Difference between revisions of "Representing Victims of Torture"

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==Identifying Victims of Torture==
 
==Identifying Victims of Torture==
  
The identity of the victim of torture is important because:
+
It is important for criminal defense attorneys to identify victims of torture because specific groups, such as children, women, the elderly, or religious persons, may be more vulnerable to the effects of ill-treatment, making it easier to consider that the degree of suffering is severe enough to amount to torture. Identifying and keeping track of torture cases will also help identify patterns of abuse being directed at a particular group of victims. In certain cases, systematic torture of a particular group will allow the criminal defense attorney to utilize additional international mechanisms <ref> http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.
 
 
**Specific groups, such as children, women, the elderly, or religious persons, may be more vulnerable to the effects of ill-treatment, making it easier to consider that the degree of suffering is severe enough to amount to torture.
 
**It helps to identify patterns of abuse being directed at a particular group of victims.
 
**Additional international mechanisms which are specific to particular groups can be used <ref> http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.
 
  
 +
===Istanbul Protocol===
 +
In 1999, the United Nations developed the first set of international standards for documenting torture, the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol.
  
 
According to the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State should appoint a primary investigator to serve as the main liaison between the authorities and the alleged torture victim.  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 the following information to produce a comprehensive evaluation of the alleged torture victim:
 
According to the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State should appoint a primary investigator to serve as the main liaison between the authorities and the alleged torture victim.  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 the following information to produce a comprehensive evaluation of the alleged torture victim:
  
1) Circumstances leading up to the torture  
+
#Circumstances leading up to the torture  
 
+
#The dates and times of the torture
2) The dates and times of the torture
+
#Descriptions, and if possible names of the perpetrators
 
+
#Description of the torture, including methods and any other general patterns of abuse, including sexual abuse.
3) Descriptions, and if possible names of the perpetrators
+
#Description of any physical injuries
 
+
#Description of detention facilities
4) Description of the torture, including methods and any other general patterns of abuse, including sexual abuse.
 
 
 
5) Description of any physical injuries
 
 
 
6) Description of detention facilities
 
 
 
  
 
The State should also provide the following to the alleged torture victim during the investigation:  
 
The State should also provide the following to the alleged torture victim during the investigation:  
  
1) Updates on the progress of the investigation.
+
#Updates on the progress of the investigation.
 
+
#Information on all key hearings in the investigation and prosecution of the case.
2) Information on all key hearings in the investigation and prosecution of the case.
+
#Updates on the suspected perpetrator (whether he/she has been identified, arrested etc.)
 
+
#Contact information for advocacy and treatment groups that might assist the victim.
3) Updates on the suspected perpetrator (whether he/she has been identified, arrested etc.)
+
#The right to refuse questioning, to stop the investigation, or to take a break
 
+
#Protection, not only to the victim but also to the victim's family
4) Contact information for advocacy and treatment groups that might assist the victim.
+
#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> http://www.kspope.com/torvic/torture1.php </ref>.
 
 
5) The right to refuse questioning, to stop the investigation, or to take a break
 
 
 
6) Protection, not only to the victim but also to the victim's family
 
 
 
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> http://www.kspope.com/torvic/torture1.php </ref>.
 
  
  

Revision as of 21:21, 16 June 2010

What is Torture?

Torture under International Law

There are several international treaties which prohibit the use of torture. However, the Convention Against Torture, first ratified on 10 December 1984, remains the most significant and influential of these treaties. The Convention Against Torture (CAT) defines torture as:

"Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him, or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to, lawful sanctions." [1]

Elements

1) An intentional act through which physical and mental pain and suffering is inflicted on a person

2) Committed with purpose

3) Committed by a public official or by a private person acting at the instigation of the former [2]

Several other international treaties prohibit torture as well:

  • Universal Declaration of Human Right
  • The International Covenant on Civil and Political Rights
  • Common Article 3 of the four Geneva Conventions (prohibiting torture in all armed conflicts)
  • The Rome Statute of the International Criminal Court (ICC). The ICC has particular significance because it provides for jurisdiction over cases where torture is alleged either as part of the crime of genocide or as a crime against humanity, if the torture is committed as part of a widespread or systematic attack, or as a war crime under the Geneva Conventions of 1949.

The test for determining whether a treatment would constitute torture is subjective. Thus, in assessing whether a particular practice is torture, it is essential to consider the customary practices of different cultures. For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture. [3]

Inhuman and Degrading Treatment

The Convention Against Torture also prohibits inhuman and degrading treatment.[4] A single treatment may be both torture and inhuman and degrading treatment. The Human Rights Committee of the International Covenant on Civil and Political Rights has stated that inhuman and degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim."[5]

The European Court of Human Rights has concluded that torture can be distinguished from inhuman and degrading treatment by the degree of suffering. Although both involve "deliberate inhuman treatment causing very serious and cruel suffering."[6] torture is more severe.

Ill-Treatment

Overall, all forms of ill-treatment are prohibited under international law. This means that even where treatment is not severe enough (in legal terms) to constitute torture or inhuman or degrading treatment, the state may still be found to have violated the prohibition on ill-treatment. [7].

Torture Under Domestic Laws

The Convention Against Torture sets forth minimum standards for defining torture. The Convention Against Torture explicitly permits individual states to enact more expansive definitions of torture. If they chose to do so, this definition will bind them in both domestic and international disputes.

Identifying Victims of Torture

It is important for criminal defense attorneys to identify victims of torture because specific groups, such as children, women, the elderly, or religious persons, may be more vulnerable to the effects of ill-treatment, making it easier to consider that the degree of suffering is severe enough to amount to torture. Identifying and keeping track of torture cases will also help identify patterns of abuse being directed at a particular group of victims. In certain cases, systematic torture of a particular group will allow the criminal defense attorney to utilize additional international mechanisms [8].

Istanbul Protocol

In 1999, the United Nations developed the first set of international standards for documenting torture, the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, commonly known as the Istanbul Protocol.

According to the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State should appoint a primary investigator to serve as the main liaison between the authorities and the alleged torture victim. 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 the following information to produce a comprehensive evaluation of the alleged torture victim:

  1. Circumstances leading up to the torture
  2. The dates and times of the torture
  3. Descriptions, and if possible names of the perpetrators
  4. Description of the torture, including methods and any other general patterns of abuse, including sexual abuse.
  5. Description of any physical injuries
  6. Description of detention facilities

The State should also provide the following to the alleged torture victim during the investigation:

  1. Updates on the progress of the investigation.
  2. Information on all key hearings in the investigation and prosecution of the case.
  3. Updates on the suspected perpetrator (whether he/she has been identified, arrested etc.)
  4. Contact information for advocacy and treatment groups that might assist the victim.
  5. The right to refuse questioning, to stop the investigation, or to take a break
  6. Protection, not only to the victim but also to the victim's family
  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. [9].


Psychological evidence of torture

One recognized sign that someone has been tortured is that he/she suffers from Post Traumatic Stress Disorder (PTSD). Studies show that 70% of torture victims suffer from PTSD. [10]. Symptoms include flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses. [11]. To prevent the victim from re-experiencing the trauma, the investigator should explain what he or she should expect prior to the medical examination. 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. . Victims may also suffer from other disorders such as personality disorders, anxiety disorders and bipolar disorders. [12]


Torture victims also 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. [13].


Children who have been tortured will have different reactions than adults, depending on their age. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, the child should be examined by an expert in child abuse. Caregivers should be sure to care for the child, even if the child did not experience torture directly, but indirectly witnessed torture of a loved one. [14].

Representing Victims of Torture

Even though there is a clear legal difference between torture and mistreatment, particularly as defined by international instruments, it does not make much difference to a lawyer:in practice, there is no difference between blows, physical abuses of or insupportable pressure placed on someone in order to obtain a confession, or for any other reason. A lawyer may thus represent a defendant who was tortured to obtain confession, working to discredit the confession by discussing the torture. A lawyer may also bring suit on behalf of a torture victim's behalf against his/her perpetrators.

a. Importance of early access to counsel - The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is appointed to represent the defendant until trial. In other cases, the defendant may be appointed at arraignment. In the United States, a defendant has the right to counsel much earlier (Miranda Warnings), but they must invoke the right themselves. It is not clear whether defendants have a similar right to counsel at pre-trial stages in our countries. You should look into this to whatever extent you can. b. Requesting court-ordered medical examination. g. Referring defendant to appropriate medical and psychological authorities for treatment if the court does not do so.

Defense strategies are the methods by which a criminal defense attorney decides to try his or 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. 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.

Lawyers have an implicit duty of communication, as 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 maintain the strategy throughout representation in this manner. 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.


Client Interview

The lawyer has a right to interview his client in private without any police officer or prison officer present. The police cannot 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. During this interview the lawyer must find out all relevant information including:

  • The client's response to the allegations levelled against him;
  • The names of the officers who arrested him and the investigating officer;
  • What the arresting detail said to him at the time of the arrest;
  • What questioning, if any, the client has been subjected to since he was arrested and by whom the questioning was done;
  • Whether he has made any sort of statement and, if he has, what was it (i.e. was it made orally or was it a handwritten statement; was it a warned and cautioned statement which was typed and read over to him before he signed it; has the statement been confirmed before a magistrate? etc.)
  • If a statement has been made, 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.) If a medical practitioner has already given medical treatment to his client, the lawyer should ask the police for a copy of the medical report (where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to allow him to see this recorded statement and he should request that he be provided with a copy of this statement).
  • 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.


Client Interview Checklist:

  • Exact time and date of arrest.
  • Details of the arrest: number of people, role of each in the arrest and, if possible, name and occupation of each.
  • Words exchanged, rights evoked,
  • Details of placement into custody, whether or not the client knowledge of the infraction when being placed into custody
  • Language used, how the client understood the language used
  • Visits: conditions and treatment after the arrest and during custody: doctor visits, lawyer visits, whether there was an interpreter, details on interrogators, rest, food, and family.
  • Judicial follow-up: transfers to courtroom, summons, notifications, right to a lawyer


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 developed to deal with trauma)

1) 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. A good 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, colour and brand of the police car, weather that day, what people nearby were wearing). These details may initially seem insignificant, however, giving small details often makes it easier to speak of violence.

