Difference between revisions of "Representing Victims of Torture"
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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. | 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. | ||
| − | 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 not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, [[Right to Counsel]]), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, [[Miranda v. Arizona, 384 U.S. 436 (1966) | Miranda v. Arizona]]. Despite the success of this rights awareness campaign, academics are still struggling to determine why so few people actually invoke their right to counsel during interrogation.<ref>Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050</ref> | + | 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 not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, [[Right to Counsel]]), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, [[Miranda v. Arizona, 384 U.S. 436 (1966) | Miranda v. Arizona]], when the court ruled that when a suspect is arrested, the suspect must be provided with a advisory warning of his constitutional rights. Despite the success of this rights awareness campaign, academics are still struggling to determine why so few people actually invoke their right to counsel during interrogation.<ref>Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050</ref> |
| − | 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 their 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. | + | 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 their 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. |
===Common Law Remedies=== | ===Common Law Remedies=== | ||
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===Civil Law Remedies=== | ===Civil Law Remedies=== | ||
In civil law countries, the defense may take one of three forms: | In civil law countries, the defense may take one of three forms: | ||
| − | * '''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. | + | * '''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. |
* '''Absolute Defense''' - A defense that rejects statements or concessions given under conditions of violence and mistreatment. | * '''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 perpetrators under the auspices of the prosecution by submitting a complaint. | * '''Disciplinary Action Against Perpetrators''' - Criminal or civil disciplinary action can be taken against the perpetrators 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 defenses above. In all cases, a | + | It is possible to pursue the three actions simultaneously, and any of these may be added to the defenses above. In all cases, a 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. |
===Collateral Remedies=== | ===Collateral Remedies=== | ||
| − | In both civil and common law countries, a defendant may have an independent civil action for damages against the state or the police. For instance, in the United States, a defendant who is tortured by a police officer may have a separate civil law remedy for violation of their constitutional rights under 42 USC | + | In both civil and common law countries, a defendant may have an independent civil action for damages against the state or the police. For instance, in the United States, a defendant who is tortured by a police officer may have a separate civil law remedy for violation of their constitutional rights under 42 USC 1983 <ref>The rules surrounding state liability under 42 USC 1983 are extremely complex and outside the scope of Defense Wiki.</ref>. Similarly, a victim of torture may have a tort action under a theory of battery. |
===Requesting medical and psychological treatment for client=== | ===Requesting medical and psychological treatment for client=== | ||
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===International Remedies=== | ===International Remedies=== | ||
| − | Article 15 of the Convention Against Torture states that "Each 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 | + | Article 15 of the Convention Against Torture states that "Each 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> Convention Against Torture </ref>. |
Article 20 of the Convention notes that if the Committee Against Torture receives reliable information indicating that torture is being systematically practised in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations with regard to 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. After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. Under Article 22, 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 their case is already pending in an international court or if they have not already exhausted domestic avenues <ref> Convention Against Torture </ref>. | Article 20 of the Convention notes that if the Committee Against Torture receives reliable information indicating that torture is being systematically practised in a State Party, the Committee would invite that State Party to cooperate in the examination of the information and submit observations with regard to 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. After the investigation, the Committee would transmit the findings to the State Party concerned together with any comments or suggestions. Under Article 22, 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 their case is already pending in an international court or if they have not already exhausted domestic avenues <ref> Convention Against Torture </ref>. | ||
