Difference between revisions of "Representing Victims of Torture"

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==Representing Victims of Torture==
 
==Representing Victims of Torture==
  
Principle14 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> Principle14 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."
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Lawyers have an ethical obligation to uphold the principles of justice and represent their clients to the best of their abilities. Principle14 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>
  
 
The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, [[Right to Counsel]]), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, [[Miranda v. Arizona, 384 U.S. 436 (1966) | Miranda v. Arizona]]. Despite the success of this rights awareness campaign, academics are still struggling to determine why so few people actually invoke their right to counsel during interrogation.<ref>Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050</ref>
 
The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is not appointed to represent the defendant until trial. In other cases, such as the United States and India, the defense lawyer is first appointed at arraignment. In theory the defendant may have a right to counsel that begins before arraignment. For instance, in the United States, a defendant has the right to counsel during police interrogation (See, [[Right to Counsel]]), but they must invoke the right themselves. The United States Supreme Court adopted the famous "Miranda Warnings" in the landmark case, [[Miranda v. Arizona, 384 U.S. 436 (1966) | Miranda v. Arizona]]. 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>

Revision as of 11:39, 17 June 2010

What is Torture?

Torture under International Law

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." [1]

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

  1. An intentional act
  2. Severe pain or suffering
  3. Committed for wrongful purpose
  4. By a public official or by a private person acting at the instigation of the former
  5. Not arising out of lawful sanctions

Several other international treaties prohibit torture as well:

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

The test for determining whether a treatment would constitute torture is subjective. Thus, in assessing whether a particular practice is torture, it is essential to consider the customary practices of different cultures. For example, beatings may not be considered torture in some places, while just tearing a woman's clothes in other places could be considered torture. [2]

Inhuman and Degrading Treatment

The Convention Against Torture also prohibits inhuman and degrading treatment.[3] A single treatment may be both torture and inhuman and degrading treatment. The Human Rights Committee of the International Covenant on Civil and Political Rights has stated that inhuman and degrading treatment "depends on all the circumstances of the case, such as the duration and manner of the treatment, its physical and mental effects as well as the sex, age and state of health of the victim."[4]

The European Court of Human Rights has concluded that torture can be distinguished from inhuman and degrading treatment by the degree of suffering. Although both involve "deliberate inhuman treatment causing very serious and cruel suffering."[5] torture is more severe.

Treatment

Overall, all forms of ill-treatment are prohibited under international law. This means that even where treatment is not severe enough (in legal terms) to constitute torture or inhuman or degrading treatment, the state may still be found to have violated the prohibition on ill-treatment. [6].

Torture Under Domestic Laws

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

Identifying Victims of Torture

It is important for criminal defense attorneys to identify victims of torture because specific groups, such as children, women, the elderly, or religious persons may be more vulnerable to the effects of ill-treatment, making it easier to consider 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. In certain cases, systematic torture of a particular group will allow the criminal defense attorney to utilize additional international mechanisms [7].

Istanbul Protocol

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

According to the Istanbul Protocol, the State should appoint a primary investigator to serve as the main liaison between the authorities and the alleged torture victim. In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as the following information to produce a comprehensive evaluation of the alleged torture victim:

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

The State should also provide the following 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. [8].

Physical Evidence of Torture

Psychological Evidence of Torture

Studies show that 70% of torture victims suffer from Post-Traumatic Stress Disorder (PTSD). [9]. Symptoms of PTSD include flashbacks (or intrusive thoughts), severe anxiety, insomnia, nightmares, depression and memory lapses. [10]. 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. [11]

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. [12].

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. [13].

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 insist that the client be interviewed within their presence or with a police officer within earshot who can hear what is being said between the lawyer and his client. During this interview the lawyer must find out all relevant information including:

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

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


Client Interview Checklist:

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


When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative.

When Victims remain Silent ( a reaction developed to deal with trauma)

1) Do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf. A good interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details (for example, colour and brand of the police car, weather that day, what people nearby were wearing). These details may initially seem insignificant, however, giving small details often makes it easier to speak of violence.

2) Never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened.

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

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


When Victims are Talkative

1) It is important to allow for an initial 'purging' phase during the interview, where the client is able to 'get it all out.' Take advantage of this time to identify elements that can be used to direct the later conversation. There can occasionally, but not always, be a tendency to exaggerate.

2) Explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators)

3) Have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow.

4) 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.

5) 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. 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. Principle14 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." [14]

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. 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.[15]

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

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. 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. 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 in limine excluding any evidence of a confession induced through torture.
    • 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 incorrect 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. Refer to Section V
  • Absolute Defense - A defense that rejects statements or concessions given under conditions of violence and mistreatment.
  • Disciplinary Action Against Perpetrators - Criminal or civil disciplinary action can be taken against the 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 CONCRETE file is needed before moving forward. This is the one case where the burden of proof lies upon the defense and this proof is, usually, quite complex.

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 Section 1983.[16] 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

A state can be held responsible not only for actions committed by its officials amounting to torture, but also for its omissions (failing to take effective measures to prevent torture from occurring/failing to prosecute perpetrators/failing to investigate allegations). [17].

Some considerations:

  • Is the country a signatory to CAT?
  • What are the requirements for bringing an action?
  • What are the local remedies?
  • Where do you bring the action?
  • What are the international remedies?

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.

Codes

Convention Against Torture

References

  1. Convention Against Torture, Article 1.1
  2. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  3. Convention Against Torture, Article 16
  4. International Covenant on Civil and Political Rights
  5. the European Court of Human Rights
  6. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  7. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1
  8. http://www.kspope.com/torvic/torture1.php
  9. ibid
  10. International Rehabilitation Council for Torture Victims
  11. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  12. ttp://www.kspope.com/torvic/torture1.php
  13. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  14. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
  15. Leo, Richard A., Miranda's Revenge: Police Interrogation as a Confidence Game. Available at SSRN: http://ssrn.com/abstract=1134050
  16. The rules surrounding state liability under 42 USC 1983 are extremely complex and outside the scope of Defense Wiki.
  17. http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1