Difference between revisions of "Representing Victims of Torture"

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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 tortured either for confessions or for extra-judicial punishment.
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{{Languages|Representing Victims of Torture}}
  
==What is Torture?==
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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>https://www.amnesty.org/en/latest/research/2016/02/annual-report-201516/</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.
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. <ref> http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>. Ill-treatment may be considered torture or inhuman and degrading treatment, depending on the facts. This guide primarily focuses on the class of treatments that are called torture, although many of these guidelines would also apply to inhuman and degrading treatment and other forms of mistreatment.
 
  
The question of whether any class of treatments is torture is often difficult to answer. In one court a given class of treatments may constitute torture, while in another court, they may not.  
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==Identifying Victims of Torture==
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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.
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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>
  
===Convention Against Torture===
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Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.
There are several international treaties which prohibit the use of torture. 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:
 
  
<blockquote> "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." <ref>Convention Against Torture, Article 1.1</ref></blockquote>
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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>
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Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.
  
The definition of torture contains the following elements, all of which must be satisfied in order for torture to exist:
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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>
  
==== 1. An intentional act====
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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.
  
The first element of torture under CAT is an intentional act. Webster's English Dictionary defines intent as a clearly formulated or planned purpose <ref> http://www.merriam-webster.com/netdict/intent </ref>.  Thus a policeman hitting a suspect during interrogation is an intentional act, whereas if a prisoner got sick in prison due to prison conditions, the state may not be implicated.  Yet the Convention Against Torture reads the intent requirement broadly, indicating that no State Party "shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture" <ref> Convention Against Torture, Article 3 </ref>. Thus, even if the State doesn't sponsor torture in its own country, it has a responsibility under CAT not to send people to places where it is quite possible torture would occur, or risk being considered acting with intent to torture.  Despite this prohibition, the US, among other countries, has been practicing extraordinary rendition, whereby people are arrested in one place and then sent to another for interrogation, which often involves torture. A 2006 Resolution drafted by the Parliamentary Assembly of the Council of Europe condemned the US for its methods of combating terrorism, and denounced extraordinary rendition <ref> http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/ERES1507.htm </ref>. Yet the US and other offending countries have yet to be held accountable, and the victims have had no recourse in US courts <ref> http://www.democracynow.org/2009/11/3/appeals_court_rules_in_maher_arar </ref>.
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==Investigating and Documenting Torture: The Istanbul Protocol==
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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
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http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf </ref>
  
The European Court of Human Rights (ECHR) has made the intent requirement easier to satisfy by creating a rebuttable presumption of torture for those who are injured while in police custody. In Selmouni v. France, the ECHR noted that "where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the State to provide a plausible explanation of how those injuries were caused" <ref> Selmouni v. France, 29 E.H.R.R. 403, 426 (2000) </ref>.
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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.  
  
Under CAT the State has an obligation not only to refrain from acting, but also has an obligation to prevent torture under Article 16.  Thus the State can be held responsible for its omissions (failing to take effective measures to prevent torture from occurring/failing to prosecute perpetrators/failing to investigate allegations) <ref> Convention Against Torture, Article 16 </ref>. For example, in Mahmut Kaya v. Turkey, the ECHR held the state responsible for failing to prevent the ill-treatment " and death "of the applicant"s brother by unknown persons, because the authorities had been informed of the risk by the deceased himself <ref> Mahmut Kaya v. Turkey, Judgement, 28 March 2000, nyr, "115-116. </ref>. Article 2 of the Inter-American Convention describes torture as any act intended to "obliterate the personality of the victim or to diminish his physical or mental capacities even if they do not cause physical pain or mental anguish" <ref> Inter-American Convention to Prevent and Punish Torture </ref>. It seems that intent can be inferred, as in one case, the Inter-American Court held a State accountable for torture based merely on autopsies. <ref> Morales v. Guatemala, Judgment of March 8, 1998, Inter-Am. Ct. H.R. (Ser. C) NO.37 (1998), " 134 </ref>.
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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>
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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>
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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:
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1. updates on the progress of the investigation;
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2. information on all key hearings in the investigation and prosecution of the case;
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3. updates on the suspected perpetrator (whether he/she has been identified, arrested etc.);
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4. contact information for advocacy and treatment groups that might assist the victim;
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5. the right to refuse questioning, to stop the investigation, or to take a break;
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6. protection, not only for the victim, but also for the victim's family;
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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>
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===Physical Evidence of Torture===
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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.
  
====2. Severe pain or suffering====
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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.
  
