the Constitution recognized the existences of many human rights that were not expressively recognized by Venezuelan law before, constituting therefore a good improvement.<br />
<br />
==Type of System==<br />
<br />
Due to Spanish and French influence Venezuela has a civil law legal system. Therefore, the law is written in laws and codes, and courts' decisions do not create precedent. The only exception constitutes some decisions of the Supreme Court. In 1999, however, the traditional civil law criminal system was replaced by the adversarial system.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution and the Criminal Procedural code include the rights of the defendants. These are complemented by the American Convention on Human Rights and the International Covenant on Civil and Political Rights, both are binding upon Venezuela. Consequently, the rights of the defendant are according to international standards, including, among others, the presumption of innocence, equality before the law, due process, double jeopardy, the right to remain silent, and the right to counsel.<br />
<br />
==Pre-Trial==<br />
<br />
The Prosecution Office (Ministerio Público) is the entity empowered to initiate a criminal prosecution. It has the responsibility of investigating the alleged crime and it is obliged to communicate any evidence that may benefit the alleged responsible. The pre-trial judge (Juez de Control) has to ensure the compliance with due process. The pre-trial judge may decide to dismiss the case or to formalize the accusation.<br />
<br />
During the pre-trial phase, detention is possible. According to the law, this is an extreme measure and should last longer than 2 years. Nonetheless, in most cases, a pre-trial detention order is normally given easily and the two year condition is often times not enforced due to the delay on the proceedings.<br />
<br />
==Trial==<br />
With the implementation of the adversarial system the criminal proceedings became oral. The defendant must be normally present. If he does not wish to be present he may request a special permission to leave the courtroom. In any case he may communicate with his lawyer at any time. The defendant has the right to present documentary evidence as well as witnesses and expert witnesses, cross-examination is allowed. <br />
<br />
Both the defendant and the prosecutor may appeal the decision. After the court of appeals decision, there is the possibility to ask for cassation, for example in case of crimes which punishment is longer than four years in prison. There is also the possibility of revision on extreme cases, for cases already fully decided. For example, when a person has been condemned two times for the same crime, or when the principle evidence for conviction is proven as fake.<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 32,624 according to government statistics. 66.9% of the prison population is composed of pre-trial detainees or remand prisoners. <br />
<br />
{{Languages|Venezuela}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=The_Republic_of_the_Philippines&diff=9112The Republic of the Philippines2011-02-18T10:43:30Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF THE REPUBLIC OF THE PHILIPPINES</h2><br />
* [http://www.lawphil.net/consti/cons1987.html The Republic of the Philippines Constitution]<br />
* [http://www.lawphil.net/courts/rules/rc_110-127_crim.html The Revised Rules of Criminal Procedure]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The Republic of Philippines, comprises 80 provinces and 120 chartered cities. The capital of the Philippines is Manila.<br />
<br />
The Philippine islands were a Spanish colony during the 16th century. In 1898, they were ceded to the US, following the Spanish-American War. In 1935, the Philippines became a self-governing commonwealth. In 1942, the Philippines fell under Japanese occupation, and on 4 July 1946 the country gained independence, with the name of Republic of the Philippines.<br />
<br />
A 20-year rule by Ferdinand Marcos ended in 1986, when a people movement in Manila ("EDSA 1") forced him into exile, and installed Corazon Aquino as president. The current president, Benigno S. Aquino III, was elected on 30 June 2010.<br />
<br />
==Type of System==<br />
<br />
The judicial branch is composed of the Supreme Court, court of appeals, sandigan-bayan (special courts for hearing corruption cases of government officials), inferior courts (called regional trial courts, metropolitan trial courts, municipal trial courts in cities, municipal trial courts, and municipal circuit trial courts) Shari’a courts, and quasi-courts or quasi-judicial agencies for administrative matters.<br />
<br />
The legal system is based on Spanish and Anglo-American law, and Shari’a law for Muslims.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution was promulgated on 2 February 1987. Its preamble affirms that the Filipino people promote the rule of law and a regime of truth, justice, freedom, love, equality, and peace. Moreover, Article II Section 2 declares that the Philippines adopts the generally accepted principles of international law as part of the law of the land and adheres to the policy of peace, equality, justice, freedom, cooperation, and amity with all nations. Article III is called “Bill of Rights”, and its content resembles the American Bill of Rights. <br />
<br />
The sources of procedural criminal law are, besides the Constitution, the revised Penal Code of 1930, the New Rules of Court of 1964 Part III, IV, special laws, certain presidential orders, and letters of instruction.<br />
<br />
The Bill of Rights lists rights such as the right to life, the respect for human rights, the due process of law, the right to counsel, the right to remain silent, the freedom from excessive punishments and torture, the right to bail, the right against self incrimination, the habeas corpus, the double jeopardy, and the prohibition of ex post facto laws.<br />
<br />
====Pre-Trial====<br />
<br />
A warrant is normally required to make an arrest, according to Rule 112 of the New Rules of Court.<br />
<br />
Rule 113 states that “no violence or unnecessary force shall be used in making an arrest. The person arrested shall not be subject to a greater restraint than is necessary for his detention”. The officer must inform the person of the cause of the arrest, except when he flees or forcibly resists.<br />
<br />
The officer shall deliver the accused to the nearest police station or jail without unnecessary delay. At the request of the arrestee, any member of the Philippine Bar has the right to visit and confer privately with the person in detention, anytime.<br />
<br />
In all criminal cases, the court shall, after the arraignment and within 30 days from the date the court acquires jurisdiction over the accused (unless a shorter period provided by Supreme Court) order a pre-trial conference to consider preliminary matters, and, in general, all such matters “which will promote a fair and expeditious trial of the criminal and civil aspects of the case”. All agreements or admissions made during this hearing must be recorded in writing, and signed by the accused and counsel, otherwise, they cannot be used against the accused (Rule 118 Sections 1 and 2 of the New Rules of Court).<br />
<br />
====Trial====<br />
<br />
According to Rule 115 of the New Rules of Court, the accused is entitled to the following rights in all criminal proceedings.<br />
* To be presumed innocent until the contrary is proved beyond reasonable doubt.<br />
* To be informed of the nature and cause of the accusation against him.<br />
* To be present and defend in person and by counsel at every stage of the proceeding. The accused may, however, waive his presence at the trial. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his rights without the assistance of counsel. <br />
* To testify as a witness in his own behalf but subject to cross-examination on matters covered by direct examination. His silence shall not in any manner prejudice him.<br />
* To be exempt from being compelled to be a witness against himself. To confront and cross-examine the witnesses against him at the trial. <br />
* To have compulsory process issued to secure the attendance of witnesses and production of other evidence in his behalf.<br />
* To have speedy, impartial and public trial.<br />
* To appeal in all cases allowed and in the manner prescribed by law. <br />
<br />
After a plea of not guilty is entered, the accused shall have at least 15 days to prepare for trial, and the trial commences within 30 days from receipt of the pre-trial order. The accused who has been held to answer for an offense may, upon motion, have witnesses conditionally examined in his behalf (Rule 119 Section 12 of the New Rules of Court).<br />
<br />
According to Rule 119 Section 12 of the New Rules of Court, the public attorney assigned to defend a person must promptly obtain the presence of the prisoner for trial or cause a notice to be served on the person having custody of the prisoner requiring such person to so advise the prisoner of his right and demand trial. If the accused is not brought to trial within the time limit, the information may be dismissed. The accused has the burden of proving the motion but the prosecution has the burden of going forward with the evidence to establish the exclusion of time.<br />
<br />
Civil action for recovery of civil liability, within the criminal action, is admissible, and the offended party may intervene with the aid of a counsel, in the prosecution of the offense (Rules 110, 111 of the New Rules of Code).<br />
<br />
The prosecution shall present evidence to prove the charge and the civil liability, and the accused may present evidence to prove his defense. They may also present rebuttal evidence.<br />
<br />
After the discovery, the case is then submitted for decision, unless the court requires the parties to argue orally or to submit written memoranda (Rule 119 Section 11 of the New Rules of Code). The judgment must contain a clear statement of the facts and the law upon which it is based. The judgment is promulgated by reading it in the presence of the accused and any judge of the court in which it was rendered. However, if the conviction is for a light offense, the judgment may be pronounced in the presence of his counsel or representative (Rule 120 Sections 1, 2, 6 of the New Rules of Court).<br />
<br />
====Post-Conviction====<br />
<br />
At any time before a judgment of conviction becomes final, the court may, on motion of the accused or at its own instance but with the consent of the accused, grant a new trial or reconsideration (Rule 121 of the New Rules of Court).<br />
<br />
Any party may appeal from a judgment or final order, unless the accused will be placed in double jeopardy (Rule 122 Sections 1 and 2 of the New Rules of Court). An appeal taken by one or more of several accused shall not affect those who did not appeal, except if the judgment of the appellate court is favorable and applicable to the latter (Rule 122 Section 11 of the New Rules of Court). <br />
<br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
* Prison population: 102.267 based on an estimated national population of 91.98 million at June 2009. 63.3% are pre-trial detainees and remand prisoners.<br />
<br />
{{Languages|The Republic of the Philippines}}<br />
<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Thailand&diff=9110Thailand2011-02-18T10:42:51Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF INDONESIA</h2><br />
* [[Media:CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT. Initial report_THAILAND.pdf | CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES UNDER ARTICLE 40 OF THE COVENANT. Initial report_THAILAND]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
The Kingdom of Thailand, established in the mid-14th century, is a constitutional monarchy, and it comprises 76 provinces. Its capital is Bangkok.<br />
The unified Thai kingdom (Siam until 1939) was established in the mid-14th century, and it is the only Southeast Asian country which has never been taken over by a European power.<br />
In alliance with Japan during World War II, Thailand became a US treaty ally following the conflict.<br />
Since January 2004, thousands have been killed as separatists in Thailand's southern ethnic Malay-Muslim provinces increased the violence associated with their cause.<br />
The religion is predominantly Buddism is the predominant religion. However, Muslims are the 4.6% of the population and Christians the 0.7%.<br />
==Type of System==<br />
The legal system is based on the civil law model, with influences of common law. <br />
There are three types of first instance courts: general courts, juvenile and family courts, and specialized courts (e.g. the Labour Court, and the International Trade Court). The courts of appeal consist of the Court of Appeal and nine regional courts of appeal. They have jurisdiction to hear and adjudicate appeals from judgments and orders of the courts of first instance, and can hear appeals on both questions of law and fact.<br />
==Defendants' Rights==<br />
The Constitution was approved on 24 August 2007, and it is the supreme law of the land.<br />
Part IV deals expressly with the “Rights in Judicial Processes”. The respect for human dignity, rights and liberties is expressed more than once in the document (Sections 4, 26, 32). In particular, Section 32 forbids torture and other cruel or inhumane means, and Section 289 (5) of the Penal Code provides for heavier punishment of a crime that is of cruel nature, such as the killing of a person by torturing or cruelty.<br />
The prohibition of ex post facto laws and the presumption of innocence are also granted in the Constitution, and, the second one, in the Criminal Procedure Code (Articles 165 and 227).<br />
==Pre-Trial==<br />
The arrestee has the right to be informed on the reasons of the arrest (Section 83 and 84 of the Criminal Procedure Code), and the pre trial detention cannot last more than 48 hours. However, the accused can be detained up to 12 days before being brought to the court for investigation purposes, (depending on the gravity of the crime, and with permission of the court). During detention, the accused cannot be subjected to torture or other inhuman treatment (Section 7 bis Criminal Procedure Code), and he has the right to meet his lawyer, to have visitors, and the right to receive medical treatment.<br />
==Trial==<br />
Section 40 of the Constitution affirms that each person must have the following procedural rights: right to access to judicial process easily, comfortably, quickly and indiscriminately; right to public trial; right to be informed of and to examine into facts and related documents adequately; right to present facts, defenses and evidences in the case; right to object the partial judges; right to be considered by the full bench of judges; right to be informed of justifications given in the judgment or order.<br />
Alleged offenders and accused have the right to correct, prompt and fair investigation and trial, the right to defend their case, the right to examine evidence, and cross-examine witnesses, the right to defend themselves through counsel, the right not to testify against themselves, and the right to bail. <br />
Section 39 (4) of the Criminal Procedure Code protects the defendant from double jeopardy. <br />
The Criminal Procedure Code specifies that the trial, taking of evidence, and the reading of the judgment in a criminal case shall be done in open court and in the presence of the accused unless the law provides otherwise (Sections 172 and 182).<br />
Section 226 of the Criminal Procedure Code provides that any material, documentary or oral evidence likely to prove the guilt or innocence of the accused is admissible, provided it was not obtained through inducement, promise, threat, deception or other unlawful means. According to the Regulation of the Department of the Public Prosecutor, the public prosecutor has always take into consideration the human rights aspects, when dealing with a criminal case.<br />
==Right to Counsel==<br />
Section 173 Criminal Procedure Code provides that in case of offenses punishable with death or imprisonment, or if the accused is not yet 18 years old, before the commencement of the trial, the court must ask the accused whether he has a counsel or not, and if he has none, the court must appoint one for him.<br />
==The Correction System==<br />
The 1936 Correction Act states that the correction officers must refrain from using weapons against prisoners except in certain cases such as a group of three or more prisoners attempt to escape or cause violence. Prisoners who breach rules of discipline receive punishments, such as imprisonment in a sole cell or a dungeon, or to be whipped. Prisoners have different rights such as: a) Education or training; b) Medical treatment c) probation, reduction of imprisonment terms; e) Reside in separation, according to sex, age and type of offenses; exercise and walk outside the cell.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 212,058, based on an estimated national population of 67.8 million at December 2009. 24.8% are pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Thailand}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Zanzibar&diff=9109Zanzibar2011-02-18T10:42:19Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[Media:Constitution_Zanizibar.pdf | Constitution of Zanzibar]] <br />
* [[Media:Zanzibar_Penal_Code.pdf | Penal Code of Zanzibar]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[http://caselaw.ihrda.org African Human Rights Case Law Analyser]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Zanzibar is a semi-autonomous region of Tanzania and, although it is integrated into Tanzania’s governmental and party structure, has its own president, court system, and legislature.<br />
<br />
Zanzibar elects a president who is head of government for matters internal to Zanzibar; Ali Mohamed Shein was elected to office on 31 October 2010 and was sworn in on 3 November 2010. Similar to the presidency, Zanzibar has its own House of Representatives that legislates specifically for Zanzibar. The Zanzibar House of Representatives has 50 seats; members elected by universal suffrage serve five-year terms. <ref>US Department of State (2010), 2009 Human Rights report: Tanzania</ref><br />
<br />
==Type of System==<br />
<br />
The Zanzibar legal systems are based on British common law and also recognize customary and Islamic law in civil cases. In criminal matters both Christians and Muslims are governed by statutory or common law. A Judicial Service Commission, chaired by the chief justice of the Court of Appeal, appoints all judges except those for the Court of Appeal and the high courts, who are appointed by the president. All courts, including Islamic courts in Zanzibar, are staffed by civil servants. <br />
<br />
Tanzania, which includes Zanzibar, has a five-tier judicial system whose highest court is the Court of Appeal. In almost all respects the Zanzibar court system is similar to the system on the mainland. However, since Zanzibar’s population is almost completely Muslim, there is a system of Islamic Kadhi courts with its own hierarchy and appellate court. These courts deal with family matters, such as divorce, child custody and inheritance, and only arbitrate cases involving Muslims. Cases concerning Zanzibar constitutional issues are heard only in Zanzibar's courts. All other cases may be appealed to the national Court of Appeal.<br />
<br />
Under international law, the government of the United Republic of Tanzania, which is located on the mainland, has the power to ratify international treaties. Tanzania has ratified the ICCPR and ACHPR. Legislative action locally is necessary to ratify international treaties, but courts are directed by the directive to uphold human dignity in accordance with the Universal Declaration of Human Rights and government legislation.<br />
<br />
==Defendants' Rights==<br />
<br />
====Pre-Trial====<br />
<br />
Zanzibar is ruled by its own constitution and the constitution of the Mainland. Also, in accordance with article 24 (3) the duty to deal with fundamental rights and freedoms is conferred to the High Court. This brings problems of access to justice for the poor as these are only in few places and a lawyer is necessary. Both constitutions have provisions that are relevant for rights and freedoms in case of arrest and criminal procedure. Articles 15(2)(a) of the Union Constitution and 14(2)(a) of the Zanzibar Constitution provides that “… no person shall be arrested … confined, detained or otherwise deprived of his freedom save only under circumstances and in accordance with procedures prescribed by law”. <br />
<br />
The sections 21 and 22 of the Criminal Procedure Act provide the legal space surrounding arrest and pre-trial detention. One of the important sections is 21 (a) dictating the need for “reasonable suspicion” before a person is arrested or detained. <br />
Additionally, the presumption of innocence is guaranteed in article 13 of the Union Constitution and in article 12 of the Zanzibar Constitution, insists that “no person charged with a criminal offence shall be treated as guilty of the offence until proved guilty of that offence”. The Criminal Procedure Act in its section 30(1)(b) requires the arrested individual to be informed to the specifics of his/her arrest. Torture has been outlawed by the Zanzibar Constitution in its Article 13 that prohibits subjecting any person under custody to torture or inhuman or degrading punishment or treatment. Habeas corpus provisions are safeguarded through section 388(b) of the CPA. <br />
<br />
====Right to Counsel====<br />
<br />
In Zanzibar, the right to legal counsel is a constitutional right and is part of the right to fair trial (article 13(6)(a) of the Union Constitution and article 12(a) of the Zanzibar Constitution) which extends this right to all poor suspects accused of all offences which might attract a sentence of over five years imprisonment. Consequently, many who are accused of petty crime do not have access to legal aid and are in pre-trial detention for long periods of time. Section 30(3) of the Criminal Procedure Act entitles the pre-trial detainees to legal counsel during police interrogation. Section 28 limits detention period in police custody not to exceed twenty-four hours unless the extension is granted by a magistrate.<ref> Hamad, Hamad Khamis (2006), Pre-Trial Detention in Zanzibar: A Study of Human Rights of Pre-trial Detainees under domestic law and practices, University of Oslo</ref><br />
<br />
Few of the problems with providing access to legal assistance for all people in Zanzibar is the proximity and availability to courts, shortage of manpower, court fees, lack of legal education and awareness among the population, lack of legal aid and a pro bono culture and delay of cases. <ref>Legal Human Rights Centre (2010) ‘Tanzania Human Rights Report 2009’</ref><br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