2) 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.

3)Pay attention to the details. The victim's understanding of the gravity of certain acts may be different from what is legally proscribed.

4) Once the client has begun, do not interrupt him or her. Wait until the narration is over to ask further questions. With the victims, come up with an inventory of the visible marks that resulted. Ask if there were witnesses to the arrest (especially the family or colleagues), for descriptions and even possibly names, of the perpetuators (first names are often given during physical interrogations).


When Victims are Talkative It is important to allow for an initial 'purging' phase during the interview, where the client is able to 'get it all out.' Take advantage of this time to identify elements that can be used to direct the later conversation. There can occasionally, but not always, be a tendency to exaggerate. Explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators) Have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow. Have a talkative victim speak of mental or psychological torture first. Make breaks during the story to explain, for example, the anti-torture treaties or legislation which exist. - If the flow is interrupted, change the subject for a time. 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. Make an inventory of places, names and witnesses as above.

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. ?In both of the above cases, by the end of the interview the lawyer should have information:

  • On the time and place of the events
  • On any persons present (whether or not they participated).
  • On the exact role of each person or party involved, and especially, the nature and number of blows.
  • On all pressures or threats constituting mental or psychological torture.
  • On all marks personally seen.
  • On possible witnesses (bystanders, co-prisoners).

Following the interview, a doctor should be called for expertise, and, if necessary, care, witnesses found from whom to take statements or cite, and then the defense should be prepared A client who alleges they have been tortured may be able to raise several defenses to their crimes at trial. However, representing a client goes beyond merely raising defenses.


Defenses

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. To be pragmatic, a criminal defense lawyer can argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate. Any other attack on the individual, be it physical (slaps, blows, privations, physical abuse, detention without valid warrant or cause) or psychological (threats, pressure on acquaintances, deprivation of contact) is an illegal act, regardless of the definition used.

c. Admissibility of Confessions Induced Through Torture. The most common method of defense is to argue that the defendant's confession, or a witness's confession was induced through torture.. The exclusionary principle should apply not only to the confession, but to all fruits or evidence produced as a result of the confession. This would be the case in the United States, subject to attenuation limitations as set forth in the Wong Sun case. See Exclusionary Principle page on Defense Wiki. There are several opportunities to raise this defense in a common law system

  • i. Arraignment / Bail - Arguing that case should be thrown out because defendant's confession was induced by torture.
  • ii. At trial - Arguing confession evidence and fruits of confession evidence should be excluded because they were induced by torture. Please note, in some jurisdictions the confession is STILL admissible, regardless of torture, but torture evidence is admissible to show confession is unreliable. Defense attorney must therefore collect evidence to show torture and unreliability of confession.
  • iii. At Appeal - If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was incorrect and request a reversal of conviction based on the error.

The defense can take one of three forms: Nullity. Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interroation or custody. Refer to Section V Absolute Defense. A defense that rejects statements or concessions given under conditions of violence and mistreatment. Disciplinary Action Against Perpetrators. Criminal or civil disciplinary action can be taken against the perpetuators under the auspices of the prosecution by submitting a complaint. It is possible to pursue the three actions simultaneously, and any of these may be added to the defences above. In all cases, a CONCRETE file is needed before moving forward. This is the one case where the burden of proof lies upon the defense and this proof is, usually, quite complex.

e. Nullity of Procedure - There is a similar procedure used in criminal cases in civil law countries. Look at the Rwanda pages on Procedural Nullity to review this material. f. Civil law remedies - Defendants may have money damages remedy against either the state (government) or perpetrator. For instance, in the United States, a defendant would have a separate civil law remedy for torture induced confessions under 42 USC Section 1983.

2. International Remedies a. You can talk here about international remedies for violations of CAT> b. IS the country a signatory to cat? c. If they are not, can they still be liable under a jus cogens theory? d. What are the requirements for bringing an action? Exhaustion of local remedies, etc. e. Where do you bring an action? f. What are the remedies? Money damages? g. Give an example case if you can find one.

A state can be held responsible not only for actions committed by its officials amounting to torture, but also for its omissions (failing to take effective measures to prevent torture from occurring/failing to prosecute perpetrators/failing to investigate allegations). [15].

Codes

Convention Against Torture

References

  1. Convention Against Torture, Article 1.1
  2. Inter-American Commission on Human Rights
  3. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  4. Convention Against Torture, Article 16
  5. International Covenant on Civil and Political Rights
  6. the European Court of Human Rights
  7. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  8. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  9. http://www.kspope.com/torvic/torture1.php
  10. ibid
  11. International Rehabilitation Council for Torture Victims
  12. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  13. ibid
  14. ibid
  15. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1