The second element of torture under CAT is severe pain or suffering. There are several tests used to determine whether an act is severe enough to constitute torture.  One approach is to distinguish between torture and inhuman or degrading treatment.  The Convention Against Torture prohibits inhuman and degrading treatment as well as torture.<ref> Convention Against Torture, Article 16</ref>. A single treatment may be both torture and inhuman and degrading treatment. The distinction between torture and inhuman or degrading treatment is essentially subjective, and is based on the intensity of the suffering inflicted.  Thus, in Ireland v. UK, the European Court of Human Right (ECHR) ruled that acts of inhuman and degrading treatment must attain a "minimum level of severity," whereas torture must involve "serious and cruel suffering."  The Court can consider the duration of the treatment, the physical effects of the treatment, the mental effects of the treatment, and the sex, age and state of health of the victim in making the assessment <ref> Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167 </ref>.  The ECHR also requires consideration of 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 <ref>http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.  The Human Rights Committee of the International Covenant on Civil and Political Rights also noted 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"<ref>International Covenant on Civil and Political Rights </ref>.  This Committee also stated that corporal punishment constitutes cruel, inhuman and degrading treatment <ref> Communication No. 759/1997, G. Osbourne v. Jamaica (Views adopted on 15 March 2000), in UN doc.  GAOR, A/55/40 (vol. 11), p. 138, para. 9.1 </ref>.
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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.  
  
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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>
  
A second approach to defining what constitutes severe pain is to view human contact more broadly, seeing any contact as potentially a violation of the right to physical and psychological integrity  <ref> I-A Court HR, Cae of Loayza Tamayo v. Peru, Judgment of September 17, 1997, in OAS doc. OAS.Ser.L/V/III39, doc 5, Annual Report of the Inter-American Court of Human Rights 1997, p. 211, para. 57 </ref>.  This is also a subjective test, but it may be easier to convict people of torture under it than the other test.
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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 Istanbul Protocol, ¶ 131 </ref>
  
====3. Committed for wrongful purpose====
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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.
  
The third element of torture under CAT is a wrongful purpose.  This purpose distinguishes torture from other forms of ill treatment, because torture is an act whereby someone attempts to destroy the victim"s identity, and thus it is not a generalised or accidental act. <ref> The Definition of Torture: Proceedings of an Expert Seminar.  Association for the Prevention of Torture.  November 10-11, 2001 </ref>.  In order to satisfy this element, the act must be done for such purposes as obtaining information or a confession, punishment for an act the victim 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" <ref> Convention Against Torture, Article 1 </ref>.  This list has generally viewed as examples as opposed to an exhaustive list.  Many countries have interpreted the purpose requirement differently, with some countries eliminating it altogether.
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===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>===
  
====4. State action====
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Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). <ref>
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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>
  
The fourth element of torture under CAT is that there must be "State action". The Convention Against Torture, Article 16 requires States to prevent acts committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. <ref> Convention Against Torture, Article 16 </ref>.  The U.N. Special Rapporteur on Torture, Nigel S. Rodley, interprets the state action requirement to be met when public officials are "unable or unwilling to provide effective protection from illtreatment (i.e. fail to prevent or remedy such acts), including ill-treatment by non-State actors" <ref> Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002) </ref>.
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To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.
  
Although under CAT, torture by definition requires state action, private actors can be implicated in certain instances.  For example, if the individual violates Common Article 3 of the 1949 Geneva Conventions or crimes against humanity.  Yet even in these instances, a link to an organization (to a party to the conflict or to a group carrying out attacks on the civilian population as part of a policy) is necessary for individual criminal responsibility <ref> The Definition of Torture: Proceedings of an Expert Seminar.  Association for the Prevention of Torture.  November 10-11, 2001 </ref>.  The International Criminal Tribunals have upheld this loose view of the state action requirement.  <ref> Prosecutor v. Zenjil Delalic et al, Case no. IT-96-21-T, 16 November 1998, See also Prosecutor v. Furundjia, Case no. IT-95-17/1-T, 10 December 1998 </ref>.
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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.
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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>
  
The Inter-American Court has generally upheld State's obligation to protect individuals from torture, even if not committed through any official capacity. For example, in Velasquez
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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),
Rodriguez v. Honduras, the Court held the State responsible for "acts of its agents undertaken in their official capacity and for their omissions, even when those agents act outside of the
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available at http://www.kspope.com/torvic/torture1.php </ref>
sphere of their authority or violate international law" <ref> Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4 </ref>.
 