-----<br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
Prison conditions are harsh. There have reports of torture and other ill-treatment. Local human rights groups recorded a marginal decrease in prison overcrowding and noted that the problem was mainly due to delays in adjudicating court cases and an inadequate use by courts of non-custodial sentences. According to the Legal and Human Rights Centre and Zanzibar Legal Services Centre, almost half of the prison population comprised pre-trial detainees <ref> Amnesty International Report 2010, at http://www.unhcr.org/refworld/country,,,,TZA,456d621e2,4c03a7fac,0.html</ref><br />
<br />
==Notes==<br />
<references/><br />
{{Languages|Zanzibar}} <br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9108Swaziland2011-02-18T10:41:42Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
Swaziland is an absolute hereditary monarchy (Kingdom of Swaziland is the conventional long name of the country). King Mswati III has ruled since 25 April 1986. The Head of the Government, appointed by the monarch from among the elected members of the House of Assembly, is Prime Minister Barnabas Sibusiso Dlamini (since 16 October 2008). The Cabinet is recommended by the prime minister and confirmed by the monarch.<br />
Swaziland gained its independency form Britain on 6 September 1968. Student and labor unrest during the 1990s pressured King Mswati to allow political reform and greater democracy. A constitution came into effect in 2006, but political parties remain banned. The African United Democratic Party tried unsuccessfully to register as an official political party in 2006. Talks over the constitution broke down between the government and progressive groups in 2007.<br />
According to 2006 data, 69% of the population lives below the poverty line.<br />
According to the UNDP, the Human Development Index (HDI) for 2007 for Swaziland is 0.572, which gives the country a rank of 142 out of 182 countries with data. <br />
Swaziland acceded the ICCPR on 26 Mar 2004.<br />
==Type of System==<br />
Swaziland operates under a dual legal system: Roman-Dutch common law (under which the Constitutional Courts operate) and customary law. <br />
The system based on Roman-Dutch law consists of the Supreme Court, the High Court, and magistrate courts. The Supreme Court, which is composed of foreign-born judges and two Swazis, has appellate and supervisory jurisdiction over the High Court and magistrate courts.<br />
Neither the Supreme Court nor the High Court has jurisdiction in matters concerning the office of the king or queen mother, the regency, the Swazi National Council, or the traditional regiments system, all of which are governed by traditional laws and customs.<br />
The traditional courts follow traditional laws and customs and serve the chiefs appointed by the king, and have limited civil and criminal jurisdiction. They are authorized to impose fines of up to 100 emalangeni ($13.50) and prison sentences of up to 12 months, and their decisions can be appealed to the High Court.<br />
In the customary courts, the legal representation of accused persons is not possible and evidence cannot be presented. Only the most serious cases are considered for transfer to the magistrate courts.<br />
Although the law states that the prosecutor presides over the allocation of cases to the appropriate courts, often the decision is made by the police officers at the time of arrest.<br />
Swaziland does not have dedicated minors’ courts. Only the High Court has a dedicated section that facilitates all matters involving minors. <br />
==Sources of Defendants' Rights==<br />
Swaziland does not have a single code containing its laws. Instead the laws of the country are drawn from: the Constitution, legislation, common law, judicial precedent, customary law, authoritative texts, and decrees.<br />
Chapter III of the Constitution is titled “Protection and Promotion of Fundamental Rights and Freedoms” (articles 14-39), and it provides for the fundamental rights and freedoms of the individual, the protection of right to life and personal liberty, the protection from inhuman or degrading treatment, for the equality before the law and the right to a fair hearings, and for the protection against arbitrary searches.<br />
==Defendants' Rights==<br />
====Trial====<br />
The Constitution provides for the right to a fair public trial (Article 21), except when exclusion of the public is necessary in the “''interests of defense, public safety, public order, justice, public morality, the welfare of persons under the age of 18 years, or the protection of the private lives of the persons concerned in the proceedings.''”<br />
Defendants enjoy a presumption of innocence, and According to Article 21(9) Constitution, “A person who is tried for a criminal offense shall not be compelled to give evidence at the trial”.<br />
====Pre-Trial====<br />
The law requires warrants for arrests, except when police observe a crime being committed, believe that a person is about to commit a crime, or conclude that evidence will be lost if arrest is delayed. <br />
Detainees must be charged with the violation of a statute within a reasonable time, usually within 48 hours form the arrest, or, in remote areas, as soon as the judicial officer appears.<br />
Lengthy pretrial detention is common. At Mawelawela, the only female detention facility, detainees are not held separately from convicts. Several children live with their mothers in the facility. Female juveniles are also held in the women's correctional facility, although they sleep in different quarters.<br />
There is a bail system, and suspects can request bail at their first appearance in court, except in serious cases such as murder and rape.<br />
The Constitution prohibits torture and other inhuman practices. However, this provision is located in the “policy” section of the constitution and it is not enforceable in any court or tribunal.<br />
Section 21(2)(c) of the Constitution provides that a person charged with a criminal offense shall be entitled to legal representation at the expense of government in the case of any offense which carries a sentence of death or life imprisonment. However the country does not have a legal aid system, save for pro bono counsel offered by the state in capital cases (detainees may consult with a lawyer of their choice, but the government pays for defense counsel only in cases in which the potential penalty is death or life imprisonment). Otherwise, defendants in superior and magistrate courts may hire counsel at their own expense.<br />
Defendants can question witnesses against them and present witnesses and evidence on their own behalf. Defendants and their attorneys have access to relevant government-held evidence, generally obtained during pre-trial consultations with the public prosecutor's office.<br />
Defendants and prosecutors have the right of appeal, up to the Supreme Court.<br />
<br />
Defendants in traditional courts are not permitted formal legal counsel but may speak on their own behalf, call witnesses, and be assisted by informal advisors.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 2.628 (based on an estimated population of 1.2 million). 27.5% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Swaziland}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=South_Africa&diff=9107South Africa2011-02-18T10:40:53Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES FOR SOUTH AFRICA</h2> <br />
*[http://www.info.gov.za/documents/constitution/index.htm South Africa Constitution]<br />
*[http://www.lexadin.nl/wlg/legis/nofr/oeur/lxwezaf.htm Laws of South Africa]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2> <br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
<br />
The Republic of South Africa is divided into nine provinces, with the nation’s capitol located at the city of Pretoria. <ref>CIA World Factbook, available at <www.cia.gov/library/publications/the-world-factboook></ref> In 1652, Dutch traders discovered the area surrounding Cape Town and in 1806 the territory was won by the British in the notorious Boer Wars. After independence in 1910, South Africa was ruled according to a policy of extreme apartheid (World Factbook). Only when the African National Congress (ANC) came to power in 1994 did this system end and the nation celebrated its first ever majority rule (World Factbook). Today, the ANC still rules in a country that struggles with high poverty levels, economic inequality, poor education, and the world’s highest HIV/AIDS death rate (World Factbook). The ANC itself experiences increasingly high levels of infighting which threaten to disturb the general peace that the country has finally achieved (World Factbook). In South Africa, 79% of the population is native to Africa and 9.6% are European (World Factbook). The religion is predominately Christian, with over 36% of the population identifying as some Christian denomination. <ref>CIA World Factbook, available at <www.cia.gov/library/publications/the-world-factboook></ref><br />
<br />
==Type of Judicial System==<br />
<br />
<br />
The legal system in South Africa is a hybrid model comprised of constitutional provisions, national statutes, common law rules, and case law. Above all, the Constitution of South Africa is the supreme law, and no other laws may compromise any rights awarded in the Bill of Rights. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 471 ( 2d ed., Carolina Academic Press 2007)</ref> The most important criminal trial courts are the District Magistrates’ Courts, the Regional Magistrates’ Courts, and the High Court. Trial procedures in the lower and higher courts are exactly the same, save for a few minor exceptions. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 499 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Source of Defendants' Rights==<br />
<br />
<br />
The Constitution of the Republic of South Africa was written in 1996 and came into effect in 1997. The South African Constitution is the supreme law of South Africa. No other laws may compromise any rights that are awarded to the defendant in the Bill of Rights, unless a court with the necessary power finds that there is a constitutionally permissible limitation. The current Constitution contains South Africa’s first Bill of Rights and represents a complete break from past apartheid-era policies. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 471 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Pre-Trial Phase==<br />
<br />
<br />
Section 35 (1) (d) of the South African Constitution details the rights of the arrested, detained and accused and is drawn from local statutory and common law procedures as well as international conventions. This section states that everyone who is detained has the right to be informed of the reasons for being detained, must be brought before a court within 48 hours of the arrest, has the right to legal representation, and has the right to communicate with or be visited by family. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 472-73 ( 2d ed., Carolina Academic Press 2007)</ref> Section 12 Article 1 also states that everyone has the right to freedom and security of person, which includes the right to: not be detained without trial, not be tortured in any way, to be free from all forms of violence, not to be deprived of freedom arbitrarily, and not to be treated or punished in a cruel, inhuman, or degrading way. Arrests may be made with or without warrants. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 475 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Court Procedures==<br />
<br />
In terms of pre-trial procedure, Section 35 (1) (e) of the Constitution states that at an arrested person’s first court appearance, the arrested must be either charged, released, or informed of the charges brought before them. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 500 ( 2d ed., Carolina Academic Press 2007)</ref> In South Africa, there is no such thing as prosecutorial investigation. This means that the investigation of the crime is carried out by the police who then submit the file to a prosecutor. The prosecutor does not directly participate in any investigative work, but merely oversees the investigation and decides whether there is a successful chance of prosecution. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 501 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Pre-trial motions that are intended to exclude evidence on the basis of exclusionary rules are not prominent in the South African legal system. Instead, objections to the admissibility of statements such as confessions or admissions are dealt with at the trial stage in a procedure that is known as the “trial-within-a-trial” system. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 502 ( 2d ed., Carolina Academic Press 2007)</ref> The South African Constitutional Court has held that an accused person is constitutionally entitled to pre-trial discovery of all evidence in police files, unless said evidence compromises the identity of a witness/informer etc. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 503 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
South African trial proceedings are largely adversarial. According to the principle of the presumption of innocence, prosecutors are required to prove their case beyond a reasonable doubt. All trials are also public. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 503 ( 2d ed., Carolina Academic Press 2007)</ref> Additionally, Section 35 (3) (e) of the Constitution guarantees the accused the right to be present at their trial, unless that person continues to exhibit loud and disruptive behavior. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 510 ( 2d ed., Carolina Academic Press 2007)</ref> Finally, the Constitution ensures that the accused have the constitutional right to be protected from double jeopardy, meaning they cannot be punished twice for the same single offense. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 506 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Section 35 (3) (g) of the South African Constitution guarantees the accused the right to legal representation. If the accused cannot afford legal representation, the state will assign that person a legal practitioner. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 512 ( 2d ed., Carolina Academic Press 2007)</ref> Both the prosecution and the defense have the right to call witnesses to the stand and said witness has the right to refuse to answer questions if those questions incriminate them. Both parties may similarly call expert witnesses. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 513 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
South African judges preside on the High Court, Supreme Court of Appeal, and Constitutional Court and are appointed by the President of South Africa. All judges must retire at age seventy. Additionally, South African magistrates are civil servants and can be either former prosecutors or lawyers. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 514 ( 2d ed., Carolina Academic Press 2007)</ref> South Africa does not currently have statute addressing the rights of victims of crime. Victims of crimes cannot request that prosecutors either withdraw or proceed with any case. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 515 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Section 35 (3) (h) of the South African Constitution guarantees that an accused person has the right to appeal to a higher court. If an appeal is successful, the higher court may only set aside the previous conviction on the following grounds: that the trial court was not competent or that the indictment was invalid or there was some “technical irregularity or defect in the procedure”. The prosecution cannot appeal an acquittal of the accused (page 515). <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 515 ( 2d ed., Carolina Academic Press 2007)</ref> South Africa has a system of automatic review in which the lower court sends the High Court a complete record of the case. A High Court judge must then confirm that the proceedings were “in accordance with justice”. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 516 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==References==<br />
<references/><br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
*South Africa has a total prison population of 160,026, with 319 per every 100,000 people in prison<br />
*Approximately 29% of the South African prison population is made up of pre-trial detainees and .6% is comprised of juvenile prisoners<br />
*South Africa currently has 239 prison institutions with an official prison capacity of 118,154. The current occupancy level for South African prisons is at 135.4%. <br />
<br />
{{Languages|South Africa}}<br />
<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Myanmar&diff=9106Myanmar2011-02-18T10:39:54Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2> <br />
*[[Media: Myanmar Constitution.pdf | Myanmar Constitution]]<br />
*[http://www.blc-burma.org/html/Criminal%20Procedure%20Code/cpc_index.html Myanmar Criminal Procedure Code]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2> <br />
*[http://www.networkmyanmar.org/index.php?option=com_content&view=article&id=52&Itemid=94 Network Myanmar]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2> <br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Since 1989, the military authorities governing Burma have promoted the name Myanmar as a conventional name for their state.<br />
<br />
Myanmar comprises 7 divisions and 7 states. Its capital is Nay Pyi Taw, and the biggest city is Rangoon. Britain controlled Myanmar over a period of 62 years (1824-1886) and incorporated it into its Indian Empire. Myanmar gained independence from Great Britain on 4 January 1948. <br />
<br />
A popular uprising was forcibly crushed in 1988, and mass demonstrations were not seen again until 2007, when a small string of protests about living standards gained momentum among the citizens. Prominent pro-democracy leader and Nobel Peace Prize winner, Aung San Suu Kyi, has had various restrictions placed on her activities since the late 1980s. Her party, the National League for Democracy (NLD), won a victory in 1990 in Burma's first multi-party elections in 30 years, but has never been allowed to govern. The last elections, held in November 2010, were boycotted by the NLD. <br />
<br />
Military-run enterprises control key industries. Corruption and severe mismanagement are the hallmarks of a black-market-driven economy. Military offensives against insurgents have uprooted thousands of civilians. The generals and the army stand accused of gross human rights abuses, including the forcible relocation of civilians and the widespread use of forced labour, including children. <br />
<br />
==Type of System== <br />
<br />
The legal system is based on English common law. Remnants of the British-era legal system are in place, but there is no guarantee of a fair public trial, and the judiciary is not independent from the executive.<br />
<br />
According to Articles 18 and 293 of the Constitution, judicial power is shared among the Supreme Court of the Union, the High Courts of the Region, the High Courts of the State, the Courts of the Self-Administered Division, the Courts of the Self- Administered Zone, District Courts, Township Courts and the other courts constituted by law, the Courts-Martial, and the Constitutional Tribunal of the Union. About jurisdiction, Article 44(4) of the Criminal Procedure Code states that “''the term ‘offense’ includes an act committed at any place out of the Union of Myanmar which would constitute a offense if committed in the Union of Myanmar''.” <br />
<br />
==Sources of Defendants' Rights==<br />
<br />
Defendant’s rights in criminal proceedings are found in the Constitution and in the Criminal Procedure Code.<br />
<br />
The Constitution was approved on 3 January 1974, but it has been suspended since 18 September 1988. The text of a new Constitution officially received 92.48% support in a May 2008 referendum that most observers believe fell far short of international standards of free and fair elections. The document contains different principles related to the functioning of the criminal justice system such as the principle of legality in the administration of justice, the equality before the law, the right to defense, the prohibition of ex post facto laws, the right to personal liberty, the double jeopardy, and the principle that no penalty must violate human dignity (Article 44). <br />
<br />
The Criminal Procedure Code was enacted in 1898, but it does not contain or elaborate further on all the rights enshrined in the Constitution, notably the right to defense.<br />
<br />
==Defendants' Rights==<br />
<br />
====Pre-Trial====<br />
<br />
The regular procedure to make an arrest requires a written warrant. The cases where an arrest can be made without a warrant, however, are many (Section 54 Criminal Procedure Code). The police officer or other person executing an order of arrest must notify and show the warrant to the arrestee. As well, an order is required in order to conduct searches (Sections 47 and 48 Criminal Procedure Code). <br />
<br />
A police officer making an arrest without warrant has to take or send the arrestee before the officer in charge of the police station, without unnecessary delay. The custody cannot be for a longer period than is reasonable under all the circumstances. In any case, in the absence of a special order of a magistrate, the period cannot exceed 24 hours exclusive of the time necessary for the journey to get to the magistrate’ s court (Sections 60, 61 Criminal Procedure Code). <br />
<br />
The detention must not exceed 30 days when a person is accused of an offense punishable with, at least, 7 years of imprisonment. The duration is limited to 15 days, if the charge concerns an offense punishable with, at the most, 7 years imprisonment (Section 167 Criminal Procedure Code). <br />
<br />
The maximum duration of the pre trial detention is not determined.<br />
<br />
In case of a confession, Section 164(3) Criminal Procedure Code requires that, before recording, a magistrate shall explain to the person making the statement that he is not bound to make a confession and that if he does so it may be used as evidence against him. Moreover, a magistrate cannot record a confession if he has reason to believe that it was not made voluntarily. <br />
<br />
Bail, bonds, and sureties are envisioned in the Criminal Procedure Code in Chapters XXXIX, and XLII.<br />
<br />
====Trial====<br />
<br />
Trials before magistrates commence upon the reception of a complaint, a report from any police officer, information received from any person, and if the magistrate is of the opinion that there is sufficient ground for proceeding. After having framed a charge, the proceeding magistrate shall read and explained it to the accused. Next, the magistrate proceeds to hear the complainant, and consider the evidence produced in support of the prosecution or in behalf of the accused, or as may be called for by the magistrate. The accused may cross-examine the witnesses for the prosecution, and may give evidence on his behalf. <br />
<br />
During the trial, as well as during the investigation phase, the court may question the accused as the court considers necessary. The accused may refuse to answer any questions or give false answers, but the court and the jury (if any) may consequently draw inference from such refusal or answers (Section 342 Criminal Procedure Code). <br />
<br />
Trials before high courts and courts of session are conducted before a jury.<br />
<br />
====Post-Conviction====<br />
<br />
Matters of fact as well as matters of law (except where the trial was by jury, in which case it is possible to appeal on matter of law only) may constitute grounds of appeal. Anyone who has been ordered to give security, or any person convicted on a trial held by any second class magistrate, or in respect of whom an order has been made or a sentence has been passed by a sub-divisional magistrate of the second class, may appeal to the district magistrate. Any person convicted on a trial held by an assistant sessions judge, a district magistrate or other magistrate of the first class, or in respect of whom an order has been made or a sentence has been passed under by a magistrate of the first class, may appeal to the court of session. An appeal to the court of session or Sessions judge shall be heard by the sessions judge, or by an additional sessions judge. Any person convicted on a trial held by a session Judge, or an additional sessions judge, may appeal to the high court (Chapter XXXI Criminal Procedure Code). <br />
<br />
Section 435 of the Criminal Procedure Code provides the possibility for the high court, or any sessions judge or district magistrate, or any sub-divisional magistrate empowered by the President of the Union, to examine the record of any proceeding before any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior court. <br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
* There are 60,053 people held in Myanmar prisons. 10.8% are pre-trial detainees and remand prisoners, according to 2009 data. <br />
{{Languages|Myanmar}} <br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Malaysia&diff=9105Malaysia2011-02-18T10:39:16Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2> <br />
*[[Media:Malaysia Constitution.pdf | Malaysia Constitution]]<br />
* [http://www.agc.gov.my/Akta/Vol.%2012/Act%20593.pdf Malaysian Criminal Procedure Code]<br />
* [http://uaa-static.s3.amazonaws.com/Penal%20Code-Act%20574.AGC%20-%20copie.pdf Malaysian Penal Code]<br />
* [http://www.malaysianbar.org.my/laws/LPA.pdf Legal Professional Act 1976]<br />
* [http://www.agc.gov.my/Akta/Vol.%201/Act%2026.pdf Legal Aid Act 1971]<br />
* [http://uaa-static.s3.amazonaws.com/Penal%20Code-Act%20574.AGC%20-%20copie.pdf Malaysian Penal Code]<br />
* [http://www.kpwkm.gov.my/uploadpdf/ChildrenActOf2001.pdf Child Act 2001]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2> <br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Malaysia comprises 13 states and 1 federal territory with three components: the city of Kuala Lumpur (the capital), Labuan, and Putrajaya. Malaysia was a British colony and protectorate in the late 18th and 19th centuries, it was occupied by Japan from 1942 to 1945, and it became independent from Great Britain in 1957. <br />
<br />
Malaysia is a constitutional monarchy, headed by the King and a bicameral Parliament consisting of a non-elected upper house and an elected lower house. All peninsular Malaysian states have hereditary rulers called sultans, except Melaka and Pulau Pinang, which have governors. <br />
<br />
==Type of System==<br />
<br />
The Malaysian judicial branch is made up of the superior courts and the subordinate courts. The superior courts comprise the Federal Court (the highest court), the Court of Appeal and the two High Courts. By virtue of Article121(1) of the Federal Constitution judicial power in the Federation is vested in two High Courts of Coordinate Jurisdiction and Status, namely the High Court of Malaysia for Peninsular Malaysia and the High Court of Borneo for Sabah and Sarawak. Inferior courts may be created by federal law. <br />
<br />
The subordinate courts consist of the Sessions Court, Magistrates’ Court and the Penghulu’s Courts. The Subordinate Courts in Sabah and Sarawak consist of the Sessions Court, Magistrates’ Courts and Native Courts. In the hierarchy of Subordinate Courts the lowest is the Penghulu’s Court. A Penghulu is a headman appointed by a state government. The criminal jurisdiction of a Penghulu’s Court is limited to the trial of offences of a minor nature. In addition, there is also a juvenile court for offenders below the age of 18.<br />
<br />
The legal system is based on English common law. Islamic law, however, is applied to Muslims in matters of family law and religion.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution was approved on 31 August 1957, and it has been amended many times. Part II is titled “Fundamental Liberties”, and it contains some fundamental rights related to criminal proceedings, such as the equality before the law, the prohibition of ex post facto laws, the double jeopardy principle, and the privilege against self incrimination. The Criminal Procedure Code, Act 593, however, is the principal source of defendant’s rights. <br />
<br />
==Defendants' Rights==<br />
<br />
A warrant is required to make an arrest, but, there are many exceptions to the rule (Article 23 Criminal Procedure Code). Article 5 of the Constitution requires that when a person is arrested, he shall be informed as soon as possible of the grounds of his arrest and shall be allowed to consult with and be defended by a legal practitioner of his choice. The same provision states that if a complaint is made to a High Court or any judge that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him. <br />
<br />
An arrested person must be produced before a magistrate without unreasonable delay, and in any case within 24 hours (Articles 5(4) Constitution, 28 Criminal Procedure Code ). If the investigation cannot be completed within this timeframe, and there are grounds for believing that the accusation or information is well founded, upon the request of the police officer making the investigation, the Magistrate may authorize the detention of the accused for a term not exceeding fifteen days(Article 117 Criminal Procedure Code).<br />
<br />
Any statement made at any time, whether before or after the person is charged, whether in the course of a police investigation or not, and whether or not wholly or partly in answer to questions, shall be admissible in evidence at his trial. Additionally, if the person charged tenders himself as a witness, any such statement may be used in cross-examination and for the purpose of impeaching his credibility. According to Article 113 Criminal Procedure Code, no such statement is admissible if the making of the statement appears to the court to have been caused by any inducement, threat, or promise having reference to the charge.<br />
<br />
==Post-Conviction== <br />
<br />
The system gives the possibility to appeal the judgment of a magistrate or of the High Court, and also the possibility of “revision”. A judge may indeed examine the record of any proceeding before any subordinate criminal court for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that subordinate court. However, no party has any right to be heard, either personally or by advocate, but the judge may, if he thinks fit, hear any party (Article 323 Criminal Procedure Code). <br />
----<br />
See [[Criminal Justice Systems Around the World ]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
* There are 36,040 held in Malaysian prison. 32.3% are pre-trial detainees and remand prisoners. <br />
{{Languages|Malaysia}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Liberia&diff=9104Liberia2011-02-18T10:38:42Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[[Media:Constitution Liberia.pdf|Liberia Constitution]]<br />
<br />
*[http://www.unhcr.org/refworld/country,LEGAL,,LEGISLATION,LBR,456d621e2,3ae6b5410,0.html Liberia Code of Criminal Procedure]<br />
<br />
*[http://dlxs2.library.cornell.edu/cgi/t/text/text-idx?c=liberian;cc=liberian;idno=lib100;view=toc Liberian Code of Laws Revised]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Liberia is a country on the west coast of Africa. Former African-American Slaves created and colonized Liberia in 1821. In 1980, Samuel Doe lead a successful military coup. Doe remained in power until 1989 when the first of Liberia’s two, post-coup, civil wars resulted in his removal from power. The country struggles to rebuild itself. Liberia currently has a dual system of statutory law based on Anglo-American common law for the modern sector and customary law based on unwritten tribal practices for the indigenous sector. However, despite laws being set out in the Liberian Constitution, there is a gap between these laws and their implementation. Liberia also accepts compulsory International Court of Justice jurisdiction with reservations.<br />
<br />
==Type of System==<br />
<br />
The Constitution and laws provide for an independent judiciary, however, the judicial system is corrupt and largely nonfunctional. Judges are subject to political, social, familial, and financial pressures. By law, magistrates must be lawyers, but most are not. Judges sometimes request bribes to try cases, release detainees from prison, or find defendants not guilty in criminal cases. Defense attorneys and prosecutors sometimes suggest that defendants pay a gratuity to appease or secure favorable rulings from judges, prosecutors, jurors and police officers.<br />
<br />
Furthermore, the juvenile justice system requires reform. Although there is a statutory mandate for the creation of a juvenile court in each of counties of the republic and lesser geographic units, only the county of Montserrado has a fully constituted juvenile court. The magisterial courts in other geographic areas are mandated to assume juvenile court jurisdiction whenever it becomes necessary. Juvenile detainees are also not always kept separate when detained.<br />
<br />
==Defendants' Rights==<br />
<br />
====Pre-Trial====<br />
<br />
In Article 21.f, the constitution requires warrants to make arrests and provides that detainees either be charged or released within 48 hours; however, warrants are not always based on sufficient evidence, and detainees are often held for more than 48 hours without charge, especially if they do not have the means to hire a lawyer. The law provides for bail for all offenses except rape, murder, armed robbery and treason.<br />
<br />
====Trial====<br />
<br />
Under the constitution, defendants have the right to be present at their trial, to consult with an attorney in a timely manner, and to have access to the government’s evidence relevant to their case. These rights, however, are not always observed. Defendants also enjoy a presumption of innocence and have the right to confront or question witnesses against them, present evidence and witnesses on their behalf, and to appeal adverse decisions. Many of these rights, however, are unavailable to defendants who cannot pay bribes or afford an attorney.<br />
<br />
Article 21.e prohibits torture and inhumane treatment of the accused and detained. However, some rural areas still practice trial by ordeal. Investigations are conducted but no actions are taken against those involved in human rights abuses.<br />
<br />
====Legal Aid System====<br />
<br />
While Article 21.i of the Constitution states that legal aid should be provided when required and some legal aid is in fact available, there is no effective system to provide public defenders in rural and remote areas. However, government officials have worked with international aid agencies to set up functional public defenders, raising the national total to approximately 17 qualified prosecutors and 13 public defenders.<br />
<br />
==Post-Conviction==<br />
<br />
An estimated 85% of prisoners are pre-trial detainees, on average 600 of whom are released within the year as a result of the Fast Track Court to reduce prison overcrowding. However, with the incarceration of new detainees, prisons remain overcrowded. In some cases, the length of pre-trial detention exceeds the maximum length of sentence that could be imposed for the crime.<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*Rule of law (World Bank Rule of Law Index rating): 14.2% in 2009 (indicates rank of country among all countries in the world). <br />
*Number of prisons: 15 (2009 - the largest is Monrovia Central Prison). Official prison capacity: 750 (August 2007 - the capacity of Monrovia Central Prison is 180). <br />
*Total prison population: 1,600 at July 2009 (U.N. Mission in Liberia - UNMIL). 97.3% (August 2007) are pre-trial detainees or remand prisoners.<br />
*Occupancy level based on official capacity: 136.3% (August 2007 - the occupancy level in Monrovia Central Prison was 316.1% on 12.2.2007 when the prison held 569 prisoners). <br />
<br />
{{Languages|Liberia}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Laos&diff=9103Laos2011-02-18T10:38:12Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ADDITIONAL RESOURCES</h2><br />
*[[Media:Laos Penal Code.pdf | Laos Penal Code]]<br />
*[[Media:Laos Law of Criminal Procedure.pdf | Laos Law of Criminal Procedure]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Laos, formally known as Lao People's Democratic Republic, comprises 16 provinces and 1 capital city, Vientiane. After centuries of gradual decline, Laos came under the control of Thailand from the 18th to the late 19th century, when it became part of French Indochina. In 1975, the communist Pathet Lao took control of the government ending a six-century-old monarchy and instituting a strict socialist regime closely aligned to Vietnam. A gradual return to private enterprise and the liberalization of foreign investment laws began in 1988, but Laos is still a communist country. The predominant religions are Theravada Buddhism and Animism. There are also small numbers of Christians and Muslims.<br />
<br />
The official and dominant language is Lao, with minorities speaking an assortment of Mon-Khmer, Hmong-Yao, and Tibeto-Burman languages. French, once common in government and commerce, has declined in usage, while knowledge of English has increased in recent years.<br />
<br />
==Type of System==<br />
<br />
The judicial branch of Laos consists of the People’s Supreme Court, the appellate courts, the People’s Provincial Courts and city courts, the People’s District Courts, and the military courts.<br />
<br />
According to Article 83 of the Law on Criminal Procedure, the court that has jurisdiction to decide a criminal case, at first instance, is the court where the incident occurred or where the defendant lives. In general, the people’s district, municipal, provincial, or city court has jurisdiction to decide cases as a court of first instance. The people’s district or municipal court has jurisdiction to decide criminal cases relating to minor offences.<br />
<br />
The legal system is based on traditional customs, French legal norms and procedures, and socialist practices.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution was promulgated on 14 August 1991 (last amended in 2003) and its Chapter IV is titled “Fundamental Rights and Obligations of Citizens”. Article 6 asserts that “''the State protects the freedom and democratic rights of the people which cannot be violated by anyone''”, and “a''ll acts of bureaucratism and harassment that can be detrimental to the people’s honor, physical well-being, lives, consciences and property are prohibited''”.<br />
<br />
The 2004 Law on Criminal Procedure and the 1990 Penal Law contain additional defendant’s rights.<br />
<br />
==Defendants' Rights==<br />
<br />
====Pre-Trial====<br />
<br />
According to Article 21 of the Law on Criminal Procedure, an accused or defendant has the right to be informed of and defend himself against the charges made against him; submit evidence and requests; make copies of the documents in the case file after investigation has been completed; retain and meet with a lawyer to contest the case; participate in court hearings; require the recusal of a judge, public prosecutor, interrogator, investigator, expert, or translator; complain against their acts or orders; make a final statement in court hearings as the last party; appeal against, or request the cancellation of, an order of an investigator, an interrogator, or a public prosecutor, or an instruction, order, or decision of the people’s courts.<br />
<br />
Article 42 of the Constitution states that Lao citizens are inviolable in their bodies, honor and houses. Beating or torture of the arrested person is, therefore, expressly prohibited. The Law on Criminal Procedure clearly says that “''in the taking of testimony from the accused person or defendant, or from individuals who participate in the proceedings, it is prohibited to use violence, force, threats, beating, or other unlawful measures''” (Article 17 LCP).<br />
<br />
Article 154 of the Penal Law provides a punishment for any civil servant engaging in the intentional excessive use of the authority provided by law, thereby adversely affecting the interests of the State, society, or the rights and interests of citizens. As well, Article 171 of the Penal Law states that any person using physical violence and torture, or other measures inconsistent with the law, against suspects or prisoners during arrest, trial or serving of sentence shall be punished by 3 months to 3 years of imprisonment or re-education without deprivation of liberty.<br />
<br />
It is prohibited to arrest, detain, or conduct any search without an order from a public prosecutor or from a people’s court, except in the case of flagrante delicto or urgency. The arrest order, along with its cause shall be declared to the person to be arrested.<br />
<br />
If, after taking testimony from a suspect, reliable evidence is found that he committed an offense for which the laws prescribe the penalty of deprivation of liberty, the head of the investigating organization or the public prosecutor may issue an order to detain the suspect for 48 hours to conduct further investigations. The investigating organization shall report in writing to the public prosecutor within 24 hours from the time of the detention. After receiving the request, the public prosecutor must decide within 24 hours whether to release or to remand the detainee (Article 61 Law on Criminal Procedure). When a deprivation of liberty goes beyond the period provided for in the laws or court decisions, the public prosecutor shall issue an order to release the person immediately. According to the Law on Criminal Procedure, any individual who arrests, detains, or conducts any search in contravention of the laws shall be subjected to criminal proceedings and shall be criminally liable.<br />
<br />
====Trial====<br />
<br />
Cases shall be conducted in open court proceedings except if otherwise provided by the laws. The court shall ensure that criminal proceedings are conducted correctly and objectively (Article 83 Constitution and Articles 6 and 13 law on Criminal Procedure). Defendants, who must be regarded as innocent and treated as such until they have been convicted, have the right to defend themselves with the assistance of a lawyer (Article 83 Constitution, Article 7 Law on Criminal Procedure).<br />
<br />
The trial commences with a screening procedure of the case performed by one judge of the court, and it does not include the presence of the accused or his lawyer. The president of the court then determines the time for the court hearing, if he deems that the investigation has been conducted correctly and completely.<br />
<br />
After a trial is declared open, the presiding judge of the judicial tribunal asks for the biography of the defendant, and asks that the defendant be informed of the order of prosecution and the charges.<br />
<br />
Evidence must include proof of the defendant’s guilt as well as of his innocence, and it should be evaluated based on a comprehensive and objective consideration of the case. If the evidence casts doubts on the accused’s guilt, such person must be released from charges (Articles 20 and 2 Law on Criminal Procedure).<br />
<br />
Lao Law on Criminal Procedure provides for the temporary detention (“remand”) of the defendant for the purpose of investigations, pending the trial. The detention shall not exceed 3 months, with the possibility to extend it for additional 3 months. Persons remanded shall be detained separately from prisoners and shall be in appropriate conditions as they are regarded as innocent. If the remand continues beyond that time and there is insufficient evidence to prosecute the accused, the public prosecutor shall immediately issue a release order.<br />
<br />
====Post-Conviction====<br />
<br />
The defendant, or his lawyer, have the right to request an appeal against an instruction, order, or decision of the court at first instance. The court of appeal not only considers the matters of appeal or objection, but it reviews the whole case in relation to all the defendants, not just the defendant before the court on appeal.. The appellate court has the right to reduce the penalty, but has no right to increase the penalty, except when there is an objection of the public prosecutor. The same parties have the right to request the Court of Cassation to review the conformity of an instruction, order, or decision to the laws.<br />
<br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2004 Prison Population: 4.020 with 69 detainees for 100,000 people, based on an estimated national population of 5.8 million at mid-2004. 1% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Laos}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Italy&diff=9102Italy2011-02-18T10:37:33Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF ITALY</h2><br />
*[[Media:Constitution of The Italian Republic.pdf | Constitution of The Italian Republic]] <br />
* [http://www.altalex.com/index.php?idnot=2011 Italian Criminal Procedure Code (Italian)]<br />
* [http://www.altalex.com/index.php?idnot=36653 Italian Penal Code (Italian)]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
<br />
Italy became a nation-state in 1861, when the regional states of the peninsula, along with Sardinia and Sicily, were united under King Victor Emmanuel II. An era of parliamentary government ended when Benito Mussolini established a Fascist dictatorship, in the early 1920s. His alliance with Nazi Germany led to Italy’s defeat in World War II. A democratic republic replaced the monarchy in 1946, and economic revival followed. Italy was a charter member of NATO and the European Economic Community (EEC). It has been at the forefront of European economic and political unification, joining the Economic and Monetary Union in 1999. Persistent problems include illegal immigration, organized crime, corruption, high unemployment, slow economic growth, and the low incomes and technical standards of southern Italy compared with the north.<br />
<br />
==Type of System==<br />
<br />
<br />
Traditionally, Italy is a civil law country. However, the implementation of the Criminal Procedure Code in 1989 dramatically moved the system toward common law models. The inquisitorial system has been infused with adversarial elements, making it a hybrid system.<br />
For what concerns criminal proceedings, the judicial branch is. Courts of first instance are the magistrate courts (Giudice di Pace), single-judge tribunals (Tribunale Monocratico), collegiate tribunals (Tribunale), the “Corte d’Assise”. Their subject matter jurisdiction depends on the seriousness of the crime. For example, the “Corte d’Assise”, which rules with the presence of two judges and six lay jurors, has full jurisdiction for crimes such as murder, attempted murder, terrorism, and criminal (mafia-like) associations. Courts of second instance are the single-judge tribunals for the decision of the magistrate courts, the court of appeals for decisions both of the single-judge and the collegiate tribunals, and the “Corte d’Assise d’Appello” for the decisions of the “Corte d’Assise”. The third and last instance court is the “Corte di Cassazione”, which can only evaluate the adherence of judicial decisions to the law. In exceptional cases, and without time limits, any person who has been convicted may present a request for revision to the court of appeal that has the territorial jurisdiction over the case.<br />
The Constitutional Court ensures the adherence of decisions of the whole judiciary branch to the principles of the Constitution.<br />
The Superior Council of the Magistrature is the regulating body of the discipline of all judges.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
<br />
The Constitution was approved in December 1947 and it entered into force on 1 January 1948. It is composed of four sections of which the first one is dedicated to the fundamental principles of the Republic. The Constitution recognizes the fundamental rights of each human being (Article 2), and among them, the equality of all citizens before the law (Article 3), the inviolability of the physical integrity of each person, as well as of everyone’s inviolable personal liberty (Article 13). The Constitution specifically states that only in exceptional cases the public security authorities may take provisional measures which must be reported within forty-eight hours to the judicial authorities. If the latter do not confirm in the next forty-eight hours, the measures are withdrawn and become null and void.<br />
Article 111 Constitution is the bedrock of the due process in Italy. It comprises fundamental guarantees for criminal proceedings, such as the right to notice of charges, the right to cross examine witnesses, and the principle that all judicial decisions must be motivated.<br />
<br />
The Code of Criminal Procedure entered into force in 1989, while the Penal Code entered into force in 1930 and it has amended many times.<br />
<br />
==Defendants' Rights==<br />
====Pre-Trial====<br />
<br />
<br />
The Criminal Procedure Code distinguishes between arrest (“arresto” - Articles 380-382) and detention of a person suspected of a crime (“fermo” - Article 384). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed. Arrests occur before the public prosecutor takes over the investigations, the police have the authority to make them. However, both procedures require the police to advise the public prosecutor within 24 hours. Within 48 hours (during which the prosecutor may interrogate the person at the presence of a defense counsel) the prosecutor must ask the preliminary hearing judge to validate the arrest/detention, otherwise the person must be released immediately.<br />
A suspect becomes a defendant only after the prosecutor has initiated formal criminal proceeding, formalizing the charges. Suspects and defendants have the same rights and guarantees during interrogation (e.g. mandatory presence of a defense counsel - Article 356 CPC).<br />
Moreover, the code gives police the authority to gather information from a person who is not even a suspect yet, and without the assistance of a counsel. However, as soon as the person reveals possible incriminating details, the police are required to interrupt the questioning and advise the person about his right to counsel (Article 351 CPC)<br />
When this is the only possible method left, the public prosecutor may require preliminary detention of a person suspected of a crime, if there are serious and grave evidence of guilt, and, alternatively, if there is fear that the investigations might be otherwise jeopardized, that the defendant would flee, or there is fear that the defendant will commit a violent crime similar to the one allegedly committed. The preliminary judge must confirm the request, and a suspect may be held from three months to 1 year, depending on the punishment prescribed for the alleged offense. The detention expires if, during the prescribed time, the judge for the preliminary hearing does not issue a decree binding the defendant over for the trial, or the accused pleas guilt (Articles 273 and followings CPC).<br />
The accused has the right to be assisted by a defense counsel, and the presence of an attorney is mandatory throughout criminal proceedings. Judges and courts may nominate a defense counsel (the state bears the expenses) for people who do not have a defense counsel or cannot afford to pay for him (Articles 96 - 108 CPC).<br />
The Criminal Procedure Code distinguishes between inspections and searches (Articles 244 - 252 CPC). Inspections are mainly observations of places (e.g. the crime scene), and their purpose is descriptive. They are authorized by a written order of the judicial authority, except in cases of flagrante delicto . Searches as well have to be authorized by the judicial authority except in an (exhaustive) list of cases provided by Article 352 CPC. Searches are carried out with the purpose of securing evidence or the accused for the criminal proceeding.<br />
Line ups and other identification procedures must be put in place according to Articles 211 - 217 Criminal Procedure Code.<br />
Article 191 CPC states that “''evidence acquired in violation of prohibitions established by law may not be used''”, and the court is competent to declare evidence unusable at any stage of the proceeding.<br />
<br />
Defense counsels are authorized to carry out their own investigations. The Criminal Procedure Code sets out specific requirements for these activities (Articles 391 bis - 391 nonies CPC).<br />
<br />
====Trial====<br />
<br />
<br />
Criminal proceedings commence with a notice of crime received from the police or the public prosecutor. This is the official start of the investigations, which may last for a period between six months and two years, depending on the crime. Unless particular cases, the defendant knows about the investigations only at the end of them when he is notified the charges of which he is accused, and the results of the investigations (Article 415 bis CPP). Starting from this moment, the defendant and his lawyer have the right to access the whole files concerning the investigations.<br />
Depending on the crime, there might be a preliminary hearing and then the trial, or immediately the trial. The assistance of a defense lawyer is mandatory, and he may present evidence, require witnesses, cross-examine witnesses, present oral arguments, and closing statements. He has always the last word during hearings (Articles 465 - 567 CPC).<br />
Defendant’s and their counsels have the right to propose appeals and file recourses to the Cassation Court, as court of last resort (except for the revision which is an exceptional procedure, and it is to be presented to the competent appeal court).<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*Overcrowded prison facilities represent one of the main issues affecting the correction system in Italy. According to the most recent data given by the Ministry of Justice, (http://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886) at the end of January 2011 there were 67.634 detainees, while the capacity of the prison system is 45.165 detainees. Due to this reason, while the law prescribes the separation of pre-trial detainees from the others, the first one are often placed with regular detainees, with all the problems related to this situation.<br />
<br />
{{Languages|Italy}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Indonesia&diff=9101Indonesia2011-02-18T10:36:59Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF INDONESIA</h2><br />
*[[Media:Indonesia Penal Code.pdf | Indonesia Penal Code]]<br />
*[[Media:Indonesia Law of Criminal Procedure.pdf | Indonesia Law of Criminal Procedure]]<br />
*[[Media:Indonesia Constitution.pdf | Indonesia Constitution]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Indonesia comprises 30 provinces, 2 special regions (Aceh and Yogyakarta), and 1 special capital city district (Jakarta Raya). Indonesia’s first free parliamentary election after decades of repressive rule took place in 1999. The country is now the world’s third-largest democracy, and home to the world’s largest Muslim population.<br />
<br />
Current issues include: alleviating poverty, improving education, preventing terrorism, consolidating democracy after four decades of authoritarianism, implementing economic and financial reforms, stemming corruption, and holding the military and police accountable for past human rights violations.<br />
<br />
==Type of System==<br />
<br />
The Supreme Court (Mahkamah Agung) is the final court of appeal, but only the Constitutional Court (Mahkamah Konstitusi) has the power of judicial review. Most disputes appear before the courts of general jurisdiction, with the court of first instance being the State Court (Pengadilan Negeri). There are about 250 State Courts throughout Indonesia, each with its own territorial jurisdiction. Appeals from the State Court are heard before the High Court (Pengadilan Tinggi), of which there are around 20 throughout Indonesia. The High Court is a district court of appeal. Appeals from the High Court and, in some instances from the State Court, may be made to the Supreme Court located in Jakarta.<br />
<br />
The Indonesian legal system is based on Roman-Dutch law, substantially modified by indigenous concepts and by new criminal procedures and election codes.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Constitution was approved on August 1945, subsequently abrogated in the ‘50s and restored in July 1959. The Constitution was last amended in 2002. The document grants few rights related to judicial proceedings, such as the independence of the judiciary, the equality before the law, the prohibition of ex post facto laws, and the right to life and to be free from punishments. The death penalty, however, is still practiced. Articles 28I and 28G Constitution grant the right to remain free from torture or inhuman and degrading treatment and state that this is a “''fundamental human rights that shall not be curtailed under any circumstance''.”<br />
<br />
The Law of Criminal Procedure was adopted in 1981, and it provides different rights to defendants in criminal proceedings.<br />
<br />
==Defendants' Rights==<br />
====Pre-Trial====<br />
<br />
A warrant is requested in case of arrest, except in cases of flagrante delicto. An arrest can be made only when a person is strongly presumed to have committed an offense based on sufficient preliminary evidence. The arrest cannot last more than 24 hours. At the time of arrest the arrestee has a right to notice of the charges. This right also applies during court procedures.<br />
<br />
During detention, a suspect or an accused has the right to contact his legal counsel, send and receive from him documents (Articles 57,62 Law of Criminal Procedure). He has also the right to be visited by a doctor, his family, and relatives.<br />
<br />
During examinations, the accused has the right to have a counsel and be free from any pressure whatsoever.<br />
<br />
Pre trial detention requires a warrant or an order from the investigator, prosecutor, or judge. The warrant can be executed when a person is strongly presumed to have committed an offense, when there is sufficient evidence and there is concern that this person will escape, damage, or destroy physical evidence and/or repeat the offense. The offenses that can justify such detention must be punishable with 5 years or more of imprisonment. The detention warrant is valid for 120 days at the most, depending on who ordered it first. The suspect, his family, or legal counsel may file objections to the detention with the investigator conducting the examination.<br />
<br />
====Trial====<br />
<br />
At the trial-phase, a notification to attend the hearing shall be made with a written summon which has to be received from the accused at least 3 days before the commencement of the trial. The prosecutor has to read his bill of indictment aloud, and the judge must ascertain that the accused has thoroughly understood.<br />
<br />
The rights to be assisted by a defense counsel and to file motions and raise objections, are granted in Articles 198 and 156 of the Law of Criminal Procedure.<br />
<br />
The testimony of the accused is considered a legal mean of proof, and leading questions cannot be used during his examination (Articles 148 and 166 Law of Criminal Procedure).<br />
<br />
A judge must not impose a penalty upon a person except when, with at least two legal means of proof, he has come to the conviction that an offense has truly occurred and that it is the accused who is guilty of committing it.<br />
<br />
====Post-Conviction====<br />
<br />
The accused, his counsel, and the public prosecutor have the right to appeal against a judgment of a court of first instance, except against a judgment of acquittal or a dismissal of all charges which relates to a matter of the inappropriate application of law, and a judgment under express procedures (Articles 67 and 233 Law of Criminal Procedure). The accused or the public prosecutor may also lodge a petition for cassation to the Supreme Court with regard to a judgment in a criminal case, rendered at last resort. <br />
<br />
Moreover, the Law of Criminal Procedure provides the possibility for a convicted person or his heirs to submit a request to the supreme court to reconsider a final judgment (except for an acquittal or dismissal of charges), on the following grounds: new circumstances which give rise to a strong presumption that if they would have been know at trial, the outcome would have been an acquittal/dismissal; the matter or the circumstances founding the judgment are evidently mutually contraddictory; or clear mistake of the judge or manifest error.<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 140.740 with 61 detainees for 100,000 people, based on an estimated national population of 230 million. 41.5% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Indonesia}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=France&diff=9100France2011-02-18T10:36:08Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 250px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">Additional Resources</h2> <br />
*[http://www.assemblee-nationale.fr/english/8ab.asp French Constitution (English)]<br />
*[[Media: French Penal Code.pdf |French Penal Code (English)]]<br />
|}<br />
<br />
<br />
==Background==<br />
The Republic of France has had a strong history from the start- it was one of the first European countries to transition from feudalism to nation-state <ref>www.state.gov/r/pa/ei/bgn</ref>. However, financially irresponsible monarchs soon drove the nation to a revolution in which egalitarianism and republicanism were favored over the previous estate system. It wasn’t until 1958 that France formed the Fifth Republic, a mixed presidential/parliamentary system that finally succeeded in balancing political power. Today, France is a leader within the European Union and a strong economic player on the global stage. However, current President Nicholas Sarkozy faces many challenges, including those of rapid immigration, high unemployment, and a slowing economy. The religion of France is 83-88% Roman Catholic and the national language is French. Although the majority of the population is native European, there exists a growing community of North African and Indochinese immigrants. <ref>www.state.gov/r/pa/ei/bgn</ref><br />
<br />
==Type of System==<br />
The French Republic has a civil law system in which an 800 article Code of Criminal Procedure dictates all issues of criminal procedure. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 205 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Due to the high degree of codification found in this procedural code, there is very little case law in France. Interpretations and decisions made by French courts concerning the Constitution or codes are not binding. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 206 ( 2d ed., Carolina Academic Press 2007)</ref> All French criminal cases are tried in one three courts: major felonies are tried in the Assize Ccourt, delicts are tried in correctional courts, and contraventions are tried in contravention courts. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 219 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Sources of Defendants’ Rights==<br />
The French Court of Cassation exercises the power of review according to a set of procedural guarantees that are based on the idea of the “rights of the defense”. These rights are regarded as in line with principles of justice and equity. Additionally, the French are guaranteed certain defense rights derived from the European Convention for the Protection of Human Rights and Fundamental Freedoms, which is binding in French courts. Due to recent decisions made by the French Court of Cassation, it is becoming evident that the European Convention has been increasingly more influential on French procedural law. <ref>1978 Bull. Crim. No. 346</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 206 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Pre-Trial Phase==<br />
<br />
French law does not use the same investigative concepts as the Anglo-American systems. Instead, French law recognizes four types of investigations and the evidence-gathering and arrest powers associated with each. The four types of French investigation are: investigation of “flagrant” offenses, “preliminary” investigations, identity checks, and formal judicial investigations performed by a magistrate. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 207 ( 2d ed., Carolina Academic Press 2007)</ref>. In the case of an identity check, a person may be detained for a maximum of four hours. In the case of an investigative arrest, a person may be detained for up to 48 hours. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 210 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
At the start of detention, the detainee must be made aware of the charges against him in a language that he/she can understand, the nature of the crime that is being investigated, and the period of detention that is allowed. The period of detention is 24 hours, with the possibility of a 48 hour extension. <ref>CPP Arts. 63-1</ref> Other rights that the defendant must be informed of are: the right to have his family, cohabitant, or employer informed of his detention, the right to be examined by a doctor (and a second time if the detention is extended to 48 hours <ref>CPP Art. 63-3</ref>, and the right to speak immediately and privately with legal counsel for up to 30 minutes. <ref>CPP Art. 63-2</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 216 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
According to French law, after the accused person has been formally charged with a crime the investigation is considered complete and there is no need for a pre-trial interrogation. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 217 ( 2d ed., Carolina Academic Press 2007)</ref> The detained has the right to immediate and private counsel with legal representation for at least 30 minutes. The legal counsel must be informed of the nature and date of the crime committed and is allowed to submit written observations in the detention record. However, the counsel is not allowed to be present during interrogation and does not have access to any police files or the detention record.<ref>CPP Art. 63-4)</ref> Additionally, French law does not require that the detained is informed of their right to silence and those detainees who do request legal counsel may be questioned before the arrival of their counsel. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 216 ( 2d ed., Carolina Academic Press 2007)</ref> There does not appear to be any formal procedures regarding identification procedures. <br />
<br />
==Court Procedures==<br />
<br />
French law does not specify the amount of time in which a detainee must be brought before a court.<ref>CPP Arts. 126 to 133</ref>. In most cases, the investigatory detention only lasts 48 hours, at which time the detainee is usually released, with or without a future court date. However, there is no limitation that says detainees must be released after 48 hours, in which case they may remain in custody longer. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 220 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
According to French law, in the event of a felony case the examining magistrate or the examining chamber is required to issue formal charges. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 223 ( 2d ed., Carolina Academic Press 2007)</ref> All other cases must be charged by the prosecutor or the civil party. Additionally, the French prosecutor has the ability to refuse to invoke criminal law or to charge less serious crimes than the evidence suggests. <ref>CPP Arts. 40, 40-1</ref> In this case, the victim still has the right to independently insist on the prosecution or investigation. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 224 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
The French equivalents to preliminary hearings are the reviews made by the examining magistrates (JDI) and the examining chamber. <ref>CPP Arts. 79, 181, 191 to 128</ref> If the JDI decides that the crime qualifies as a major felony the case is then sent to the Assize Court. Pre-trial motions may be made either during a judicial investigation or at the beginning of a trial. These motions must be submitted to the JDI or the examining chamber. The JDI or the examining chamber must comply with the motion, or issue a decree detailing why the motion has not been granted. <ref>CPP Arts. 82 to 82-2</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 225 ( 2d ed., Carolina Academic Press 2007)</ref> In terms of discovery, the defendant is entitled to review the full police dossier at certain stages of pre-trial procedure or right before the commencement of the trial. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 226 ( 2d ed., Carolina Academic Press 2007)</ref><br />
French criminal trials are oral and adversary in nature. <ref>CPP Arts. 306, 400, 427 (para. 2), 535, and 536</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)</ref> In the French criminal system, lay jurors are only found in the Assize Court which tries major felony cases. Delicts are tried in correctional court, a court that is comprised only of one or three professional judges and contraventions are tried in contravention courts before only one judge. Only recently have French criminal courts begun to accept such concepts as guilty pleas, plea bargains, and sentence leniency in return for bargains. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 226 ( 2d ed., Carolina Academic Press 2007)</ref><br />
Cases that follow the European Convention on Human Rights have granted defendants broader rights than those previously granted under French criminal procedure. Article 6.1 of the Convention further ensures that the defendant has the right to a fair trial. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)</ref> Additionally, Article 6.3.d gives the accused the right “to examine or have examined witnesses against him to obtain the attendance of witnesses on his behalf under the same conditions as witnesses against him”. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 227 ( 2d ed., Carolina Academic Press 2007)</ref> Cross examination is allowed, but is rarely practiced. In the event of an expert witness, that witness is usually appointed at either the trial court stage or at the pre-trial proceedings. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)</ref><br />
Defendants are awarded the right to either appointed or retained legal counsel in all cases. However, the majority of the trial is conducted by the judge and the lawyer plays a limited role. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)</ref> An individual who has been affected by a criminal offense may either initiate prosecution or join an existing prosecution. <ref>(CPP Arts. 2 to 2-21), Art. 338-1 et seq.)</ref> In both cases the victim is entitled to demand restitution for damages caused.<br />
French judges are appointed to their position and are almost always graduates of the national magistracy school. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 234 ( 2d ed., Carolina Academic Press 2007)</ref> Rulings of either a correctional or contravention court may be appealed to the Court of Appeals, while rulings made by the Assize Court must be made to the Appellate Assize Court. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 235 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
==Reference==<br />
<references/><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
*France has a total prison population of 59,655, with every 96 per every 100,000 people in prison.<br />
*Approximately 27.7% of the French prison population consists of pre-trial detainees and 1.1% is made up of juvenile prisoners.<br />
*France currently has 185 prison institutions with an official capacity of 47,672. The current occupancy level of the French prison system is 118.1%.<br />
<br />
__NoTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=England_and_Wales&diff=9098England and Wales2011-02-18T10:35:23Z<p>Spalomba: </p>
<hr />
<div> <br />
==Background==<br />
In 55 AD, Roman forces conquered what is today known as the United Kingdom of Great Britain and Ireland, signaling the start of a long history of incorporation and development. <ref> Country Profile available at www.state.gov/r/pa/ei/bgn</ref> The Norman conquest in 1066 further characterized the UK and instilled many important legal, political, and cultural institutions. For the next 700 years, the UK created an empire that spanned over one-fourth of the globe and that controlled key economic markets. Both World Wars, however, severely weakened the British Empire and the UK eventually lost control of colonies in Africa, Asia, and the Middle East. Today, those territories that remain under British control are part of the British Commonwealth of Nations, an association that includes countries such as Australia, New Zealand, and Canada. In addition, the current United Kingdom consists of Northern Ireland, Wales, England, and Scotland. The UK is a constitutional monarchy, a system in which the monarch is the head of state and the prime minister is the head of government. The current Conservative party prime minister, David Cameron, faces challenges such as integrating a growing immigrant population and reviving the economy. 92.1% of the UK’s population is of Scottish, English, Welsh, or Northern Irish descent. In recent decades, however, the UK has been experiencing a large influx of immigration from former colonies such as India and Pakistan. <ref> Country Profile available at www.state.gov/r/pa/ei/bgn</ref><br />
<br />
== Type of System==<br />
The legal system of England and Wales is based on common law. The United Kingdom does not have a formal constitution and the parliament has virtually limitless constitutional sovereignty. Parliament has worked to increase police privileges and decrease protection of accused persons, while the courts have acted to expand their common law powers through the interpretation of statutes. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Source of Defendants’ Rights==<br />
Although the United Kingdom does not have a written constitution, defendants’ rights are protected by multiple conventions, such as the European Convention on Human Rights (ECHR). The Human Right Act of 1998, for instance, entered into English law many human rights as detailed by the ECHR. Additionally, the Human Rights Act declares that any act committed by a public authority that violates the ECHR is unlawful. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> The Human Rights Act prohibits the use of torture or other degrading acts, prohibits discrimination, declares that everyone has a right to life and liberty, the right to a fair trial, the right of respected private home and family communication, and the right to freedom of expression. <ref>www.legislation.gov.uk</ref> Additionally, law under the European Union applies to the United Kingdom and in a case of conflict, EU law presides over UK law. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
==Pre-trial phase==<br />
Arrests in England and Wales are divided into two categories: those made with warrants and those made without warrants. Most present day arrests are made without warrants. After arrest, the arresting constable must decide whether there is enough evidence to charge the person or if they should be released. If the accused is not charged, they can only be detained for a maximum of 24 hours. <ref>PACE section 41</ref> However, arrests made under the Terrorism Acts of 2000 and 2006, detention is permitted to last up to 28 days. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 157 ( 2d ed., Carolina Academic Press 2007)</ref> Additionally, Article 5 of the Human Rights Act details that every detainee must be informed of the charges brought before them in a timely manner and in a language that they understand and that they must be brought before a judge and awarded a trial within a reasonable time period. <ref>www.legislation.gov.uk</ref> <br />
<br />
Under British common law, the police must justify each search and entry of a dwelling with either consent or a warrant. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 158 ( 2d ed., Carolina Academic Press 2007)</ref> Common law also dictates that in instances of interrogation, the person being interrogated is not required to answer questions posed to them by the police.<br />
<br />
==Court Procedures==<br />
At the time of an accused person’s arrest, police officials will complete a charge sheet which will include all of the details of the crime, and this sheet will include all of the necessary information for proceedings in the magistrates’ court. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 175 ( 2d ed., Carolina Academic Press 2007)</ref> After the arrest, the Crown Prosecution Service will decide whether or not the case should be prosecuted. The decision to prosecute is based on whether or not there is a realistic possibility of conviction and whether or not the case is in the public interest. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 173 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
In England and Wales, there are no preliminary hearings for summary offenses. For trials on indictment, there is a committal hearing before magistrates. There are two kinds of procedures for these committal hearings: the first does not include consideration of the evidence at all and the second includes documentary evidence that is submitted by the prosecution to the magistrates. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
Pre-trial motions are generally very rare and are limited to cases such as bail, legal aid for the trial, and orders that restrict pre-trial publicity. After the defendant is charged, he will be allowed to plea either guilty or not guilty. It will then be decided whether or not his case will be heard in a magistrates’ court or the Crown Court. This procedure is known as “plea before venue” and is detailed in Section 49 of the Criminal Procedure and Investigations Act of 1996. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
In terms of discovery, requirements concerning prosecution disclosure were recently turned into common law duties. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 177 ( 2d ed., Carolina Academic Press 2007)</ref> In circumstances of prosecution disclosure, the prosecutor must disclose information to the defense that might jeopardize the prosecution’s case. <ref>Criminal Procedure and Investigation Act 1996, section 3</ref> Trials in England and Wales are adversarial in nature, although the prosecution is required to present the case in a way that is fair and objective towards the defendant. All criminal trials take place in one of three courts: the magistrates’ courts, the Crown Court, or the youth courts. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 180 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
<br />
According to English common law and the European Convention on Human Rights, an accused person is entitled to a fair trial and a number of other rights. These rights include the right not to be subjected to proceedings which are in violation of court procedure, the right to an impartial tribunal, the right to a randomly selected jury <ref>Juries Act 1974</ref>, the right to counsel, the right to disclosure of materials by the prosecution, and the right to be present at the examination of witnesses. <ref>Magistrates’ Courts Act 1980, section 4(3)</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 180-182 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
English common law and Article 6.1 of the European Convention on Human Rights both adhere to the concept of a fair hearing based on the principle of equality between the prosecution and the defense. The defendant is also entitled to appoint their own legal representation, or if need be, the state will bear the cost of the defendant’s legal representation. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)</ref> Both the prosecution and the defense have the right to bring witnesses to the stand. Witnesses who refuse to answer questions without a reasonable excuse will be held in contempt of court. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)</ref> Expert witnesses may be called on behalf of either the prosecution or the defense and their testimony is given more weight than other witnesses due to their professional opinion. Additionally, expert witnesses are exempt from the prohibition on the admissibility of hearsay evidence. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 186 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
Following the publication of the UN’s Declaration of General Principles of Justice for the Victims of Crime and Abuse of Power, England and Wales published the Victim’s Charter. The Charter lays out considerations that the police and other court officials should keep in mind when interacting with victims of crimes. The Charter has even resulted in the retraining of some personnel on issues of sensitivity and dealing with trauma. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 190 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
In the magistrates’ court, the magistrate presides over the proceedings and issues a sentence after conviction. Magistrates are appointed by commissions that are determined by county and a magistrate’s jurisdiction is limited to that county in which they have been appointed. The two types of magistrates that exist in England and Wales are lay magistrates and district judges (or stipendiary magistrates). Lay magistrates are not legally qualified and are not paid, while district judges are qualified barristers or solicitors and are appointed by the Queen. <ref>Justice of the Peace Act 1997, s section 11,16</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 187-188 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==References==<br />
<references/><br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
<br />
*England and Wales has a total prison population of 84,145, with every 152 per 100,000 people in prison.<br />
*About 14.9% of England and Wales’ prison population consists of pre-trial detainees and about 1.9% is made up of juvenile prisoners.<br />
* England and Wales has 140 prison institutions with an official occupancy of 77,466 prisoners. The current prison occupancy level is at 107.2%. <br />
<br />
{{Languages|English}}<br />
<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Egypt&diff=9096Egypt2011-02-18T10:34:14Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LAWS OF EGYPT</h2><br />
*[http://www.egypt.gov.eg/english/laws/constitution/default.aspx| Egyptian Constitution]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Egypt is the 30th largest country in the world in terms of land size even though the vast majority of the 79 million citizens live in the fertile Nile Valley region.<br />
<br />
President Mohamed Hosni Mubarek has ruled Egypt since 1981. He assumed power after the assassination of Presidnet Mohammed Anwar El-Sadat.<br />
<br />
==Type of System==<br />
<br />
Egypt's criminal justice system is modeled after the [[France|French]] system. The central sources of law include the 1950 Code of Criminal Procedure. The 1971 Constitution, as interpreted by the Supreme Constitutional Court, supercedes all administrative and legislative laws regarding criminal law and procedure.<br />
<br />
Criminal matters may also be resolved in alternative venues such as the military courts (established in 1966) and administrative courts.<br />
<br />
In addition, Egypt's emergency provisions have been in force since President Mubarek declared a national emergency in 1981. Under these emergency provisions, the president has almost limitless power to search and seize, order secret surveillance, confiscate property and close businesses. State Security Courts oversee violations of these emergency orders.<br />
<br />
There are three main types of crimes in Egypt: violations, misdemeanors and felonies. The death penalty exists in Egypt for certain felonies however it is rarely handed down as a sentence.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The 1971 Constitution grants certain rights to the criminally accused. However, emergency laws which trump even the Constitution, have meant that these provisions have a limited effect.<br />
<br />
For instance, the Egyptian Constitution Articles 165-168 hold that<br />
<blockquote>Individual freedom is a natural right not subject to violation except in cases of [[In Flagrante Delicto| ''flagrante delicto'']]...[n]o person may be arrested, inspected, detained or have his freedom restricted in any way or be prevented from free movement except by an order necessitated by investigation and the preservation of public security.<ref> Constitution of Egypt Arts. 165-168</ref></blockquote><br />
<br />
==Defendants' Rights==<br />
====Pre-Trial====<br />
With the exception of [[In Flagrante Delicto|flagrante delicto]] cases, an arrest warrant or summons must be issued in order to effect an arrest.<br />
<br />
Statements that are compelled through physical or moral harm or threat of harm are inadmissible.<br />
<br />
There is no explicit Constitutional [[Right to Non Self-Incrimination| right to silence]] in Egypt, however the concept exists in court decisions as well as the Egyption Criminal Procedure Code.<br />
<br />
While the Egyptian Code provides for a preliminary hearing by a judge, in practice this hearing is typically conducted exclusively by a prosecutor who then decides whether to continue with prosecution. Once formally charged, the defendant is brought before a judge.<br />
<br />
====Trial====<br />
<br />
Defendants have the right to effective assistance of counsel at trial and possibly in some pre-trial hearings as well.<br />
<br />
Violations and misdemeanor cases are heard in a single-judge court while felonies are heard in three-judge courts. There are no jurys or lay factfinders in Egypt. In minor cases defendants may plead guilty or resolve conflicts through settlement agreements with the victims. Defendants have the [[Right to Compulsory Process]] and may call their own witnesses.<br />
<br />
Egyptian courts have recognized that the defendant has the [[Presumption of Innocence]] as well as the right to a fair trial under the [[Universal Declaration of Human Rights]]<br />
<br />
====Post-Conviction====<br />
<br />
A defendant must file appeal within 10 days of judgement.During these appeals the court may rehear witnesses and even reopen investigations. The prosecution may also appeal a trial court judgement of innocent, althorugh the court must be unanimous to reverse such a lower court holding. After the initial appeal, defendants may appeal to the Court of Cassation. This court rules only on matters of law.<br />
<br />
[[Ineffective Assistance of Counsel]] is a valid grounds for appeal for felony cases. The standard is whether the lawyer provided a "Genuine" defense as opposed to a "token" one. Other post-judgement appeals may be founded on conflicts of interest and inadequately expereinced counsel.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 64,378 prisoners including pre-trial detainees and remands.<br />
<br />
==Notes==<br />
<references/><br />
{{Languages|Egypt}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Brunei&diff=9095Brunei2011-02-18T10:33:21Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF BUNEI</h2><br />
*[[Media:Brunei Criminal Procedure Code.pdf | Brunei Criminal Procedure Code]]<br />
*[[Media:Brunei Penal Code.pdf | Brunei Penal Code]]<br />
*[[Media:Brunei Preventive Detention Act.pdf | Brunei Preventive Detention Act]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
==Background==<br />
<br />
Brunei is a constitutional sultanate, and it achieved independence from England in 1984. The same family has ruled the country for over six centuries.<br />
<br />
==Type of System==<br />
<br />
The Judicial branch is composed by Courts of Magistrate, Sharia Courts, and the High Court. The legal system is based on English common law, and for Muslims Sharia law supersedes civil law with regard to marriages and inheritance.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The 1959 Constitution does not grant any right to defendants in criminal proceedings, as well as any other right. The presence of a defense counsel is not envisioned throughout the entire criminal proceeding, from the investigation phase to the sentencing (Chapter XIX of the Criminal Procedure Code is titled "Trials without the Aid of Assessors”). The system is then based on the defendant’s self representation and participation to the trial.<br />
As well, neither the privilege against self-incrimination, nor the presumption of innocence are granted.<br />
<br />
Some safeguards are still found in the Brunei Criminal Procedure Code, such as the right to confront accusers, and the right to notice of charges.<br />
<br />
Among the most important international human rights instruments, Brunei has ratified only the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discriminations Against Women (CEDAW).<br />
<br />
==Defendants' Rights==<br />
<br />
Under the Criminal Procedure Code a warrant is required to arrest a person. Nonetheless, the cases when an arrest can be made without a warrant are so broad that almost nullify the previous rule (Sections 19, 28, 33 of the Criminal Code).<br />
<br />
The preventive detention and the pre-trial detention do not require a warrant to be executed, if there are reasons to believe that a person has been associated with activities of a criminal nature, and he has to be detained in the interests of public safety, peace and good order. The preventive detention can last up to 3 years, the pre-trial detention can be extended up to 14 days if investigative reasons exist.<br />
<br />
Any statement made by any person, including a person in the custody of a police officer, made before or after that person is charged and whether in the course of a police investigation or not is admissible as evidence. If that person tenders himself as a witness, he can be cross examined. Courts have to verify if the statement is voluntary questioning both the Prosecutor and the defendant.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 423 people for a population of 400,000. This means 106 detainees for 100,000 people, of which 8.3% in pre-trial detention.<br />
<br />
{{Languages|Brunei}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Congo,_Democratic_Republic_of_the&diff=9094Congo, Democratic Republic of the2011-02-18T10:32:33Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2> <br />
* ''Coming Soon!''<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2> <br />
*[http://caselaw.ihrda.org African Human Rights Case Law Analyser]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2> <br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
Established as a Belgian colony in 1908, the Republic of the Congo gained its independence in 1960, but its early years were marred by political and social instability. Col. Joseph Mobutu seized power and declared himself president in a November 1965 and named the country Zaire. After 32 years, ethnic strife and civil war, touched off by a massive inflow of refugees in 1994 from fighting in Rwanda and Burundi, led in May 1997 to the toppling of the Mobutu regime by a rebellion fronted by Laurent Kabila. He renamed the country the Democratic Republic of the Congo (DRC), but in August 1998 his regime was itself challenged by a renewed civil war. Laurent Kabila was assassinated in January 2001 and his son, Joseph Kabila, was named head of state. After all the warring parties had signed the Pretoria Accord, a transitional government held a successful constitutional referendum in December 2005 and elections for the presidency, National Assembly, and provincial legislatures in 2006. Kabila was inaugurated president in December 2006. <br />
<br />
==Type of System==<br />
<br />
The DRC is a civil law country and as such the main provisions of its private law can be ultimately traced back to the 1804 Napoleonic Civil Code. More specifically, the Congolese legal system is primarily based on Belgian law. Customary or tribal law is another basis of the legal system of the DRC, where the majority of people live in rural areas. Tribal law regulates both personal status laws (like marriage and divorce laws) and property rights.<br />
Overall, notwithstanding significant policies and legal reforms the government has formulated and adopted, factors such as the lack of infrastructure, weak institutional capacity, and corruption undermine the effectiveness, stability and predictability of the legal system. <br />
<br />
==Criminal Law==<br />
<br />
Congolese criminal law is mainly set out in the 1941 Penal Code. Unlike Belgian and French law, Congolese law does not differentiate between felonies (crimes), misdemeanours (délits), and contraventions (contraventions). Congolese law refers to violations of the criminal or penal law, whether ordinary or military, as infraction (infraction).<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
There are several fundamental principles of criminal procedure, some of which are set out in the Constitution. These principles include guarantees of due process during arrest and detention, the prohibition of retroactive laws, the presumption of innocence, and the right to a fair trial.<br />
<br />
==Defendants' Rights==<br />
<br />
Detainees must appear before a magistrate within 48 hours. Authorities must inform those arrested of their rights and the reason for their arrest, and may not arrest a family member instead of the individual being sought. They may not arrest individuals for non-felony offenses, such as debt and civil offenses. Authorities must allow arrested individuals to contact their families and consult with attorneys.<br />
<br />
==Legal Aid System==<br />
<br />
A legal aid system is in place since 1979, but is not state-sponsored. A law graduate has to complete a 2 year internship in a law firm. During these 2 years practice as an intern-lawyer, opportunity to become a “défenseur judiciaire” (literally: legal defender), that-is-to-say a legal aid lawyer. The défenseur judiciaire can represent pro-bono cases only before at the TGI (Tribunal de Grande Instance) jurisdictions. The Bar Association holds free consultations for indigents seeking legal counsel and some NGOs are also active in DRC.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*Prison population total (including pre-trial detainees / remand prisoners) - c.30,000 at January 2004 (criminal justice experts, D.R.Congo)<br />
*Prison population rate (per 100,000 of national population) - c.57 based on an estimated national population of 52.8 million at mid-2003.<br />
Pre-trial detainees / remand prisoners (percentage of prison population) - A 2006 United Nations report found that 70-80 percent of prisoners detained nationwide were in pre-trial detention.<br />
*Female prisoners (percentage of prison population) 3.2% (January 2004 - of prisoners in the main prison in Kinshasa)<br />
*Number of establishments / institutions 213 in 2007 but fewer than 100 are functioning, according to the director of CPRK, which is the central prison in the capital Kinshasa)<br />
*Occupancy level (based on official capacity) July 2007 - 270.5% in the main prison in Kinshasa, there being 4,057 prisoners and an official capacity of 1,500<br />
<br />
{{Languages|Democratic Republic of Congo}} <br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=China&diff=9093China2011-02-18T10:31:41Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CHINESE CRIMINAL DEFENSE MANUAL</h2><br />
# [[China Criminal Defense Manual - Pretrial Preparation | Pretrial Preparation]] (Investigation and Trial Prosecution)<br />
# [[China Criminal Defense Manual - Developing a Defense for Trial | Developing a Defense for Trial]] <br />
# [[China Criminal Defense Manual - Questioning the Witness | Questioning the Witness]] <br />
# [[China Criminal Defense Manual - Special Considerations in Juvenile Cases | Special Considerations in Juvenile Cases]] <br />
# [[China Criminal Defense Manual - Cases Involving a Possible Death Penalty | Cases Involving a Possible Death Penalty]]<br />
# [[China Criminal Defense Manual - Motions | Motions]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[China - Law on Lawyers and Legal Representation]]<br />
* [[Constitution of the People's Republic of China]]<br />
* [[Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases]]<br />
* [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Chinese-English Legal Lexicon]]<br />
* [[Chinese Law Primer]]<br />
* [[Media:China Country Summary Card.pdf | China Country Summary Card]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Chinese lawyers]<br />
|}<br />
<br />
<br />
<br />
==Background==<br />
<br />
Chinese civilization, dating back 3,500 years, has long been one of the world’s most innovative and influential societies. <ref> Background Notes available at www.state.gov/r/pa/ei/bgn</ref> The last Chinese dynasty, the Qing dynasty, was established in 1644 and was characterized by great expansionism, military prowess, and highly organized bureaucracy. However, the Qing dynasty was eventually forced to abdicate and a non-dynastic republic was erected in its place. This republic was plagued by a civil war fought between the Kuomintang (KMT) nationalists and the Chinese Communist Party (CCP), with ultimate victory being awarded to the CCP. In 1949, the CCP established the modern day People’s Republic of China led by Mao Zedong. China under Mao experienced extreme economic overhauls, as well as famine, poverty, and a severe cultural revolution. It wasn’t until Mao’s successor, Deng Xiaoping, reformed the communist agenda that China began to experience greater economic development and social improvements. Today, China is the world’s second largest economy after the United States and is expected to rise to first place within ten years. <ref>www.bbc.co.uk/news/business</ref> Despite these advancements though, China still commits human rights violations by way of repressing political freedoms. 91.5% of the Chinese population is of Han descent and 70% of the population speaks the Mandarin dialect. Although the Chinese government affirms “freedom of religion”, only five religions are officially sanctioned. Nevertheless, about 31.4% of Chinese are practitioners of some religion. <ref>Background Notes available at www.state.gov/r/pa/ei/bgn</ref><br />
<br />
==Type of system==<br />
<br />
The Chinese court system is based on a civil law system that was modeled off of Soviet legal principles. All Chinese laws are organized in a Criminal Code that contains all of the regulations and rules that are used to interpret criminal law. <br />
<br />
The court system in China has four levels. The courts, in descending order are: the Supreme People’s Court, the Higher People’s Courts, the Intermediate People’s Courts, and the Basic People’s Courts. The People’s Supreme Court is solely supervisory in function and oversees the lower courts. The Higher People’s Court conducts hearings for major civil and criminal cases that are located within a province, autonomous region, or municipality directly under the authority of the government. The Higher People’s Court is also allowed to retry cases that have been appealed by the Intermediate People’s Court. The Intermediate People’s Court tries cases that involve counterrevolutionary crimes, life imprisonments, the death penalty, and situations involving foreigners. <br />
<br />
In Chinese criminal cases, defendants do not have the right to a jury trial. In the situation of a homicide case, however, the verdict is delivered by a commission of the president, vice presidents, division chiefs, and other leading authorities of the court. This procedure is of particular irritation to lawyers who point out that those deciding the case are the people least familiar with the case. <br />
<br />
==Sources of Defendants’ rights==<br />
<br />
The Chinese Constitution, which was amended in 2003, does not have legal authority in court decisions. Nevertheless, Article 37 of the Constitution states that the freedom of Chinese citizens is absolute, that no one may be arrested without the approval of a public security office, and that no one may be unlawfully detained. Since the Chinese Constitution is not self-executing though, these rights do not necessarily protect citizens. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 93 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Pre-trial phase==<br />
<br />
Once a criminal case has been filed against an individual, they are required to make a compelled appearance, or ju chuan. In this case, the defendant must report to the police station where they may be required to stay for up to 12 hours of questioning. During this time, the defendant does not have the right to legal counsel or communication with anyone. <ref>Criminal Procedure Law Articles 90-96</ref> Only after the questioning has been completed is the defendant informed of his right to legal counsel. <ref>Criminal Procedure Law Article 96</ref> Despite this, the lawyer is still not entitled to help the suspect prepare a defense case, but may only provide legal support and advice. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
All Chinese suspects must be interrogated within 12 hours of their arrest or detention. Before posing any questions to the suspect, the police are required to ask him whether or not he has committed a crime and the circumstances of the situation. <ref>Criminal Procedure Law Article 93</ref> Chinese law additionally prohibits the use of torture or other methods of obtaining evidence, but does not exempt evidence that has been illegally obtained. <ref>Criminal Procedure Law Article 43</ref> This means that confessions obtained under torture or duress can be used in court even though torture itself is technically not legal. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Court procedures==<br />
<br />
Chinese criminal procedure is divided into three stages, all of which are exclusively separate from each other. These stages are the investigation, the prosecution, and the trial. The investigation stage of criminal cases is conducted by the police, who at this time detain suspects, direct interrogations, gather evidence, and interview witnesses. During the investigation stage lawyers’ roles are severely limited, but Criminal Procedure Law states that lawyers are entitled to provide their clients with legal consultation, lodge petitions and complaints, and apply for bail on their clients’ behalf. <ref>Criminal Procedure Law Article 96</ref><br />
<br />
After the investigation stage has been completed, the prosecution procedure begins. At this time, the investigators submit to the Procuratorate the evidence that they have gathered in order for the Procuratorate to decide whether the circumstances of the crime are clear and the evidence reliable. <ref>Criminal Procedure Law Article 137</ref> During this stage, the defendant is entitled to legal counsel. However, few lawyers are assigned to the cases of indigent persons and often do not see the point in accessing their clients at such an early stage. <br />
<br />
Beginning with the 1996 reforms to the Chinese Criminal Procedure Law, Chinese trials have become increasingly adversarial in nature. These reforms guarantee greater rights to legal representation and include other measures intended to protect the right to a fair trial and to strengthen the role of lawyers. <ref>Criminal Procedure Law Articles 36, 96, 150, and 12</ref> Despite these improvements, Chinese lawyers still are not active players in trials. <br />
<br />
All cases must go to trial even if the defendant has plead guilty. Although Chinese law dictates that lawyers must be assigned cases at least ten days prior to the trial <ref>Criminal Procedure Law Article 151</ref>, they are often not appointed cases until two to three days before the trial begins. In addition, the court has the right to subpoena witnesses to be questioned and cross-examined by both the prosecution and the defense. In reality though, witness statements are merely read aloud in court, depriving either the prosecution or the defense of the opportunity of cross-examination. The Chinese standard of proof states that “the facts are clear and the evidence is reliable and sufficient”. <ref>Criminal Procedure Law Article 162</ref> Thus the accused person may be found innocent outright or by reason of insufficient evidence. <br />
<br />
Chinese defendants do not have the right to remain silent. At both the pre-trial and trial stage they are required to answer all questions posed to them. Under the Criminal Procedure Law, defendants who either confess to their crimes or truthfully report their actions will be rewarded and treated more leniently by the court. <ref>Criminal Procedure Law Article 67,68</ref> Thus, lawyers often ask their clients questions that are fairly prosecutorial in nature because they believe that if they confess to the crime they will receive a more favorable sentence. <br />
<br />
Chinese courts are not limited to making decisions based solely on the charges filed. For example, even if the defendant is accused only of intentional injury a court may find the defendant guilty of murder if it believes that the defendant had the explicit intent to kill. Thus, lawyers must be prepared for all possible outcomes in a criminal case. <br />
<br />
China guarantees the right to legal counsel, but most of the Chinese population is far too poor to hire sufficient legal aid. According to law though, only those who are juveniles, blind, deaf, and/or mute, and those facing the death penalty have the right to appointed counsel. Those who are financially unable to secure counsel are appointed representation based on a selective basis. Lawyers are rarely willing to represent defendants, however, as the pay is notoriously low, effective counsel is often difficult to achieve, criminal defense is regarded as risky activity, and criminal defense lawyers are not respected among within the legal community. <br />
<br />
The Chinese law only guarantees lawyers to limited rights of discovery at the prosecution stage. <ref>Criminal Procedure Law Article 36</ref> Discovery includes the right to judicial documents, but not the defendant’s statement, the statements of witnesses, and all other physical evidence. <br />
<br />
Lawyers often play a small role in Chinese trials. Lawyers’ roles in Chinese trials are usually limited to asking for more lenient sentences and suggesting mitigating factors to the court. Lawyers rarely dispute anything that the prosecutor alleges against the defendant or to actually defend the client. Finally, lawyers are rarely allowed by police to collect evidence or to conduct any other activities that would help him develop a solid defense case. <br />
<br />
Chinese judges often intentionally limit the role of the lawyer at trial. These judges see the lawyers as trivial and thus seek to make their work seem insignificant. For example, it is common for judges to refuse to allow a defense lawyer to present evidence or other opinions. They claim instead that that such information is inapplicable to the case at hand.<br />
<br />
==References==<br />
<br />
<references/><br />
<br />
''This page contains IBJ's English language materials for legal aid lawyers in China. For Chinese language materials, please go to [http://chinadefensewiki.ibj.org chinadefensewiki.ibj.org]''<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*The PRC reports that it has a total prison population of 1,620,000, but the US State Department estimates the population to be at approximately 2,500,000 <br />
*For every 100,000 Chinese citizens, the PRC reports that there are 120 prisoners. However, the US State Department estimates that 186 is a more accurate number <br />
*China’s prison population consists of about 1.4% juvenile prisoners and approximately 100,000 pre-trial detainees (according to an estimate made by an East Asian criminal justice expert)<br />
*The Chinese Ministry of Justice reports that the PRC has 700 prison facilities. The US State Department additionally reports that China has 30 juvenile prisons and the Supreme People’s Procuratorate declares that China has 340 re-education-through-labor camps <br />
*Official prison capacity of re-education-through-labor camps is reported by the Supreme People’s Procuratorate to be 300,000. The occupancy level of these camps is approximated to be 87%<br />
<br />
<br />
{{Languages|China}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Brunei&diff=9092Brunei2011-02-18T10:30:52Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF BUNEI</h2><br />
*[[Media:Brunei Criminal Procedure Code.pdf | Brunei Criminal Procedure Code]]<br />
*[[Media:Brunei Penal Code.pdf | Brunei Penal Code]]<br />
*[[Media:Brunei Preventive Detention Act.pdf | Brunei Preventive Detention Act]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
==Background==<br />
<br />
Brunei is a constitutional sultanate, and it achieved independence from England in 1984. The same family has ruled the country for over six centuries.<br />
<br />
==Type of System==<br />
<br />
The Judicial branch is composed by Courts of Magistrate, Sharia Courts, and the High Court. The legal system is based on English common law, and for Muslims Sharia law supersedes civil law with regard to marriages and inheritance.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The 1959 Constitution does not grant any right to defendants in criminal proceedings, as well as any other right. The presence of a defense counsel is not envisioned throughout the entire criminal proceeding, from the investigation phase to the sentencing (Chapter XIX of the Criminal Procedure Code is titled "Trials without the Aid of Assessors”). The system is then based on the defendant’s self representation and participation to the trial.<br />
As well, neither the privilege against self-incrimination, nor the presumption of innocence are granted.<br />
<br />
Some safeguards are still found in the Brunei Criminal Procedure Code, such as the right to confront accusers, and the right to notice of charges.<br />
<br />
Among the most important international human rights instruments, Brunei has ratified only the Convention on the Rights of the Child and the Convention on the Elimination of all Forms of Discriminations Against Women (CEDAW).<br />
<br />
==Defendant's Rights==<br />
<br />
Under the Criminal Procedure Code a warrant is required to arrest a person. Nonetheless, the cases when an arrest can be made without a warrant are so broad that almost nullify the previous rule (Sections 19, 28, 33 of the Criminal Code).<br />
<br />
The preventive detention and the pre-trial detention do not require a warrant to be executed, if there are reasons to believe that a person has been associated with activities of a criminal nature, and he has to be detained in the interests of public safety, peace and good order. The preventive detention can last up to 3 years, the pre-trial detention can be extended up to 14 days if investigative reasons exist.<br />
<br />
Any statement made by any person, including a person in the custody of a police officer, made before or after that person is charged and whether in the course of a police investigation or not is admissible as evidence. If that person tenders himself as a witness, he can be cross examined. Courts have to verify if the statement is voluntary questioning both the Prosecutor and the defendant.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 423 people for a population of 400,000. This means 106 detainees for 100,000 people, of which 8.3% in pre-trial detention.<br />
<br />
{{Languages|Brunei}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Argentina&diff=9090Argentina2011-02-18T10:30:13Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 250px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">Additional Resources</h2><br />
*[http://wings.buffalo.edu/law/bclc/argind.htm Argentina Penal Procedural Code (Spanish)]<br />
<br />
*[http://www.legislaw.com.ar/legis/penal.htm Argentina Penal Code (Spanish)]<br />
<br />
|}<br />
<br />
==Background==<br />
<br />
The Argentine Republic is divided into 23 provinces and its capitol is located at Buenos Aires. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factboook</ref> In 1816, Argentina along with Uruguay, Paraguay, and Bolivia declared independence from the Spanish Empire. From independence until the mid-20th century, Argentina enjoyed a relatively peaceful period characterized by Péronist populism and steady immigration. However, in 1976 democracy fell to a military dictatorship that retained power through the use of political violence, kidnappings, and other oppressive tactics. After democracy returned in 1983, Argentina continued to suffer economic decline and hyperinflation well into the early 2000s. 97% of the Argentine population is of Italian or Spanish descent, with 92% of the population identifying as Roman Catholic. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factboook</ref> <br />
<br />
==Type of System==<br />
<br />
The legal system in Argentina is a mixed system of US and French law. The sources of all Argentine laws stem from the rules of criminal procedures which are compiled in the Code of Criminal Procedure. This code is used by the national criminal courts in Buenos Aires when prosecuting both non-federal and federal criminal offenses. According to the Argentine Constitution, state courts have the final say on all interpretations of state codes of criminal procedure. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 3 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Sources of Defendants' Rights==<br />
<br />
The Argentine National Constitution defends the rights of the individual from actions taken by either federal or provincial governments. However, these constitutional rights that constrain the police are subject to rulings made by the Supreme Court, which may make decisions with a large degree of authority. Additionally, Argentina has ratified the American Convention on Human Rights, a convention that has become significant in establishing standards of due process.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 4, 7 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Pre-Trial Phase==<br />
<br />
In Article 18, the National Constitution states that “no one should be arrested except upon a written order issued by a competent authority”. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 7 ( 2d ed., Carolina Academic Press 2007)</ref> Whereas the Constitution provides strong protection against arbitrary arrests, the rules of criminal procedure state that the police have the authority to stop, detain, or arrest anyone without a written order as long as that person is exhibiting guilty behavior. Additionally, Article 18 states that private residences, personal communications, and other private documents cannot be searched, seized, or violated without a statute that details when violations should be permitted. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 11 ( 2d ed., Carolina Academic Press 2007)</ref> The same article guarantees that nobody should be made to testify against themselves. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 27 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==Court Procedures==<br />
<br />
In Argentina, every investigation is the responsibility of the investigative magistrate who can assign the responsibility to a prosecutor.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 34 ( 2d ed., Carolina Academic Press 2007)</ref> The detention of the accused begins the process of arraignment and a judicial interrogation takes place in order to discern the accused person’s version of the event. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 35 ( 2d ed., Carolina Academic Press 2007)</ref> The Code of Criminal Procedure also states that the accused/detained must be informed of his right to legal counsel before the interrogation begins. Only the prosecutor and the defense counsel may attend the hearing at which the accused is interrogated. At no time can the accused be physically made to speak and at no time is he under oath.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 36 ( 2d ed., Carolina Academic Press 2007)</ref> In the event that the accused is kept in incommunicado detention by the police, the detention cannot exceed six hours and the accused must be submitted for a medical evaluation after the detention ends. If the investigative magistrate authorizes the detention, the detention may last forty-eight hours with a possible twenty-four hour extension.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 37 ( 2d ed., Carolina Academic Press 2007)</ref><br />
Once the judicial interrogation has taken place, the investigative magistrate has ten days to decide whether there is sufficient evidence that a crime has been committed and whether the accused participated in the crime. If the evidence is insufficient enough to implicate the defendant, he must be released.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 40 ( 2d ed., Carolina Academic Press 2007)</ref> In Argentine courts, the granting of bail depends not on the evidence against the defendant, but on the seriousness of the crime committed. However, the granting of bail does not change the course of the investigation or trial in any way.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 41 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
In the event that a trial severely departs from Argentine criminal procedure (such as an investigative magistrate forcing a defendant to testify under oath), any party may request that the offending act be held null and void and stricken from the record.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 42 ( 2d ed., Carolina Academic Press 2007)</ref> In terms of discovery, all parties are given the right to access police files and reports as soon as the judicial interrogation has finished. However, Argentine procedural code also dictates that the investigative magistrate may declare that pre-trial proceedings may not be disclosed during the first ten days of the investigation.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 43 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Through the adoption of the Code of Criminal Procedure in 1993, Argentina introduced the practice of concentrated and oral trial conducted by a panel of three judges. Before the introduction of this reform, the federal criminal proceedings in Argentina consisted mainly of written motions and intermittent interlocutory decisions. The nature of Argentine trials remains largely inquisitive in the sense that the trial courts have the ability to request additional evidence if that evidence will serve to further clarify the case.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 45 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
The defendant is not required to speak under oath and his refusal to speak may not be commented on at trial. The defendant may not be charged with perjury for lying during interrogation; however, the defendant’s dishonesty may be used to impeach his character, which can affect the final judgment. The defendant also has the right to call any witnesses to his defense and to cross-examine that witness.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 46-47 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
The Argentine Constitution entitles every defendant the right to legal representation of their choice, and if a defendant is not able to acquire representation, the State will assign them a public defender. Prosecutors in Argentina are not adversarial in nature, but instead act similarly to the judiciary. In this sense, they serve more as neutral decision makers.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 47-48 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
At both the pre-trial and trial stages, expert witnesses are selected from a list of official expert witnesses. The prosecutor, defendant, or the victim may hire their own expert witness, but the witness must be paid for by the appointing party.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 48 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
The victim of a crime has the right under the Argentine Constitution to retain an attorney in order to prosecute an accused person. In this situation, there will be a “victim prosecutor” and a prosecutor, in which case the prosecutor will have technical responsibility for the case but the victim prosecutor will lead the actual prosecution. The victim may also seek compensation or awards for damages, thus making the victim a “civil party” within the criminal proceedings.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 49-50 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
Both state and federal level judges are non-elected officials who must serve for life. These judges are appointed by the Argentine executive branch and are approved by either the Senate or the state legislature, depending on whether they are state or federal level judges. A panel of three judges presides over each trial and there is no jury. Both the Argentine Constitution and the 1994 amendment to the Code of Criminal Procedure state that trial by jury is ideal and desirable. However, the Argentine Congress has yet to enforce this amendment.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 48 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
The defendant is able to appeal a ruling of the investigative magistrate, but only against those that are indicated by law (such as rulings of dismissals). Appeals that are made against rulings of an investigative magistrate must be brought before an intermediate court of appeals within three days, while appeals against a trial court must be brought before the Criminal Court of Cassation within ten days. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 50-15 ( 2d ed., Carolina Academic Press 2007)</ref> Finally, Argentine Criminal Code specifies that a defendant is only permitted to appeal a conviction if the sentence exceeds three years, if there is a suspension of practicing a certain profession for more than five years, or if a fine exceeding a certain amount is involved.<ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 52 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==References==<br />
<references/><br />
<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
*The total prison population of Argentina is 160,611 with 151 per every 100,000 people in prison<br />
*Approximately 57.6% of the Argentine prison population is made up of pre-trial detainees and 7.9% is comprised of juvenile prisoners<br />
*Argentina currently has 228 institutions with an official capacity of 53,044 prisoners. The current occupancy level of Argentine prisons is 96.1% <br />
<br />
{{Languages|South Africa}}<br />
<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9083Swaziland2011-02-17T14:18:18Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
Swaziland is an absolute hereditary monarchy (Kingdom of Swaziland is the conventional long name of the country). King Mswati III has ruled since 25 April 1986. The Head of the Government, appointed by the monarch from among the elected members of the House of Assembly, is Prime Minister Barnabas Sibusiso Dlamini (since 16 October 2008). The Cabinet is recommended by the prime minister and confirmed by the monarch.<br />
Swaziland gained its independency form Britain on 6 September 1968. Student and labor unrest during the 1990s pressured King Mswati to allow political reform and greater democracy. A constitution came into effect in 2006, but political parties remain banned. The African United Democratic Party tried unsuccessfully to register as an official political party in 2006. Talks over the constitution broke down between the government and progressive groups in 2007.<br />
According to 2006 data, 69% of the population lives below the poverty line.<br />
According to the UNDP, the Human Development Index (HDI) for 2007 for Swaziland is 0.572, which gives the country a rank of 142 out of 182 countries with data. <br />
Swaziland acceded the ICCPR on 26 Mar 2004.<br />
==Type of System==<br />
Swaziland operates under a dual legal system: Roman-Dutch common law (under which the Constitutional Courts operate) and customary law. <br />
The system based on Roman-Dutch law consists of the Supreme Court, the High Court, and magistrate courts. The Supreme Court, which is composed of foreign-born judges and two Swazis, has appellate and supervisory jurisdiction over the High Court and magistrate courts.<br />
Neither the Supreme Court nor the High Court has jurisdiction in matters concerning the office of the king or queen mother, the regency, the Swazi National Council, or the traditional regiments system, all of which are governed by traditional laws and customs.<br />
The traditional courts follow traditional laws and customs and serve the chiefs appointed by the king, and have limited civil and criminal jurisdiction. They are authorized to impose fines of up to 100 emalangeni ($13.50) and prison sentences of up to 12 months, and their decisions can be appealed to the High Court.<br />
In the customary courts, the legal representation of accused persons is not possible and evidence cannot be presented. Only the most serious cases are considered for transfer to the magistrate courts.<br />
Although the law states that the prosecutor presides over the allocation of cases to the appropriate courts, often the decision is made by the police officers at the time of arrest.<br />
Swaziland does not have dedicated minors’ courts. Only the High Court has a dedicated section that facilitates all matters involving minors. <br />
==Sources of Defendant’s Rights==<br />
Swaziland does not have a single code containing its laws. Instead the laws of the country are drawn from: the Constitution, legislation, common law, judicial precedent, customary law, authoritative texts, and decrees.<br />
Chapter III of the Constitution is titled “Protection and Promotion of Fundamental Rights and Freedoms” (articles 14-39), and it provides for the fundamental rights and freedoms of the individual, the protection of right to life and personal liberty, the protection from inhuman or degrading treatment, for the equality before the law and the right to a fair hearings, and for the protection against arbitrary searches.<br />
==Defendant’s Rights==<br />
====Trial====<br />
The Constitution provides for the right to a fair public trial (Article 21), except when exclusion of the public is necessary in the “''interests of defense, public safety, public order, justice, public morality, the welfare of persons under the age of 18 years, or the protection of the private lives of the persons concerned in the proceedings.''”<br />
Defendants enjoy a presumption of innocence, and According to Article 21(9) Constitution, “A person who is tried for a criminal offense shall not be compelled to give evidence at the trial”.<br />
====Pre-Trial====<br />
The law requires warrants for arrests, except when police observe a crime being committed, believe that a person is about to commit a crime, or conclude that evidence will be lost if arrest is delayed. <br />
Detainees must be charged with the violation of a statute within a reasonable time, usually within 48 hours form the arrest, or, in remote areas, as soon as the judicial officer appears.<br />
Lengthy pretrial detention is common. At Mawelawela, the only female detention facility, detainees are not held separately from convicts. Several children live with their mothers in the facility. Female juveniles are also held in the women's correctional facility, although they sleep in different quarters.<br />
There is a bail system, and suspects can request bail at their first appearance in court, except in serious cases such as murder and rape.<br />
The Constitution prohibits torture and other inhuman practices. However, this provision is located in the “policy” section of the constitution and it is not enforceable in any court or tribunal.<br />
Section 21(2)(c) of the Constitution provides that a person charged with a criminal offense shall be entitled to legal representation at the expense of government in the case of any offense which carries a sentence of death or life imprisonment. However the country does not have a legal aid system, save for pro bono counsel offered by the state in capital cases (detainees may consult with a lawyer of their choice, but the government pays for defense counsel only in cases in which the potential penalty is death or life imprisonment). Otherwise, defendants in superior and magistrate courts may hire counsel at their own expense.<br />
Defendants can question witnesses against them and present witnesses and evidence on their own behalf. Defendants and their attorneys have access to relevant government-held evidence, generally obtained during pre-trial consultations with the public prosecutor's office.<br />
Defendants and prosecutors have the right of appeal, up to the Supreme Court.<br />
<br />
Defendants in traditional courts are not permitted formal legal counsel but may speak on their own behalf, call witnesses, and be assisted by informal advisors.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 2.628 (based on an estimated population of 1.2 million). 27.5% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Swaziland}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9082Swaziland2011-02-17T14:16:12Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
==Background==<br />
Swaziland is an absolute hereditary monarchy (Kingdom of Swaziland is the conventional long name of the country). King Mswati III has ruled since 25 April 1986. The Head of the Government, appointed by the monarch from among the elected members of the House of Assembly, is Prime Minister Barnabas Sibusiso Dlamini (since 16 October 2008). The Cabinet is recommended by the prime minister and confirmed by the monarch.<br />
Swaziland gained its independency form Britain on 6 September 1968. Student and labor unrest during the 1990s pressured King Mswati to allow political reform and greater democracy. A constitution came into effect in 2006, but political parties remain banned. The African United Democratic Party tried unsuccessfully to register as an official political party in 2006. Talks over the constitution broke down between the government and progressive groups in 2007.<br />
According to 2006 data, 69% of the population lives below the poverty line.<br />
According to the UNDP, the Human Development Index (HDI) for 2007 for Swaziland is 0.572, which gives the country a rank of 142 out of 182 countries with data. <br />
Swaziland acceded the ICCPR on 26 Mar 2004.<br />
==Type of System==<br />
Swaziland operates under a dual legal system: Roman-Dutch common law (under which the Constitutional Courts operate) and customary law. <br />
The system based on Roman-Dutch law consists of the Supreme Court, the High Court, and magistrate courts. The Supreme Court, which is composed of foreign-born judges and two Swazis, has appellate and supervisory jurisdiction over the High Court and magistrate courts.<br />
Neither the Supreme Court nor the High Court has jurisdiction in matters concerning the office of the king or queen mother, the regency, the Swazi National Council, or the traditional regiments system, all of which are governed by traditional laws and customs.<br />
The traditional courts follow traditional laws and customs and serve the chiefs appointed by the king, and have limited civil and criminal jurisdiction. They are authorized to impose fines of up to 100 emalangeni ($13.50) and prison sentences of up to 12 months, and their decisions can be appealed to the High Court.<br />
In the customary courts, the legal representation of accused persons is not possible and evidence cannot be presented. Only the most serious cases are considered for transfer to the magistrate courts.<br />
Although the law states that the prosecutor presides over the allocation of cases to the appropriate courts, often the decision is made by the police officers at the time of arrest.<br />
Swaziland does not have dedicated minors’ courts. Only the High Court has a dedicated section that facilitates all matters involving minors. <br />
==Sources of Defendant’s Rights==<br />
Swaziland does not have a single code containing its laws. Instead the laws of the country are drawn from: the Constitution, legislation, common law, judicial precedent, customary law, authoritative texts, and decrees.<br />
Chapter III of the Constitution is titled “Protection and Promotion of Fundamental Rights and Freedoms” (articles 14-39), and it provides for the fundamental rights and freedoms of the individual, the protection of right to life and personal liberty, the protection from inhuman or degrading treatment, for the equality before the law and the right to a fair hearings, and for the protection against arbitrary searches.<br />
==Defendant’s Rights==<br />
====Trial====<br />
The Constitution provides for the right to a fair public trial (Article 21), except when exclusion of the public is necessary in the “''interests of defense, public safety, public order, justice, public morality, the welfare of persons under the age of 18 years, or the protection of the private lives of the persons concerned in the proceedings.''”<br />
Defendants enjoy a presumption of innocence, and According to Article 21(9) Constitution, “A person who is tried for a criminal offense shall not be compelled to give evidence at the trial”.<br />
====Pre-Trial====<br />
The law requires warrants for arrests, except when police observe a crime being committed, believe that a person is about to commit a crime, or conclude that evidence will be lost if arrest is delayed. <br />
Detainees must be charged with the violation of a statute within a reasonable time, usually within 48 hours form the arrest, or, in remote areas, as soon as the judicial officer appears.<br />
Lengthy pretrial detention is common. At Mawelawela, the only female detention facility, detainees are not held separately from convicts. Several children live with their mothers in the facility. Female juveniles are also held in the women's correctional facility, although they sleep in different quarters.<br />
There is a bail system, and suspects can request bail at their first appearance in court, except in serious cases such as murder and rape.<br />
The Constitution prohibits torture and other inhuman practices. However, this provision is located in the “policy” section of the constitution and it is not enforceable in any court or tribunal.<br />
Section 21(2)(c) of the Constitution provides that a person charged with a criminal offense shall be entitled to legal representation at the expense of government in the case of any offense which carries a sentence of death or life imprisonment. However the country does not have a legal aid system, save for pro bono counsel offered by the state in capital cases (detainees may consult with a lawyer of their choice, but the government pays for defense counsel only in cases in which the potential penalty is death or life imprisonment). Otherwise, defendants in superior and magistrate courts may hire counsel at their own expense.<br />
Defendants can question witnesses against them and present witnesses and evidence on their own behalf. Defendants and their attorneys have access to relevant government-held evidence, generally obtained during pre-trial consultations with the public prosecutor's office.<br />
Defendants and prosecutors have the right of appeal, up to the Supreme Court.<br />
<br />
Defendants in traditional courts are not permitted formal legal counsel but may speak on their own behalf, call witnesses, and be assisted by informal advisors.<br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*2009 Prison Population: 2.628 (based on an estimated population of 1.2 million). 27.5% of the prison population is composed of pre-trial detainees or remand prisoners.<br />
<br />
{{Languages|Swaziland}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9081Swaziland2011-02-17T08:58:50Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
<br />
''Coming Soon!''</div>Spalombahttps://defensewiki.ibj.org/index.php?title=File:CONSTITUTION_OF_THE_KINGDOM_OF_SWAZILAND.pdf&diff=9080File:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf2011-02-17T08:57:44Z<p>Spalomba: </p>
<hr />
<div></div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9079Swaziland2011-02-17T08:54:56Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Swaziland&diff=9078Swaziland2011-02-17T08:52:38Z<p>Spalomba: Created page with "| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue" |- |<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; fo..."</p>
<hr />
<div>| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF SWAZILAND</h2><br />
*[[Media:CONSTITUTION OF THE KINGDOM OF SWAZILAND.pdf | CONSTITUTION OF THE KINGDOM OF SWAZILAND]] <br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Criminal_Justice_Systems_Around_the_World&diff=9077Criminal Justice Systems Around the World2011-02-17T08:50:12Z<p>Spalomba: /* Country Pages */</p>
<hr />
<div>Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].<br />
<br />
==Country Pages==<br />
<div style="float: left; width: 33%"><br />
<br />
* Afghanistan<br />
* Algeria<br />
* Angola<br />
* [[Argentina]]<br />
* Armenia<br />
* Australia<br />
* Azerbaijan<br />
* [[Bangladesh]]<br />
* Belgium<br />
* Benin<br />
* Bolivia<br />
* Brazil<br />
* [[Brunei]]<br />
* [[Burundi]] <br />
* Cameroon<br />
*[[Cambodia]]<br />
* Canada <br />
* Central African Republic<br />
* Chad<br />
* Chile<br />
*[[China]] <br />
* Colombia<br />
* Côte d'Ivoire<br />
* Cyprus<br />
* [[Democratic Republic of Congo]]<br />
* Ecuador<br />
* [[Egypt]]<br />
* El Salvador<br />
*[[England and Wales]]<br />
* Ethiopia<br />
* Finland<br />
* [[France]]<br />
** French Guiana<br />
* Georgia<br />
*Germany<br />
</div><div style="float: left; width: 33%"><br />
<br />
* Ghana<br />
* Greece<br />
* Guatemala<br />
* Guinea<br />
* Guinea Bissau<br />
* Guyana<br />
* Haiti<br />
* Hong Kong<br />
*[[India]]<br />
*[[Indonesia]]<br />
*Iran<br />
*Iraq<br />
*Ireland<br />
*Israel<br />
* [[Italy]]<br />
*Jamaica<br />
*Japan<br />
* Jordan<br />
*[[Kenya]]<br />
*[[Laos]]<br />
* Lebanon<br />
* [[Liberia]]<br />
* Malawi<br />
* [[Malaysia]]<br />
* Mali<br />
*[[Mexico]]<br />
* Mongolia <br />
* Morocco<br />
*[[Myanmar]]<br />
* [[Nepal]]<br />
* Netherlands<br />
*New Zealand<br />
* Nigeria<br />
* North Korea<br />
* Norway<br />
<br />
</div><div style="float: left; width: 33%"><br />
<br />
* [[Pakistan]]<br />
* Paraguay<br />
* Peru<br />
* Poland<br />
* Romania<br />
* [[Rwanda]]<br />
* Russia<br />
* Senegal<br />
* Serbia<br />
* Sierra Leone<br />
* [[Singapore]]<br />
* [[South Africa]]<br />
* Spain<br />
*[[Sri Lanka]]<br />
* Sudan<br />
* Suriname<br />
* [[Swaziland]]<br />
* Sweden<br />
* Switzerland<br />
* Syria<br />
*[[Tanzania]] <br />
**[[Zanzibar]]<br />
*[[Thailand]]<br />
* Trinidad and Tobago <br />
*[[The Republic of the Philippines]]<br />
* Turkey<br />
*[[Uganda]] <br />
* Ukraine<br />
*United Arab Emirates<br />
*[[United States]]<br />
* Uruguay <br />
* Uzbekistan<br />
* [[Venezuela]]<br />
*[[Vietnam]] <br />
*[[Zimbabwe]]<br />
<br />
<br />
<br />
</div><br />
<br />
==Other Countries==<br />
See a country that is not listed here? Email elearning@ibj.org.</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Italy&diff=8987Italy2011-02-14T15:45:46Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF ITALY</h2><br />
*[[Media:Constitution of The Italian Republic.pdf | Constitution of The Italian Republic]] <br />
* [http://www.altalex.com/index.php?idnot=2011 Italian Criminal Procedure Code (Italian)]<br />
* [http://www.altalex.com/index.php?idnot=36653 Italian Penal Code (Italian)]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
<br />
Italy became a nation-state in 1861, when the regional states of the peninsula, along with Sardinia and Sicily, were united under King Victor Emmanuel II. An era of parliamentary government ended when Benito Mussolini established a Fascist dictatorship, in the early 1920s. His alliance with Nazi Germany led to Italy’s defeat in World War II. A democratic republic replaced the monarchy in 1946, and economic revival followed. Italy was a charter member of NATO and the European Economic Community (EEC). It has been at the forefront of European economic and political unification, joining the Economic and Monetary Union in 1999. Persistent problems include illegal immigration, organized crime, corruption, high unemployment, slow economic growth, and the low incomes and technical standards of southern Italy compared with the north.<br />
<br />
==Type of System==<br />
<br />
<br />
Traditionally, Italy is a civil law country. However, the implementation of the Criminal Procedure Code in 1989 dramatically moved the system toward common law models. The inquisitorial system has been infused with adversarial elements, making it a hybrid system.<br />
For what concerns criminal proceedings, the judicial branch is. Courts of first instance are the magistrate courts (Giudice di Pace), single-judge tribunals (Tribunale Monocratico), collegiate tribunals (Tribunale), the “Corte d’Assise”. Their subject matter jurisdiction depends on the seriousness of the crime. For example, the “Corte d’Assise”, which rules with the presence of two judges and six lay jurors, has full jurisdiction for crimes such as murder, attempted murder, terrorism, and criminal (mafia-like) associations. Courts of second instance are the single-judge tribunals for the decision of the magistrate courts, the court of appeals for decisions both of the single-judge and the collegiate tribunals, and the “Corte d’Assise d’Appello” for the decisions of the “Corte d’Assise”. The third and last instance court is the “Corte di Cassazione”, which can only evaluate the adherence of judicial decisions to the law. In exceptional cases, and without time limits, any person who has been convicted may present a request for revision to the court of appeal that has the territorial jurisdiction over the case.<br />
The Constitutional Court ensures the adherence of decisions of the whole judiciary branch to the principles of the Constitution.<br />
The Superior Council of the Magistrature is the regulating body of the discipline of all judges.<br />
<br />
==Sources of Defendant's Rights==<br />
<br />
<br />
The Constitution was approved in December 1947 and it entered into force on 1 January 1948. It is composed of four sections of which the first one is dedicated to the fundamental principles of the Republic. The Constitution recognizes the fundamental rights of each human being (Article 2), and among them, the equality of all citizens before the law (Article 3), the inviolability of the physical integrity of each person, as well as of everyone’s inviolable personal liberty (Article 13). The Constitution specifically states that only in exceptional cases the public security authorities may take provisional measures which must be reported within forty-eight hours to the judicial authorities. If the latter do not confirm in the next forty-eight hours, the measures are withdrawn and become null and void.<br />
Article 111 Constitution is the bedrock of the due process in Italy. It comprises fundamental guarantees for criminal proceedings, such as the right to notice of charges, the right to cross examine witnesses, and the principle that all judicial decisions must be motivated.<br />
<br />
The Code of Criminal Procedure entered into force in 1989, while the Penal Code entered into force in 1930 and it has amended many times.<br />
<br />
==Defendant's Rights==<br />
====Pre-Trial====<br />
<br />
<br />
The Criminal Procedure Code distinguishes between arrest (“arresto” - Articles 380-382) and detention of a person suspected of a crime (“fermo” - Article 384). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed. Arrests occur before the public prosecutor takes over the investigations, the police have the authority to make them. However, both procedures require the police to advise the public prosecutor within 24 hours. Within 48 hours (during which the prosecutor may interrogate the person at the presence of a defense counsel) the prosecutor must ask the preliminary hearing judge to validate the arrest/detention, otherwise the person must be released immediately.<br />
A suspect becomes a defendant only after the prosecutor has initiated formal criminal proceeding, formalizing the charges. Suspects and defendants have the same rights and guarantees during interrogation (e.g. mandatory presence of a defense counsel - Article 356 CPC).<br />
Moreover, the code gives police the authority to gather information from a person who is not even a suspect yet, and without the assistance of a counsel. However, as soon as the person reveals possible incriminating details, the police are required to interrupt the questioning and advise the person about his right to counsel (Article 351 CPC)<br />
When this is the only possible method left, the public prosecutor may require preliminary detention of a person suspected of a crime, if there are serious and grave evidence of guilt, and, alternatively, if there is fear that the investigations might be otherwise jeopardized, that the defendant would flee, or there is fear that the defendant will commit a violent crime similar to the one allegedly committed. The preliminary judge must confirm the request, and a suspect may be held from three months to 1 year, depending on the punishment prescribed for the alleged offense. The detention expires if, during the prescribed time, the judge for the preliminary hearing does not issue a decree binding the defendant over for the trial, or the accused pleas guilt (Articles 273 and followings CPC).<br />
The accused has the right to be assisted by a defense counsel, and the presence of an attorney is mandatory throughout criminal proceedings. Judges and courts may nominate a defense counsel (the state bears the expenses) for people who do not have a defense counsel or cannot afford to pay for him (Articles 96 - 108 CPC).<br />
The Criminal Procedure Code distinguishes between inspections and searches (Articles 244 - 252 CPC). Inspections are mainly observations of places (e.g. the crime scene), and their purpose is descriptive. They are authorized by a written order of the judicial authority, except in cases of flagrante delicto . Searches as well have to be authorized by the judicial authority except in an (exhaustive) list of cases provided by Article 352 CPC. Searches are carried out with the purpose of securing evidence or the accused for the criminal proceeding.<br />
Line ups and other identification procedures must be put in place according to Articles 211 - 217 Criminal Procedure Code.<br />
Article 191 CPC states that “''evidence acquired in violation of prohibitions established by law may not be used''”, and the court is competent to declare evidence unusable at any stage of the proceeding.<br />
<br />
Defense counsels are authorized to carry out their own investigations. The Criminal Procedure Code sets out specific requirements for these activities (Articles 391 bis - 391 nonies CPC).<br />
<br />
====Trial====<br />
<br />
<br />
Criminal proceedings commence with a notice of crime received from the police or the public prosecutor. This is the official start of the investigations, which may last for a period between six months and two years, depending on the crime. Unless particular cases, the defendant knows about the investigations only at the end of them when he is notified the charges of which he is accused, and the results of the investigations (Article 415 bis CPP). Starting from this moment, the defendant and his lawyer have the right to access the whole files concerning the investigations.<br />
Depending on the crime, there might be a preliminary hearing and then the trial, or immediately the trial. The assistance of a defense lawyer is mandatory, and he may present evidence, require witnesses, cross-examine witnesses, present oral arguments, and closing statements. He has always the last word during hearings (Articles 465 - 567 CPC).<br />
Defendant’s and their counsels have the right to propose appeals and file recourses to the Cassation Court, as court of last resort (except for the revision which is an exceptional procedure, and it is to be presented to the competent appeal court).<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*Overcrowded prison facilities represent one of the main issues affecting the correction system in Italy. According to the most recent data given by the Ministry of Justice, (http://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886) at the end of January 2011 there were 67.634 detainees, while the capacity of the prison system is 45.165 detainees. Due to this reason, while the law prescribes the separation of pre-trial detainees from the others, the first one are often placed with regular detainees, with all the problems related to this situation.<br />
<br />
{{Languages|Italy}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=Italy&diff=8986Italy2011-02-14T15:43:37Z<p>Spalomba: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">ACTS OF ITALY</h2><br />
*[[Media:Constitution of The Italian Republic.pdf | Constitution of The Italian Republic]] <br />
* [http:http://www.altalex.com/index.php?idnot=2011 Italian Criminal Procedure Code (Italian)]<br />
* [http://www.altalex.com/index.php?idnot=36653 Italian Penal Code (Italian)]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
<br />
Italy became a nation-state in 1861, when the regional states of the peninsula, along with Sardinia and Sicily, were united under King Victor Emmanuel II. An era of parliamentary government ended when Benito Mussolini established a Fascist dictatorship, in the early 1920s. His alliance with Nazi Germany led to Italy’s defeat in World War II. A democratic republic replaced the monarchy in 1946, and economic revival followed. Italy was a charter member of NATO and the European Economic Community (EEC). It has been at the forefront of European economic and political unification, joining the Economic and Monetary Union in 1999. Persistent problems include illegal immigration, organized crime, corruption, high unemployment, slow economic growth, and the low incomes and technical standards of southern Italy compared with the north.<br />
<br />
==Type of System==<br />
<br />
<br />
Traditionally, Italy is a civil law country. However, the implementation of the Criminal Procedure Code in 1989 dramatically moved the system toward common law models. The inquisitorial system has been infused with adversarial elements, making it a hybrid system.<br />
For what concerns criminal proceedings, the judicial branch is. Courts of first instance are the magistrate courts (Giudice di Pace), single-judge tribunals (Tribunale Monocratico), collegiate tribunals (Tribunale), the “Corte d’Assise”. Their subject matter jurisdiction depends on the seriousness of the crime. For example, the “Corte d’Assise”, which rules with the presence of two judges and six lay jurors, has full jurisdiction for crimes such as murder, attempted murder, terrorism, and criminal (mafia-like) associations. Courts of second instance are the single-judge tribunals for the decision of the magistrate courts, the court of appeals for decisions both of the single-judge and the collegiate tribunals, and the “Corte d’Assise d’Appello” for the decisions of the “Corte d’Assise”. The third and last instance court is the “Corte di Cassazione”, which can only evaluate the adherence of judicial decisions to the law. In exceptional cases, and without time limits, any person who has been convicted may present a request for revision to the court of appeal that has the territorial jurisdiction over the case.<br />
The Constitutional Court ensures the adherence of decisions of the whole judiciary branch to the principles of the Constitution.<br />
The Superior Council of the Magistrature is the regulating body of the discipline of all judges.<br />
<br />
==Sources of Defendant's Rights==<br />
<br />
<br />
The Constitution was approved in December 1947 and it entered into force on 1 January 1948. It is composed of four sections of which the first one is dedicated to the fundamental principles of the Republic. The Constitution recognizes the fundamental rights of each human being (Article 2), and among them, the equality of all citizens before the law (Article 3), the inviolability of the physical integrity of each person, as well as of everyone’s inviolable personal liberty (Article 13). The Constitution specifically states that only in exceptional cases the public security authorities may take provisional measures which must be reported within forty-eight hours to the judicial authorities. If the latter do not confirm in the next forty-eight hours, the measures are withdrawn and become null and void.<br />
Article 111 Constitution is the bedrock of the due process in Italy. It comprises fundamental guarantees for criminal proceedings, such as the right to notice of charges, the right to cross examine witnesses, and the principle that all judicial decisions must be motivated.<br />
<br />
The Code of Criminal Procedure entered into force in 1989, while the Penal Code entered into force in 1930 and it has amended many times.<br />
<br />
==Defendant's Rights==<br />
====Pre-Trial====<br />
<br />
<br />
The Criminal Procedure Code distinguishes between arrest (“arresto” - Articles 380-382) and detention of a person suspected of a crime (“fermo” - Article 384). The difference between them is related to the seriousness of the offense, and if the offender is caught red-handed. Arrests occur before the public prosecutor takes over the investigations, the police have the authority to make them. However, both procedures require the police to advise the public prosecutor within 24 hours. Within 48 hours (during which the prosecutor may interrogate the person at the presence of a defense counsel) the prosecutor must ask the preliminary hearing judge to validate the arrest/detention, otherwise the person must be released immediately.<br />
A suspect becomes a defendant only after the prosecutor has initiated formal criminal proceeding, formalizing the charges. Suspects and defendants have the same rights and guarantees during interrogation (e.g. mandatory presence of a defense counsel - Article 356 CPC).<br />
Moreover, the code gives police the authority to gather information from a person who is not even a suspect yet, and without the assistance of a counsel. However, as soon as the person reveals possible incriminating details, the police are required to interrupt the questioning and advise the person about his right to counsel (Article 351 CPC)<br />
When this is the only possible method left, the public prosecutor may require preliminary detention of a person suspected of a crime, if there are serious and grave evidence of guilt, and, alternatively, if there is fear that the investigations might be otherwise jeopardized, that the defendant would flee, or there is fear that the defendant will commit a violent crime similar to the one allegedly committed. The preliminary judge must confirm the request, and a suspect may be held from three months to 1 year, depending on the punishment prescribed for the alleged offense. The detention expires if, during the prescribed time, the judge for the preliminary hearing does not issue a decree binding the defendant over for the trial, or the accused pleas guilt (Articles 273 and followings CPC).<br />
The accused has the right to be assisted by a defense counsel, and the presence of an attorney is mandatory throughout criminal proceedings. Judges and courts may nominate a defense counsel (the state bears the expenses) for people who do not have a defense counsel or cannot afford to pay for him (Articles 96 - 108 CPC).<br />
The Criminal Procedure Code distinguishes between inspections and searches (Articles 244 - 252 CPC). Inspections are mainly observations of places (e.g. the crime scene), and their purpose is descriptive. They are authorized by a written order of the judicial authority, except in cases of flagrante delicto . Searches as well have to be authorized by the judicial authority except in an (exhaustive) list of cases provided by Article 352 CPC. Searches are carried out with the purpose of securing evidence or the accused for the criminal proceeding.<br />
Line ups and other identification procedures must be put in place according to Articles 211 - 217 Criminal Procedure Code.<br />
Article 191 CPC states that “''evidence acquired in violation of prohibitions established by law may not be used''”, and the court is competent to declare evidence unusable at any stage of the proceeding.<br />
<br />
Defense counsels are authorized to carry out their own investigations. The Criminal Procedure Code sets out specific requirements for these activities (Articles 391 bis - 391 nonies CPC).<br />
<br />
====Trial====<br />
<br />
<br />
Criminal proceedings commence with a notice of crime received from the police or the public prosecutor. This is the official start of the investigations, which may last for a period between six months and two years, depending on the crime. Unless particular cases, the defendant knows about the investigations only at the end of them when he is notified the charges of which he is accused, and the results of the investigations (Article 415 bis CPP). Starting from this moment, the defendant and his lawyer have the right to access the whole files concerning the investigations.<br />
Depending on the crime, there might be a preliminary hearing and then the trial, or immediately the trial. The assistance of a defense lawyer is mandatory, and he may present evidence, require witnesses, cross-examine witnesses, present oral arguments, and closing statements. He has always the last word during hearings (Articles 465 - 567 CPC).<br />
Defendant’s and their counsels have the right to propose appeals and file recourses to the Cassation Court, as court of last resort (except for the revision which is an exceptional procedure, and it is to be presented to the competent appeal court).<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*Overcrowded prison facilities represent one of the main issues affecting the correction system in Italy. According to the most recent data given by the Ministry of Justice, (http://www.giustizia.it/giustizia/it/mg_1_14_1.wp?facetNode_1=0_2&previsiousPage=mg_1_14&contentId=SST600886) at the end of January 2011 there were 67.634 detainees, while the capacity of the prison system is 45.165 detainees. Due to this reason, while the law prescribes the separation of pre-trial detainees from the others, the first one are often placed with regular detainees, with all the problems related to this situation.<br />
<br />
{{Languages|Italy}}<br />
__NOTOC__</div>Spalombahttps://defensewiki.ibj.org/index.php?title=File:Constitution_of_The_Italian_Republic.pdf&diff=8984File:Constitution of The Italian Republic.pdf2011-02-14T15:19:46Z<p>Spalomba: </p>
<hr />
<div></div>Spalomba