Difference between revisions of "Representing Victims of Torture"

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===Common Law Remedies===
 
===Common Law Remedies===
 
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:
 
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:
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* '''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.
 
** '''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.
 
** '''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.

Revision as of 20:40, 4 July 2010

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]. 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. 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.

What is Torture?

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. [2]. 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.

Convention Against Torture

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:

"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." [3]

The definition of torture contains the following elements, all of which must be satisfied in order for torture to exist:

1. An intentional act

The first element of torture under CAT is an intentional act. Webster's English Dictionary defines intent as a clearly formulated or planned purpose [4]. 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" [5]. 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 [6]. Yet the US and other offending countries have yet to be held accountable, and the victims have had no recourse in US courts [7].

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" [8].

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) [9]. 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 Cite error: Invalid <ref> tag; refs with no name must have content. 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" [10]. 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. Cite error: Invalid <ref> tag; refs with no name must have content.

2. Severe pain or suffering

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.[11]. 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 [12]. 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 [13]. 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"[14]. This Committee also stated that corporal punishment constitutes cruel, inhuman and degrading treatment [15].


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 [16]. This is also a subjective test, but it may be easier to convict people of torture under it than the other test.

3. Committed for wrongful purpose

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. [17]. 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" [18]. 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.

4. State action

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. [19]. 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" [20].

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 [21]. The International Criminal Tribunals have upheld this loose view of the state action requirement. [22].

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 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 sphere of their authority or violate international law" [23].

5. Not arising out of lawful sanctions

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 Cite error: Invalid <ref> tag; refs with no name must have content.

Torture Under Domestic Laws

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" [24]. If countries devise their own, more expansive, definition, the CAT definition will bind them in both domestic and international disputes.

Other Treaties that Prohibit Torture

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

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" [25]. 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

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" [26]. 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" [27]. 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.

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 [28]. 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 [29].

Istanbul Protocol

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

According to the Convention Against Torture, the State should ensure that its "competent authorities proceed to a prompt and impartial investigation" of any torture allegations [30]. 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:

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

The State should also provide the following 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 to the victim but also to the victim's family
  7. Psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. [31]. 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 [32].

Physical Evidence of Torture

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 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.

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 [33].

Psychological Evidence of Torture

Studies show that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD) [34]. Symptoms of PTSD include flashbacks, intrusive thoughts, severe anxiety, insomnia, nightmares, depression and memory lapses [35]. To prevent the victim from re-experiencing the trauma, the 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.

Victims may also suffer from other disorders such as personality disorders, anxiety disorders, and bipolar disorders. [36]

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 [37].

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. [38].

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.

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 by whom the questioning was done
  • Whether he has made any sort of statement and, if he has, what was it (i.e. was it made orally or was it a handwritten statement; was it a warned and cautioned statement which was typed and read over to him before he signed it; has the statement been confirmed before a magistrate? etc.)
  • If a statement has been made, whether it was made freely and voluntarily (If the client says he was physically maltreated or threatened in order to force him to confess, the lawyer should carefully note down the details of the alleged maltreatment or threats. The client should also be asked to show the lawyer any injuries and bodily marks which resulted from his mistreatment and the lawyer must carefully note down his observations about these.)
  • If a medical practitioner has already given medical treatment to his client, the lawyer should ask the police for a copy of the medical report (where the client has already made a statement to the police and this has been recorded, the lawyer should ask the police to allow him to see this recorded statement and he should request that he be provided with a copy of this statement).

Whether the aim is preparing an absolute defense for the client or advancing and proving procedural irregularity, it is key to ask the client certain questions in an interview to develop a defense. Even with time and experience, given a number of cases or detention visits, all lawyers forget a few important points or questions. This is why a small checklist can be a useful reminder.

Client Interview Checklist:

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

When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative. When victims remain silent (a reaction developed to deal with trauma), 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. 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.

Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview. All potentially interfering personal feelings or conflicts of interests must be put aside. ?In both of the above cases, by the end of the interview the lawyer should have 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.

Representing Victims of Torture

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." [39]

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.