  
====5. Not arising out of lawful sanctions====
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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>
The  fifth element of torture under CAT is that the treatment cannot arise out of lawful sanctions. Lawful sanctions include judicially imposed sanctions and other enforcement actions authorized by law, including the death penalty, but do not include sanctions that defeat the object and purpose of the Convention Against Torture to prohibit torture. This provision has been criticized for undermining the universality of CAT, as practices that may be lawful in some countries may be unlawful in others.  The U.N. Special Rappoteur on Torture, Nigel S. Rodley, attempted to narrow the lawful sanction element by interpreting lawful sanctions as practices that the international community widely accepts as permissible sanctions, such as imprisonment <ref> Report of the Special Rapporteur, Sir Nigel S. Rodley, submitted pursuant to Commission On Human Rights Resolution 1995/37 B, Question of the Human Rights of All Persons Subjected to any Form of Detention or Imprisonment, In Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, E/CN.4/1997/7, "85 (1997) </ref>.
 
  
===Torture Under Domestic Laws===
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===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>===
Article 1 of the Convention Against Torture sets forth minimum standards for defining torture. In the same Article, it explicitly permits individual states to enact more expansive definitions of torture, stating that its definition "is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application" <ref> Convention Against Torture, Article 1 </ref>. If countries devise their own, more expansive, definition, the CAT definition will bind them in both domestic and international disputes.
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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>
  
===Other Treaties that Prohibit Torture===
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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.
Several other international treaties prohibit torture as well:
 
* Universal Declaration of Human Rights, Article 5
 
* The International Covenant on Civil and Political Rights, Article 7
 
* Common Article 3 of the four Geneva Conventions of 1949 (prohibiting torture in all armed conflicts)
 
* The Rome Statute of the International Criminal Court (ICC), Articles 7-8. 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.
 
* European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 3
 
* American Convention on Human Rights, Article 5
 
* Inter-American Convention to Prevent and Punish the Crime of Torture, Article 2
 
  
===Standard Minimum Rules for the Treatment of Prisoners===
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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.  
The First United Nations Congress on the Prevention of Crime and the Treatment of Offenders adopted the Standard Minimum Rules for the Treatment of Prisoners, and the Economic and Social Council approved it in 1977. The document set out basic standards on how to treat prisoners, including conditions and access to help.  For example, Article 93 noted that "For the purposes of his defence, an untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to his defence and to prepare and hand to him confidential instructions" <ref> Standard Minimum Rules for the Treatment of Prisoners</ref>.  It is generally extremely important that prisoners have access to legal services, especially for those who have been tortured, as they may be more vulnerable than other types of prisoners.
 
  
==Identifying Victims of Torture==
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During this interview the lawyer must find out all relevant information including:
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- The client's response to the allegations leveled against him.
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- The names of the officers who arrested him and the investigating officer.
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- What the arresting officers said to him at the time of the arrest.
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- What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning.
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- 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.)
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- 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.)
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- 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.).
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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.
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''Client Interview Checklist'':
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- Exact time and date of arrest
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- Details of the arrest: number of people involved, role of each in the arrest and, if possible, the name and occupation of each
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- Words exchanged, and rights invoked at arrest
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- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody
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- Language used by law enforcement officials, how the client understood the language used
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- 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
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- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer
  
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 the degree of suffering 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.  For example, regarding children, the International Covenant on Civil and Political Rights states that "every child shall have, without any discrimination as to race, colour, 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" <ref> The International Covenant on Civil and Political Rights, Article 24 </ref>.  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 offences committed by persons below eighteen years of age" <ref> The UN Convention on the Rights of the Child, Article 37 </ref>.  At this point, the Convention does not provide for individual complaint mechanisms, however, thus CAT may provide the only method of redress for individual children.
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- Time and location of torture
  
In certain cases, systematic torture of a particular group will allow the criminal defense attorney to utilize additional international mechanisms.  The Convention on the Prevention and Punishment of the Crime of Genocide, adopted by the United Nations General Assembly in December of 1948, included "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> Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2 </ref>.  The Rome Statute of the International Criminal Court (ICC) incorporates this definition of genocide as well a definition of crimes against humanity which includes torture.  As soon as a State becomes a party to the Statute, it accepts 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 <ref> The Rome Statute of the International  Criminal Court </ref>.
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- Details regarding anyone present during the torture (whether or not they participated)
  
===Istanbul Protocol===
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- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)
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 Convention Against Torture, the State should ensure that its "competent authorities proceed to a prompt and impartial investigation" of any torture allegations <ref> Convention Against Torture, Article 12 </ref>.  Similarly, according to the Istanbul Protocol, the State should appoint a primary investigator (separately from providing access to legal services) 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:
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- Details of all pressures or threats constituting mental or psychological torture
  
#Circumstances leading up to the torture
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- Details of all marks personally observed by the lawyer
#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
 
#Description of any physical injuries
 
#Description of detention facilities
 
  
The State should also provide the following information to the alleged torture victim during the investigation:
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- Information about all possible witnesses (bystanders, co-prisoners)
  
#Updates on the progress of the investigation
+
===Victim Responses During Interviews===
#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
 
#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
 
#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>.  Detainees or their lawyers relatives also have a right to request a medical evaluation to seek evidence of torture and ill-treatment.  The detainees" lawyers should be present during the request for examination and post-examination transport of the detainee <ref> Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. </ref>.
 
  
===Physical Evidence of Torture===
+
====Silent Clients====
 +
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).
  
As the Istanbul Protocol noted, most torture occurs when people are held in some form of custody, where preservation of physical evidence or unrestricted access may be initially
+
====Talkative Clients====
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, it should be secured and only the investigator should have access. All evidence must be properly collected and labelled. 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.
+
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.
 +
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.
  
The investigator should also order a physical examination of the alleged torture victim as soon as possible.  If possible, the medical examiner should 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.  It is important to note, however, that the absence of physical evidence does not necessarily suggest that torture did not occur, since many violent acts frequently leave no marks or permanent scars.  The medical examiner should take photographs if possible, and should note if the examination was not done under bright light <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment </ref>.
 
  
===Psychological Evidence of Torture===
+
==A Lawyer’s Responsibilities When Representing Victims of Torture==
  
Studies show that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD) <ref> 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 </ref>. To prevent the victim from re-experiencing the trauma, the investigator should explain what he or she should expect prior to the medical examination.
+
====Ethical Obligations====
 +
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>
 +
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.
  
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.  
+
====Communication====
 +
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.  
  
Victims may also 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 </ref>
+
====Presenting Defenses====
 +
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.
  
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> ttp://www.kspope.com/torvic/torture1.php  </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 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.
  
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, 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. <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  </ref>.
+
====Requesting medical and psychological treatment for the client====
 +
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.
 +
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.
  
==Interviewing Torture Victims and Gathering Evidence==
 
  
The lawyer has a right to interview his client in private without any police officer or prison officer present. 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.  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.
+
==Available Remedies==
 +
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.  
  
During this interview the lawyer must find out all relevant information including:
+
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.
*The client's response to the allegations leveled against him
 
*The names of the officers who arrested him and the investigating officer
 
*What the arresting officers 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:''
+
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.
*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), 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.  Also, 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 narration is over to ask further questions.
+
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>
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).
 
  
Conversely, 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  later conversation.  There can occasionally, but not always, be a tendency to exaggerate.  Also explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators). Third, have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow.  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 or legislation which 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 above.
+
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.
  
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.
+
===Common Law Countries===
?In both of the above cases, by the end of the interview the lawyer should have the following information:
 
*The time and place of the events
 
*The details of anyone present during the torture (whether or not they participated)
 
*The exact role of each person or party involved, and especially, the nature and number of blows
 
*The details of all pressures or threats constituting mental or psychological torture
 
*The details of all marks personally seen
 
*The details of all possible witnesses (bystanders, co-prisoners)
 
  
Following the interview, a doctor should be called for expertise, and, if necessary, witnesses found from whom to take statements or cite, and then the defense should be prepared.
+
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>
  
==Representing Victims of Torture==
+
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>
 +
There are several opportunities to raise this defense in a common law system:
 +
 +
- '''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.
  
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>Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment </ref>
+
- '''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.
  
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. 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.
+
- '''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.
  
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.
+
- '''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.
  
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>
+
===Civil Law Countries===
 +
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.
  
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.
+
'''[[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.
  
===Common Law Remedies===
+
'''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.
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:
 
* '''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:
 
** '''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.
 
** '''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.
 
**'''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.
 
** '''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.
 
  
===Civil Law Remedies===
+
'''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.
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.
 
* '''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.
 
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 " 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.
+
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.
 +
 
 +
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>
 +
 
 +
====Civil Law Countries====
 +
''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.
 +
 
 +
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
 +
http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e </ref>
 +
 
 +
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.
  
 
===Requesting medical and psychological treatment for client===
 
===Requesting medical and psychological treatment for client===
Line 182: Line 192:
 
===International Remedies===
 
===International Remedies===
  
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, Article 15 </ref>.
+
====Use of International Principles in Domestic Litigation====
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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.
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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.
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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>
  
The Convention also 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 concernedIf 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 suggestionsIf 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, Article 22 </ref>.
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In a national court context, these international law-related arguments are not obviously persuasiveHowever, 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 reasoningThe 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.
  
==Common Methods of Torture Around the World==
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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.
  
*''' Blunt trauma''', such as a punch, kick, slap, whipping, a beating with wires or truncheons or falling down;
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====Recourse to International Mechanisms====
*'''Positional torture,''' using suspension, stretching limbs apart, prolonged constraint of movement, forcedpositioning;
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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.
*'''Burns''' with cigarettes, heated instruments, scalding liquid or a caustic substance;
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*'''Electric shocks''';
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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>
*'''Asphyxiation''', such as wet and dry methods, drowning, smothering, choking or use of chemicals;
 
*'''Crush injuries''', such as smashing fingers or using a heavy roller to injure the thighs or back;
 
*'''Penetrating injuries''', such as stab and gunshot wounds, wires under nails;
 
*'''Chemical exposure''' to salt, chilli pepper, gasoline, etc. (in wounds or body cavities);
 
*'''Sexual violence''' to genitals, molestation, instrumentation, rape;
 
*'''Crush injury''' or traumatic removal of digits and limbs;
 
*'''Medical amputation''' of digits or limbs, surgical removal of organs;
 
*'''Pharmacological torture''' using toxic doses of sedatives, neuroleptics, paralytics, etc.;
 
*'''Conditions of detention''', such as a small or overcrowded cell, solitary confinement, unhygienic conditions, no access to toilet facilities, irregular or contaminated food and water, exposure to extremes of temperature, denial of privacy and forced nakedness;
 
*'''Deprivation of normal sensory stimulation''', such as sound, light, sense of time, isolation, manipulation of brightness of the cell, abuse of physiological needs, restriction of sleep, food, water, toilet facilities, bathing, motor activities, medical care, social contacts, isolation within prison, loss of contact with the outside world (victims are often kept in isolation in order to prevent bonding and mutual identification and to encourage traumatic bonding with the torturer);
 
*'''Humiliation,''' such as verbal abuse, performance of humiliating acts;
 
*'''Threats of death,"' harm to family, further torture, imprisonment, mock executions;
 
*'''Threats of attack''' by animals, such as dogs, cats, rats or scorpions;
 
*'''Psychological techniques''' to break down the individual, including forced betrayals, accentuating feelings of helplessness, exposure to ambiguous situations or contradictory messages;
 
*'''Violation of taboos''';
 
*'''Behavioural coercion''', such as forced engagement in practices against the religion of the victim (e.g. forcing Muslims to eat pork), forced harm to others through torture or other abuses, forced destruction of property, forced betrayal of someone placing them at risk of harm;
 
*'''Forcing the victim to witness torture"' or atrocities being inflicted on others <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment </ref>.
 
  
 
== Codes ==
 
== Codes ==
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== References ==
 
== References ==
 
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<references/>
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{{Languages|Representing Victims of Torture}}

Latest revision as of 11:41, 4 November 2016

Globe3.png English

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.[1]. 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 tortured either for confessions or for extra-judicial punishment.

Identifying Victims of Torture

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. 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. [2]

Identifying and tracking torture cases will also help uncover patterns of abuse being directed at a particular group of victims.

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.”[3]

Currently, the UNCRC does not provide for individual complaint mechanisms, however, the CAT may provide the only method of redress for individuals.

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. [4]

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.

Investigating and Documenting Torture: The Istanbul Protocol

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.[5]

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.

According to the CAT, the State should ensure that its “competent authorities proceed to a prompt and impartial investigation” of any torture allegations.[6] 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. [7] 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:

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 for the victim, but also for 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. [8]

Physical Evidence of Torture

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.

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. [9]

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.[10]

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.

Psychological Evidence of Torture [11]

Studies have found that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). [12] Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses.[13]

To prevent the victim from re-experiencing the trauma, an investigator should explain what he or she should expect prior to the medical examination.

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. In addition to PTSD, torture victims may suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders.[14]

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.[15]

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.[16]

Interviewing Torture Victims and Gathering Evidence[17]

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.[18]

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.

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.

During this interview the lawyer must find out all relevant information including: - The client's response to the allegations leveled against him. - The names of the officers who arrested him and the investigating officer. - What the arresting officers said to him at the time of the arrest. - What questioning, if any, the client has been subjected to since he was arrested and the parties who conducted that questioning. - 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.) - 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.) - 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.).

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 involved, role of each in the arrest and, if possible, the name and occupation of each

- Words exchanged, and rights invoked at arrest

- Details of placement into custody: whether the client had knowledge of the infraction when being placed into custody

- Language used by law enforcement officials, how the client understood the language used

- 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

- Judicial follow-up: transfers to courtroom, summons, notifications, access to a lawyer

- Time and location of torture

- Details regarding anyone present during the torture (whether or not they participated)

- Exact role of each person or party involved,especially the nature and number of blows inflicted by each (if applicable)

- Details of all pressures or threats constituting mental or psychological torture

- Details of all marks personally observed by the lawyer

- Information about all possible witnesses (bystanders, co-prisoners)

Victim Responses During Interviews

Silent Clients

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).

Talkative Clients

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. 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.


A Lawyer’s Responsibilities When Representing Victims of Torture

Ethical Obligations

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.[19] 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.

Communication

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.

Presenting Defenses

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.

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.

Requesting medical and psychological treatment for the client

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. 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.


Available Remedies

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.

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.”[20] This provision is closely connected with the right against self-incrimination in Article 14(3)(g) International Covenant of Civil and Political Rights.

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.

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.[21]

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.

Common Law Countries

The most common method of defense is to argue that the defendant’s confession should be excluded because it was produced by illegal means.[22]

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. [23] There are several opportunities to raise this defense in a common law system:

- 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.

- 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.

- 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.

- 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.

Civil Law Countries

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.

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. 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.

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.

Collateral Remedies

In both civil and common law countries, a defendant may have an independent civil action[24] 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.

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.[25]

Civil Law Countries

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.

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 (...).”[26]

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.

Requesting medical and psychological treatment for client

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.

International Remedies

Use of International Principles in Domestic Litigation

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.

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.

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).[27] 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.[28]

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.[29] 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.

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.

Recourse to International Mechanisms

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[30]), 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[31] or the Committee against Torture monitoring the U.N. Convention Against Torture.

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.[32] 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.[33]

Codes

Convention Against Torture

International Covenant on Civil and Political Rights

Rome Statute of the International Criminal Court

Standard Minimum Rules for Treatment of Prisoners

File:Istanbulprotocol.pdf

Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

Inter-American Convention to Prevent and Punish Torture

References

  1. https://www.amnesty.org/en/latest/research/2016/02/annual-report-201516/
  2. The Torture Reporting Handbook, 3.4.2, at http://www.essex.ac.uk/torturehandbook/english.htm
  3. The UN Convention on the Rights of the Child, Article 37
  4. Article 3 Rome Statute
  5. Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, p. 1, at http://www.ohchr.org/Documents/Publications/training8Rev1en.pdf
  6. Article 12
  7. Istanbul Protocol, ¶ 79
  8. ttp://www.kspope.com/torvic/torture1.php
  9. Istanbul Protocol ¶ 123, 124, 125
  10. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter V Istanbul Protocol, ¶ 131
  11. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Chapter VI.
  12. http://www.kspope.com/torvic/torture1.php
  13. International Rehabilitation Council for Torture Victims, http://www.irct.org/news-and-media/irct-news/show-news.aspx?PID=13767&NewsID=2573
  14. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 259.
  15. 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), available at http://www.kspope.com/torvic/torture1.php
  16. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ¶ 310–315.
  17. 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.
  18. Istanbul Protocol, ¶ 129
  19. Available at http://www2.ohchr.org/english/law/lawyers.htm
  20. 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.
  21. http://french.cri.cn/781/2010/06/02/57s220326.htm
  22. Brown v. Mississippi, 297 U.S. 278 (1936)
  23. See Exclusionary Rule
  24. 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
  25. 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
  26. 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 http://m2bde.u-paris10.fr/content/nullité-de-la-preuve-obtenue-par-l’emploi-de-méthodes-coercitives-lors-d’un-interrogatoire-e
  27. 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.
  28. Prosecutor v. Furundzija (ICTY, 1998)
  29. 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/).
  30. For Further information refer to http://www.achpr.org/.
  31. On the procedural mechanisms, refer to http://www2.ohchr.org/english/bodies/hrc/index.htm.
  32. Convention Against Torture, Article 20
  33. Convention Against Torture, Article 22. To know more about the procedures: http://www2.ohchr.org/english/bodies/cat/
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