Lawyers have an implicit duty of communication, as being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to maintain the strategy throughout representation in this manner. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.

The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, Right to Counsel), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, Miranda v. Arizona, 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.[40]

In developing countries where torture is routinely used as an interrogation tactic to forcibly extract confessions, the criminal defense lawyer must be prepared to defend their client in many ways. Given the state's monopoly on legitimate violence, it is able to provide the police force with very clear parameters about what is and what is not acceptable. A criminal defense lawyer should argue that only force strictly necessary for the interrogation of a person or for his continued cooperation with the police is legitimate.

Common Law Remedies

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.[41] 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.[42] 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

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

[43]. Similarly, a victim of torture may have a tort action under a theory of battery.

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

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" [44].

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 concerned. If necessary, the Committee may also designate one or more of its members to make a confidential inquiry and report to the Committee [45]. 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 their case is already pending in an international court or if they have not already exhausted domestic avenues [46].

Common Methods of Torture Around the World

  • Blunt trauma, such as a punch, kick, slap, whipping, a beating with wires or truncheons or falling down;
  • Positional torture, using suspension, stretching limbs apart, prolonged constraint of movement, forcedpositioning;
  • Burns with cigarettes, heated instruments, scalding liquid or a caustic substance;
  • Electric shocks;
  • 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 engagementin 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 [47].

Codes

Convention Against Torture

International Covenant on Civil and Political Rights

Rome Statute of the International Criminal Court

Standard Minimum Rules for the 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. http://thereport.amnesty.org/facts-and-figures
  2. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  3. Convention Against Torture, Article 1.1
  4. http://www.merriam-webster.com/netdict/intent
  5. Convention Against Torture, Article 3
  6. http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta06/ERES1507.htm
  7. http://www.democracynow.org/2009/11/3/appeals_court_rules_in_maher_arar
  8. Selmouni v. France, 29 E.H.R.R. 403, 426 (2000)
  9. Convention Against Torture, Article 16
  10. Inter-American Convention to Prevent and Punish Torture
  11. Convention Against Torture, Article 16
  12. Eur. Court HR, Case of Ireland v. the United Kingdom, judgment of 18 January 1978, Series A, No. 25, p. 66, para.167
  13. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  14. International Covenant on Civil and Political Rights
  15. 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
  16. 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
  17. The Definition of Torture: Proceedings of an Expert Seminar. Association for the Prevention of Torture. November 10-11, 2001
  18. Convention Against Torture, Article 1
  19. Convention Against Torture, Article 16
  20. Office of the United Nations High Commissioner for Human Rights, Human Rights Fact Sheet: No. 4 Combating Torture, at 34 (May 2002)
  21. The Definition of Torture: Proceedings of an Expert Seminar. Association for the Prevention of Torture. November 10-11, 2001
  22. 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
  23. Velasquez Rodriguez v. Honduras, (1988) Inter-Am.Ct.H.R. (Ser C) No.4
  24. Convention Against Torture, Article 1
  25. Standard Minimum Rules for the Treatment of Prisoners
  26. The International Covenant on Civil and Political Rights, Article 24
  27. The UN Convention on the Rights of the Child, Article 37
  28. Convention on the Prevention and Punishment of the Crime of Genocide, Art. 2
  29. The Rome Statute of the International Criminal Court
  30. Convention Against Torture, Article 12
  31. http://www.kspope.com/torvic/torture1.php
  32. Istanbul Protocol: Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
  33. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  34. http://www.kspope.com/torvic/torture1.php
  35. International Rehabilitation Council for Torture Victims
  36. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  37. ttp://www.kspope.com/torvic/torture1.php
  38. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  39. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  40. Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050
  41. Brown v. Mississippi, 297 U.S. 278 (1936)
  42. See, exclusionary rule
  43. The rules surrounding state liability under 42 USC 1983 are extremely complex and outside the scope of Defense Wiki.
  44. Convention Against Torture, Article 15
  45. Convention Against Torture, Article 20
  46. Convention Against Torture, Article 22
  47. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment