https://defensewiki.ibj.org/api.php?action=feedcontributions&user=Achogan&feedformat=atomCriminal Defense Wiki - User contributions [en]2024-03-29T10:30:47ZUser contributionsMediaWiki 1.34.1https://defensewiki.ibj.org/index.php?title=Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rights&diff=4550Second Optional Protocol to the International Covenant on Civil and Political Rights2010-07-13T13:34:55Z<p>Achogan: </p>
<hr />
<div>Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989<br />
<br />
<br />
The States Parties to the present Protocol,<br />
<br />
Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,<br />
<br />
Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966,<br />
<br />
Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,<br />
<br />
Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,<br />
<br />
Desirous to undertake hereby an international commitment to abolish the death penalty,<br />
<br />
Have agreed as follows:<br />
<br />
'''Article 1'''<br />
<br />
*1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.<br />
<br />
*2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.<br />
<br />
'''Article 2'''<br />
<br />
*1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.<br />
<br />
*2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime.<br />
<br />
*3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory.<br />
<br />
'''Article 3'''<br />
<br />
*The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol.<br />
<br />
'''Article 4'''<br />
<br />
*With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.<br />
<br />
'''Article 5'''<br />
<br />
*With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.<br />
<br />
'''Article 6'''<br />
<br />
*1. The provisions of the present Protocol shall apply as additional provisions to the Covenant.<br />
<br />
*2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant.<br />
<br />
'''Article 7'''<br />
<br />
*1. The present Protocol is open for signature by any State that has signed the Covenant.<br />
<br />
*2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.<br />
<br />
*3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it.<br />
<br />
*4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
*5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.<br />
<br />
'''Article 8'''<br />
<br />
*1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.<br />
<br />
*2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.<br />
<br />
'''Article 9'''<br />
<br />
*The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.<br />
<br />
'''Article 10'''<br />
<br />
The Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:<br />
<br />
*(a) Reservations, communications and notifications under article 2 of the present Protocol;<br />
<br />
*(b) Statements made under articles 4 or 5 of the present Protocol;<br />
<br />
*(c) Signatures, ratifications and accessions under article 7 of the present Protocol:<br />
<br />
*(d) The date of the entry into force of the present Protocol under article 8 thereof.<br />
<br />
'''Article 11'''<br />
<br />
*1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
<br />
*2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rights&diff=4549Second Optional Protocol to the International Covenant on Civil and Political Rights2010-07-13T13:23:36Z<p>Achogan: </p>
<hr />
<div>Adopted and proclaimed by General Assembly resolution 44/128 of 15 December 1989<br />
<br />
<br />
The States Parties to the present Protocol,<br />
<br />
Believing that abolition of the death penalty contributes to enhancement of human dignity and progressive development of human rights,<br />
<br />
Recalling article 3 of the Universal Declaration of Human Rights, adopted on 10 December 1948, and article 6 of the International Covenant on Civil and Political Rights, adopted on 16 December 1966,<br />
<br />
Noting that article 6 of the International Covenant on Civil and Political Rights refers to abolition of the death penalty in terms that strongly suggest that abolition is desirable,<br />
<br />
Convinced that all measures of abolition of the death penalty should be considered as progress in the enjoyment of the right to life,<br />
<br />
Desirous to undertake hereby an international commitment to abolish the death penalty,<br />
<br />
Have agreed as follows:<br />
<br />
""Article 1""<br />
<br />
**1. No one within the jurisdiction of a State Party to the present Protocol shall be executed.<br />
<br />
**2. Each State Party shall take all necessary measures to abolish the death penalty within its jurisdiction.<br />
<br />
*""Article 2""<br />
<br />
**1. No reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime.<br />
<br />
**2. The State Party making such a reservation shall at the time of ratification or accession communicate to the Secretary-General of the United Nations the relevant provisions of its national legislation applicable during wartime.<br />
<br />
**3. The State Party having made such a reservation shall notify the Secretary-General of the United Nations of any beginning or ending of a state of war applicable to its territory.<br />
<br />
*""Article 3""<br />
<br />
The States Parties to the present Protocol shall include in the reports they submit to the Human Rights Committee, in accordance with article 40 of the Covenant, information on the measures that they have adopted to give effect to the present Protocol.<br />
<br />
*Article 4<br />
<br />
With respect to the States Parties to the Covenant that have made a declaration under article 41, the competence of the Human Rights Committee to receive and consider communications when a State Party claims that another State Party is not fulfilling its obligations shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.<br />
<br />
Article 5<br />
<br />
With respect to the States Parties to the first Optional Protocol to the International Covenant on Civil and Political Rights adopted on 16 December 1966, the competence of the Human Rights Committee to receive and consider communications from individuals subject to its jurisdiction shall extend to the provisions of the present Protocol, unless the State Party concerned has made a statement to the contrary at the moment of ratification or accession.<br />
Article 6<br />
<br />
1. The provisions of the present Protocol shall apply as additional provisions to the Covenant.<br />
<br />
2. Without prejudice to the possibility of a reservation under article 2 of the present Protocol, the right guaranteed in article 1, paragraph 1, of the present Protocol shall not be subject to any derogation under article 4 of the Covenant.<br />
<br />
Article 7<br />
<br />
1. The present Protocol is open for signature by any State that has signed the Covenant.<br />
<br />
2. The present Protocol is subject to ratification by any State that has ratified the Covenant or acceded to it. Instruments of ratification shall be deposited with the Secretary-General of the United Nations.<br />
<br />
3. The present Protocol shall be open to accession by any State that has ratified the Covenant or acceded to it.<br />
<br />
4. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
5. The Secretary-General of the United Nations shall inform all States that have signed the present Protocol or acceded to it of the deposit of each instrument of ratification or accession.<br />
<br />
Article 8<br />
<br />
1. The present Protocol shall enter into force three months after the date of the deposit with the Secretary-General of the United Nations of the tenth instrument of ratification or accession.<br />
<br />
2. For each State ratifying the present Protocol or acceding to it after the deposit of the tenth instrument of ratification or accession, the present Protocol shall enter into force three months after the date of the deposit of its own instrument of ratification or accession.<br />
<br />
Article 9<br />
<br />
The provisions of the present Protocol shall extend to all parts of federal States without any limitations or exceptions.<br />
<br />
Article 10<br />
<br />
The Secretary-General of the United Nations shall inform all States referred to in article 48, paragraph 1, of the Covenant of the following particulars:<br />
<br />
(a) Reservations, communications and notifications under article 2 of the present Protocol;<br />
<br />
(b) Statements made under articles 4 or 5 of the present Protocol;<br />
<br />
(c) Signatures, ratifications and accessions under article 7 of the present Protocol:<br />
<br />
(d) The date of the entry into force of the present Protocol under article 8 thereof.<br />
<br />
Article 11<br />
<br />
1. The present Protocol, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
<br />
2. The Secretary-General of the United Nations shall transmit certified copies of the present Protocol to all States referred to in article 48 of the Covenant.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Second_Optional_Protocol_to_the_International_Covenant_on_Civil_and_Political_Rights&diff=4548Second Optional Protocol to the International Covenant on Civil and Political Rights2010-07-13T12:31:19Z<p>Achogan: Created page with 'Second Optional Protocol to the International Covenant on Civil and Political Rights'</p>
<hr />
<div>Second Optional Protocol to the International Covenant on Civil and Political Rights</div>Achoganhttps://defensewiki.ibj.org/index.php?title=International_Law&diff=4547International Law2010-07-13T12:31:00Z<p>Achogan: /* Other Important Treaties */</p>
<hr />
<div>==Courts==<br />
*[[International Court of Justice]] (The Hague, Netherlands)<br />
**ICJ Rules of Court<br />
*[[International Criminal Court]] (The Hague, Netherlands)<br />
<br />
==Treaties==<br />
===Background===<br />
Since the United Nations was founded in 1945, the various states have drafted several tools to facilitate international law. Several of those international tools are listed here, with a focus on criminal justice and prisoners' rights. Some of these tools are called "basic principals" while others are called "covenants". Generally speaking, principals are advisory, while covenants are binding on the states. The [[International Court of Justice]] provides remedies for violations of some of these covenants.<br />
<br />
===Torture===<br />
<br />
* [[Convention Against Torture]] and Other Cruel Inhuman or Degrading<br />
Treatment or Punishment<br />
* [[Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment]]<br />
<br />
===Prisoners' Rights and Sentencing Standards===<br />
<br />
* [[Basic Principles for the Treatment of Prisoners]]<br />
* [[Standard Minimum Rules for Treatment of Prisoners]]<br />
* [[United Nations Standard Minimum Rules for Non-custodial Measures (The Tokyo Rules)]]<br />
<br />
===Other Important Treaties===<br />
*[[Convention on the Prevention and Punishment of the Crime of Genocide]]<br />
* [[International Covenant on Civil and Political Rights]]<br />
* [[Rome Statute of the International Criminal Court]]<br />
* [[Second Optional Protocol to the International Covenant on Civil and Political Rights]]<br />
* [[Universal Declaration of Human Rights]]<br />
* [[UN Basic Principles on the Independence of the Judiciary Power]]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=3202Representing Victims of Torture2010-06-16T13:38:05Z<p>Achogan: /* Representing Victims of Torture */</p>
<hr />
<div>==What is Torture?==<br />
The United Nations Convention Against Torture defines torture as:<br />
<br />
"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 [http://www.un.org/millennium/law/iv-9.htm].<br />
<br />
''Elements''<br />
<br />
1) An intentional act through which physical and mental pain and suffering is inflicted on a person<br />
<br />
2) Committed with purpose<br />
<br />
3) Committed by a public official or by a private person acting at the instigation of the former <ref>Inter-American Commission on Human Rights </ref><br />
<br />
Many international treaties prohibit torture, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. Common Article 3 of the four Geneva Conventions specifically prohibits torture in all armed conflicts. The Rome Statute of the International Criminal Court (ICC) prohibited torture, and has jurisdiction over cases alleging torture 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.<br />
<br />
<br />
'''Torture vs. Inhuman and Degrading Treatment'''<br />
<br />
The International Covenant on Civil and Political Rights did not specifically define torture, though the Human Rights Committee- the group of independent experts monitoring the Covenant's implementation- 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><br />
<br />
<br />
The European Court of Human Rights noted that the distinction signifies a degree of suffering, for while torture is more severe, both involved "deliberate inhuman treatment causing very serious and cruel suffering."<ref> the European Court of Human Rights </ref><br />
<br />
<br />
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, 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>. 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. <ref> http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref><br />
<br />
==Identifying Victims of Torture==<br />
<br />
The identity of the victim of torture is important because:<br />
<br />
**Specific groups, such as children, women, the elderly, or religious persons, may be more vulnerable to the effects of ill-treatment, making it easier to consider that the degree of suffering is severe enough to amount to torture.<br />
**It helps to identify patterns of abuse being directed at a particular group of victims.<br />
**Additional international mechanisms which are specific to particular groups can be used <ref> http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.<br />
<br />
<br />
According to the Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the State should appoint a primary investigator to serve as the main liaison between the authorities and the alleged torture victim. In doing so, the State should be sensitive to the victim's culture, language and gender. The investigator should attempt to obtain a detailed statement from the victim, color photographs of the injuries, as well as the following information to produce a comprehensive evaluation of the alleged torture victim:<br />
<br />
1) Circumstances leading up to the torture <br />
<br />
2) The dates and times of the torture<br />
<br />
3) Descriptions, and if possible names of the perpetrators<br />
<br />
4) Description of the torture, including methods and any other general patterns of abuse, including sexual abuse.<br />
<br />
5) Description of any physical injuries<br />
<br />
6) Description of detention facilities<br />
<br />
<br />
The State should also provide the following to the alleged torture victim during the investigation: <br />
<br />
1) Updates on the progress of the investigation.<br />
<br />
2) Information on all key hearings in the investigation and prosecution of the case.<br />
<br />
3) Updates on the suspected perpetrator (whether he/she has been identified, arrested etc.)<br />
<br />
4) Contact information for advocacy and treatment groups that might assist the victim.<br />
<br />
5) The right to refuse questioning, to stop the investigation, or to take a break<br />
<br />
6) Protection, not only to the victim but also to the victim's family<br />
<br />
7) Psychological counselors and other medical professionals trained in treating torture victims. When using any kind of formal, standardized equipment to conduct medical tests on suspected victims of torture, however doctors must be sensitive to the trauma. In fact, these instruments should only be used when absolutely necessary, such as when there is a legal case against the perpetrator and proof of torture is needed. <ref> http://www.kspope.com/torvic/torture1.php </ref>.<br />
<br />
<br />
''Psychological evidence of torture''<br />
<br />
One recognized sign that someone has been tortured is that he/she suffers from Post Traumatic Stress Disorder (PTSD). Studies show that 70% of torture victims suffer from PTSD. <ref> ibid </ref>. Symptoms include flashbacks (or 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. 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. <ref> Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment </ref><br />
<br />
<br />
Torture victims also often feel guilt and shame due to the humiliation they have endured. Many feel that they have betrayed themselves or their friends and family. These symptoms are normal human responses to abnormal and inhuman treatment. <ref> ibid </ref>.<br />
<br />
<br />
Children who have been tortured will have different reactions than adults, depending on their age. Children may not be able to express their feelings verbally; instead, they often express themselves behaviorally. If possible, the child should be examined by an expert in child abuse. Caregivers should be sure to care for the child, even if the child did not experience torture directly, but indirectly witnessed torture of a loved one. <ref> ibid </ref>.<br />
<br />
==Representing Victims of Torture==<br />
<br />
Even though there is a clear legal difference between torture and mistreatment, particularly as defined by international instruments, it does not make much difference to a lawyer:in practice, there is no difference between blows, physical abuses of or insupportable pressure placed on someone in order to obtain a confession, or for any other reason. A lawyer may thus represent a defendant who was tortured to obtain confession, working to discredit the confession by discussing the torture. A lawyer may also bring suit on behalf of a torture victim's behalf against his/her perpetrators.<br />
<br />
a. Importance of early access to counsel - The earlier a defendant has access to counsel, the less likely he is to become a victim of torture for confessions. Unfortunately, in some countries, an attorney is appointed to represent the defendant until trial. In other cases, the defendant may be appointed at arraignment. In the United States, a defendant has the right to counsel much earlier (Miranda Warnings), but they must invoke the right themselves. It is not clear whether defendants have a similar right to counsel at pre-trial stages in our countries. You should look into this to whatever extent you can.<br />
b. Requesting court-ordered medical examination.<br />
g. Referring defendant to appropriate medical and psychological authorities for treatment if the court does not do so.<br />
<br />
Defense strategies are the methods by which a criminal defense attorney decides to try his or her client's case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing. They should remain consistent up to the deliberations. It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer's professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client, choose and apply the best defense strategy.<br />
<br />
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. <br />
<br />
<br />
'''Client Interview'''<br />
<br />
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.<br />
During this interview the lawyer must find out all relevant information including:<br />
*The client's response to the allegations levelled against him;<br />
*The names of the officers who arrested him and the investigating officer;<br />
*What the arresting detail said to him at the time of the arrest;<br />
*What questioning, if any, the client has been subjected to since he was arrested and by whom the questioning was done;<br />
*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.)<br />
*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).<br />
*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.<br />
<br />
<br />
''Client Interview Checklist:''<br />
*Exact time and date of arrest.<br />
*Details of the arrest: number of people, role of each in the arrest and, if possible, name and occupation of each.<br />
*Words exchanged, rights evoked,<br />
*Details of placement into custody, whether or not the client knowledge of the infraction when being placed into custody<br />
*Language used, how the client understood the language used<br />
*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.<br />
*Judicial follow-up: transfers to courtroom, summons, notifications, right to a lawyer<br />
<br />
<br />
When meeting or interviewing a known victim of torture, a lawyer can often expect the victims to remain silent or be very talkative.<br />
<br />
<br />
''When Victims remain Silent ( a reaction developed to deal with trauma)''<br />
<br />
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.<br />
<br />
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.<br />
<br />
3)Pay attention to the details. The victim's understanding of the gravity of certain acts may be different from what is legally proscribed.<br />
<br />
4) Once the client has begun, do not interrupt him or her. Wait until the narration is over to ask further questions.<br />
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).<br />
<br />
<br />
''When Victims are Talkative''<br />
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.<br />
There can occasionally, but not always, be a tendency to exaggerate.<br />
Explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators)<br />
Have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow.<br />
Have a talkative victim speak of mental or psychological torture first.<br />
Make breaks during the story to explain, for example, the anti-torture treaties or legislation which exist.<br />
- If the flow is interrupted, change the subject for a time. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations.<br />
Only look at the wounds at the end.<br />
Make an inventory of places, names and witnesses as above.<br />
<br />
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.<br />
?In both of the above cases, by the end of the interview the lawyer should have information:<br />
*On the time and place of the events<br />
*On any persons present (whether or not they participated).<br />
*On the exact role of each person or party involved, and especially, the nature and number of blows.<br />
*On all pressures or threats constituting mental or psychological torture.<br />
*On all marks personally seen.<br />
*On possible witnesses (bystanders, co-prisoners).<br />
<br />
Following the interview, a doctor should be called for expertise, and, if necessary, care, witnesses found from whom to take statements or cite, and then the defense should be prepared<br />
A client who alleges they have been tortured may be able to raise several defenses to their crimes at trial. However, representing a client goes beyond merely raising defenses. <br />
<br />
<br />
'''Defenses'''<br />
<br />
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.<br />
<br />
c. Admissibility of Confessions Induced Through Torture. The most common method of defense is to argue that the defendant's confession, or a witness's confession was induced through torture.. The exclusionary principle should apply not only to the confession, but to all fruits or evidence produced as a result of the confession. This would be the case in the United States, subject to attenuation limitations as set forth in the Wong Sun case. See Exclusionary Principle page on Defense Wiki. There are several opportunities to raise this defense in a common law system<br />
*i. Arraignment / Bail - Arguing that case should be thrown out because defendant's confession was induced by torture.<br />
*ii. At trial - Arguing confession evidence and fruits of confession evidence should be excluded because they were induced by torture. Please note, in some jurisdictions the confession is STILL admissible, regardless of torture, but torture evidence is admissible to show confession is unreliable. Defense attorney must therefore collect evidence to show torture and unreliability of confession.<br />
*iii. At Appeal - If evidence was erroneously admitted at trial, the defendant should argue on appeal that this was incorrect and request a reversal of conviction based on the error.<br />
<br />
The defense can take one of three forms:<br />
Nullity. Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interroation or custody. Refer to Section V<br />
Absolute Defense. A defense that rejects statements or concessions given under conditions of violence and mistreatment.<br />
Disciplinary Action Against Perpetrators. Criminal or civil disciplinary action can be taken against the perpetuators under the auspices of the prosecution by submitting a complaint.<br />
It is possible to pursue the three actions simultaneously, and any of these may be added to the defences above.<br />
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.<br />
<br />
e. Nullity of Procedure - There is a similar procedure used in criminal cases in civil law countries. Look at the Rwanda pages on Procedural Nullity to review this material.<br />
f. Civil law remedies - Defendants may have money damages remedy against either the state (government) or perpetrator. For instance, in the United States, a defendant would have a separate civil law remedy for torture induced confessions under 42 USC Section 1983.<br />
<br />
2. International Remedies<br />
a. You can talk here about international remedies for violations of CAT><br />
b. IS the country a signatory to cat?<br />
c. If they are not, can they still be liable under a jus cogens theory?<br />
d. What are the requirements for bringing an action? Exhaustion of local remedies, etc.<br />
e. Where do you bring an action?<br />
f. What are the remedies? Money damages?<br />
g. Give an example case if you can find one.<br />
<br />
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). <ref>http://www.essex.ac.uk/torturehandbook/handbook/part_i_3.htm#pti_3_3_1 </ref>.<br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning ]<br />
<br />
== References ==<br />
<references/></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=2887Representing Victims of Torture2010-06-11T10:08:47Z<p>Achogan: /* What is Torture */</p>
<hr />
<div><br />
<br />
==What is Torture==<br />
The United Nations Convention Against Torture as:<br />
<br />
"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 [http://www.un.org/millennium/law/iv-9.htm].<br />
<br />
==Identifying Victims of Torture==<br />
<br />
==Representing Victims of Torture==<br />
<br />
== Codes ==<br />
<br />
[[Convention Against Torture]]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning ]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Representing_Victims_of_Torture&diff=2886Representing Victims of Torture2010-06-11T10:08:18Z<p>Achogan: /* What is Torture */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2467India2010-06-08T09:27:43Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Classes of Criminal Courts]]<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2466India2010-06-08T09:27:20Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Classes of Criminal Courts]]<br />
*[[Developing A Defense For Trial]] <br />
*[[Attorney-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Convention_Against_Torture&diff=2456Convention Against Torture2010-06-07T15:38:21Z<p>Achogan: </p>
<hr />
<div>CONVENTION AGAINST TORTURE<br />
and Other Cruel, Inhuman or Degrading<br />
Treatment or Punishment<br />
<br />
<br />
The States Parties to this Convention,<br />
<br />
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,<br />
<br />
Recognizing that those rights derive from the inherent dignity of the human person,<br />
<br />
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,<br />
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,<br />
<br />
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (resolution 3452 (XXX)),<br />
<br />
Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,<br />
<br />
Have agreed as follows:<br />
<br />
Part I<br />
Article 1<br />
*1. For the purposes of this Convention, torture means 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.<br />
*2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. <br />
<br />
Article 2<br />
*1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.<br />
*2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.<br />
*3. An order from a superior officer or a public authority may not be invoked as a justification of torture. <br />
<br />
Article 3<br />
*1. 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.<br />
*2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. <br />
<br />
Article 4<br />
*1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.<br />
*2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. <br />
<br />
Article 5<br />
*1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:<br />
**1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;<br />
**2. When the alleged offender is a national of that State;<br />
**3. When the victim was a national of that State if that State considers it appropriate. <br />
*2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.<br />
*3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. <br />
<br />
Article 6<br />
*1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.<br />
*2. Such State shall immediately make a preliminary inquiry into the facts.<br />
*3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.<br />
*4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction. <br />
<br />
Article 7<br />
*1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.<br />
*2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.<br />
*3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings. <br />
<br />
Article 8<br />
*1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.<br />
*2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State.<br />
*3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested state.<br />
*4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. <br />
<br />
Article 9<br />
*1. States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.<br />
*2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them. <br />
<br />
Article 10<br />
*1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.<br />
*2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons. <br />
<br />
Article 11<br />
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.<br />
<br />
Article 12<br />
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.<br />
<br />
Article 13<br />
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.<br />
<br />
Article 14<br />
*1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.<br />
*2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law. <br />
<br />
Article 15<br />
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.<br />
<br />
Article 16<br />
*1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.<br />
*2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. <br />
<br />
Article 17<br />
*1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.<br />
*2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture.<br />
*3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.<br />
*4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.<br />
*5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.<br />
*6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.<br />
*7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. <br />
<br />
Article 18<br />
*1. The Committee shall elect its officers for a term of two years. They may be re-elected.<br />
*2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that<br />
**1. Six members shall constitute a quorum;<br />
**2. Decisions of the Committee shall be made by a majority vote of the members present. <br />
*3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.<br />
*4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.<br />
*5. The State Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement of the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 above. <br />
<br />
Article 19<br />
*1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request.<br />
*2. The Secretary-General shall transmit the reports to all States Parties.<br />
*3. [Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.<br />
*4. The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.] <br />
<br />
Article 20<br />
*1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.<br />
*2. Taking into account any observations which may have been submitted by the State Party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.<br />
*3. If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.<br />
*4. After examining the findings of its member or members submitted in accordance with paragraph 2, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.<br />
*5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24. <br />
<br />
Article 21<br />
*1. A State Party to this Convention may at any time declare under this article 3 that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:<br />
**1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.<br />
**2. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.<br />
**3. The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.<br />
**4. The Committee shall hold closed meetings when examining communications under this article.<br />
**5. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in the present Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission.<br />
**6. In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.<br />
**7. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.<br />
**8. The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report.<br />
***1. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.<br />
***2. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. In every matter, the report shall be communicated to the States Parties concerned.<br />
*2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 22<br />
*1. A State Party to this Convention may at any time declare under this article that it recognizes 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. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration.<br />
*2. The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.<br />
*3. Subject to the provisions of paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.<br />
*4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.<br />
*5. The Committee shall not consider any communication from an individual under this article unless it has ascertained that:<br />
**1. The same matter has not been, and is not being examined under another procedure of international investigation or settlement;<br />
**2. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. <br />
*6. The Committee shall hold closed meetings when examining communications under this article.<br />
*7. The Committee shall forward its views to the State Party concerned and to the individual.<br />
*8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit parties thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 23<br />
The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on missions for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.<br />
<br />
Article 24<br />
The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.<br />
<br />
Part III<br />
Article 25<br />
*1. This Convention is open for signature by all States.<br />
*2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. <br />
<br />
Article 26<br />
This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
Article 27<br />
*1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.<br />
*2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. <br />
<br />
Article 28<br />
*1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.<br />
*2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 29<br />
*1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the State Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.<br />
*2. An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.<br />
*3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted. <br />
<br />
Article 30<br />
*1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.<br />
*2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.<br />
*3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 31<br />
*1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.<br />
*2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.<br />
*3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State. <br />
<br />
Article 32<br />
The Secretary-General of the United Nations shall inform all members of the United Nations and all States which have signed this Convention or acceded to it, or the following particulars:<br />
*1. Signatures, ratifications and accessions under articles 25 and 26;<br />
*2. The date of entry into force of this Convention under article 27, and the date of the entry into force of any amendments under article 29;<br />
*3. Denunciations under article 31. <br />
<br />
Article 33<br />
*1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
*2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. <br />
<br />
On February 4, 1985, the Convention was opened for signature at United Nations Headquarters in New York. At that time, representatives of the following countries signed it: Afghanistan, Argentina, Belgium, Bolivia, Costa Rica, Denmark, Dominican Republic, Finland, France, Greece, Iceland, Italy, Netherlands, Norway, Portugal, Senegal, Spain, Sweden, Switzerland and Uruguay. Subsequently, signatures were received from Venezuela on February 15, from Luxembourg and Panama on February 22, from Austria on March 14, and from the United Kingdom on March 15, 1985.<br />
<br />
(signatures)</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Convention_Against_Torture&diff=2455Convention Against Torture2010-06-07T15:37:18Z<p>Achogan: </p>
<hr />
<div>CONVENTION AGAINST TORTURE<br />
and Other Cruel, Inhuman or Degrading<br />
Treatment or Punishment<br />
<br />
<br />
The States Parties to this Convention,<br />
<br />
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,<br />
<br />
Recognizing that those rights derive from the inherent dignity of the human person,<br />
<br />
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,<br />
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,<br />
<br />
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (resolution 3452 (XXX)),<br />
<br />
Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,<br />
<br />
Have agreed as follows:<br />
<br />
Part I<br />
Article 1<br />
*1. For the purposes of this Convention, torture means 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.<br />
*2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. <br />
<br />
Article 2<br />
*1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.<br />
*2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.<br />
*3. An order from a superior officer or a public authority may not be invoked as a justification of torture. <br />
<br />
Article 3<br />
*1. 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.<br />
*2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. <br />
<br />
Article 4<br />
*1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.<br />
*2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. <br />
<br />
Article 5<br />
*1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:<br />
**1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;<br />
**2. When the alleged offender is a national of that State;<br />
**3. When the victim was a national of that State if that State considers it appropriate. <br />
*2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.<br />
*3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. <br />
<br />
Article 6<br />
*1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.<br />
*2. Such State shall immediately make a preliminary inquiry into the facts.<br />
*3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.<br />
*4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction. <br />
<br />
Article 7<br />
*1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.<br />
*2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.<br />
*3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings. <br />
<br />
Article 8<br />
*1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.<br />
*2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State.<br />
*3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested state.<br />
*4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. <br />
<br />
Article 9<br />
*1. States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.<br />
*2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them. <br />
<br />
Article 10<br />
*1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.<br />
*2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons. <br />
<br />
Article 11<br />
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.<br />
<br />
Article 12<br />
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.<br />
<br />
Article 13<br />
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.<br />
<br />
Article 14<br />
*1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.<br />
*2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law. <br />
<br />
Article 15<br />
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.<br />
<br />
Article 16<br />
*1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.<br />
*2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. <br />
<br />
Article 17<br />
*1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.<br />
*2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture.<br />
*3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.<br />
*4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.<br />
*5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.<br />
*6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.<br />
*7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. <br />
<br />
Article 18<br />
*1. The Committee shall elect its officers for a term of two years. They may be re-elected.<br />
*2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that<br />
**1. Six members shall constitute a quorum;<br />
**2. Decisions of the Committee shall be made by a majority vote of the members present. <br />
*3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.<br />
*4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.<br />
*5. The State Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement of the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 above. <br />
<br />
Article 19<br />
*1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request.<br />
*2. The Secretary-General shall transmit the reports to all States Parties.<br />
*3. [Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.<br />
*4. The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.] <br />
<br />
Article 20<br />
*1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.<br />
*2. Taking into account any observations which may have been submitted by the State Party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.<br />
*3. If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.<br />
*4. After examining the findings of its member or members submitted in accordance with paragraph 2, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.<br />
*5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24. <br />
<br />
Article 21<br />
*1. A State Party to this Convention may at any time declare under this article 3 that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:<br />
**1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.<br />
**2. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.<br />
**3. The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.<br />
**4. The Committee shall hold closed meetings when examining communications under this article.<br />
**5. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in the present Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission.<br />
**6. In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.<br />
**7. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.<br />
**8. The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report.<br />
***1. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.<br />
***2. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. <br />
In every matter, the report shall be communicated to the States Parties concerned.<br />
*2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 22<br />
*1. A State Party to this Convention may at any time declare under this article that it recognizes 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. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration.<br />
*2. The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.<br />
*3. Subject to the provisions of paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.<br />
*4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.<br />
*5. The Committee shall not consider any communication from an individual under this article unless it has ascertained that:<br />
**1. The same matter has not been, and is not being examined under another procedure of international investigation or settlement;<br />
**2. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. <br />
*6. The Committee shall hold closed meetings when examining communications under this article.<br />
*7. The Committee shall forward its views to the State Party concerned and to the individual.<br />
*8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit parties thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 23<br />
The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on missions for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.<br />
<br />
Article 24<br />
The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.<br />
<br />
Part III<br />
Article 25<br />
*1. This Convention is open for signature by all States.<br />
*2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. <br />
<br />
Article 26<br />
This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
Article 27<br />
*1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.<br />
*2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. <br />
<br />
Article 28<br />
*1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.<br />
*2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 29<br />
*1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the State Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.<br />
*2. An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.<br />
*3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted. <br />
<br />
Article 30<br />
*1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.<br />
*2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.<br />
*3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 31<br />
*1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.<br />
*2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.<br />
*3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State. <br />
<br />
Article 32<br />
The Secretary-General of the United Nations shall inform all members of the United Nations and all States which have signed this Convention or acceded to it, or the following particulars:<br />
*1. Signatures, ratifications and accessions under articles 25 and 26;<br />
*2. The date of entry into force of this Convention under article 27, and the date of the entry into force of any amendments under article 29;<br />
*3. Denunciations under article 31. <br />
<br />
Article 33<br />
*1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
*2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. <br />
<br />
On February 4, 1985, the Convention was opened for signature at United Nations Headquarters in New York. At that time, representatives of the following countries signed it: Afghanistan, Argentina, Belgium, Bolivia, Costa Rica, Denmark, Dominican Republic, Finland, France, Greece, Iceland, Italy, Netherlands, Norway, Portugal, Senegal, Spain, Sweden, Switzerland and Uruguay. Subsequently, signatures were received from Venezuela on February 15, from Luxembourg and Panama on February 22, from Austria on March 14, and from the United Kingdom on March 15, 1985.<br />
<br />
(signatures)</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Convention_Against_Torture&diff=2454Convention Against Torture2010-06-07T15:35:18Z<p>Achogan: </p>
<hr />
<div>CONVENTION AGAINST TORTURE<br />
and Other Cruel, Inhuman or Degrading<br />
Treatment or Punishment<br />
<br />
<br />
The States Parties to this Convention,<br />
<br />
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,<br />
<br />
Recognizing that those rights derive from the inherent dignity of the human person,<br />
<br />
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,<br />
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,<br />
<br />
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (resolution 3452 (XXX)),<br />
<br />
Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,<br />
<br />
Have agreed as follows:<br />
<br />
Part I<br />
Article 1<br />
*1. For the purposes of this Convention, torture means 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.<br />
*2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. <br />
<br />
Article 2<br />
*1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.<br />
*2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.<br />
*3. An order from a superior officer or a public authority may not be invoked as a justification of torture. <br />
<br />
Article 3<br />
*1. 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.<br />
*2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. <br />
<br />
Article 4<br />
*1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.<br />
*2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. <br />
<br />
Article 5<br />
*1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:<br />
**1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;<br />
**2. When the alleged offender is a national of that State;<br />
**3. When the victim was a national of that State if that State considers it appropriate. <br />
*2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.<br />
*3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. <br />
<br />
Article 6<br />
*1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.<br />
*2. Such State shall immediately make a preliminary inquiry into the facts.<br />
*3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.<br />
*4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction. <br />
<br />
Article 7<br />
*1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.<br />
*2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.<br />
*3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings. <br />
<br />
Article 8<br />
*1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.<br />
*2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State.<br />
*3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested state.<br />
*4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. <br />
<br />
Article 9<br />
*1. States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.<br />
*2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them. <br />
<br />
Article 10<br />
*1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.<br />
*2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons. <br />
<br />
Article 11<br />
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.<br />
<br />
Article 12<br />
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.<br />
<br />
Article 13<br />
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.<br />
<br />
Article 14<br />
*1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.<br />
*2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law. <br />
<br />
Article 15<br />
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.<br />
<br />
Article 16<br />
*1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.<br />
*2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. <br />
<br />
Article 17<br />
*1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.<br />
*2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture.<br />
*3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.<br />
*4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.<br />
*5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.<br />
*6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.<br />
*7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. <br />
<br />
Article 18<br />
*1. The Committee shall elect its officers for a term of two years. They may be re-elected.<br />
*2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that<br />
**1. Six members shall constitute a quorum;<br />
**2. Decisions of the Committee shall be made by a majority vote of the members present. <br />
*3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.<br />
*4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.<br />
*5. The State Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement of the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 above. <br />
<br />
Article 19<br />
*1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request.<br />
*2. The Secretary-General shall transmit the reports to all States Parties.<br />
*3. [Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.<br />
*4. The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.] <br />
<br />
Article 20<br />
*1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.<br />
*2. Taking into account any observations which may have been submitted by the State Party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.<br />
*3. If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.<br />
*4. After examining the findings of its member or members submitted in accordance with paragraph 2, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.<br />
*5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24. <br />
<br />
Article 21<br />
*1. A State Party to this Convention may at any time declare under this article 3 that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:<br />
*1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.<br />
*2. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.<br />
*3. The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.<br />
*4. The Committee shall hold closed meetings when examining communications under this article.<br />
*5. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in the present Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission.<br />
*6. In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.<br />
*7. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.<br />
*8. The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report.<br />
**1. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.<br />
**2. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. <br />
In every matter, the report shall be communicated to the States Parties concerned.<br />
<br />
*2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 22<br />
*1. A State Party to this Convention may at any time declare under this article that it recognizes 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. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration.<br />
*2. The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.<br />
*3. Subject to the provisions of paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.<br />
*4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.<br />
*5. The Committee shall not consider any communication from an individual under this article unless it has ascertained that:<br />
**1. The same matter has not been, and is not being examined under another procedure of international investigation or settlement;<br />
**2. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. <br />
*6. The Committee shall hold closed meetings when examining communications under this article.<br />
*7. The Committee shall forward its views to the State Party concerned and to the individual.<br />
*8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit parties thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 23<br />
The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on missions for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.<br />
<br />
Article 24<br />
The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.<br />
<br />
Part III<br />
Article 25<br />
*1. This Convention is open for signature by all States.<br />
*2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. <br />
<br />
Article 26<br />
This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
Article 27<br />
*1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.<br />
*2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. <br />
<br />
Article 28<br />
*1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.<br />
*2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 29<br />
*1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the State Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.<br />
*2. An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.<br />
*3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted. <br />
<br />
Article 30<br />
*1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.<br />
*2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.<br />
*3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 31<br />
*1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.<br />
*2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.<br />
*3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State. <br />
<br />
Article 32<br />
The Secretary-General of the United Nations shall inform all members of the United Nations and all States which have signed this Convention or acceded to it, or the following particulars:<br />
*1. Signatures, ratifications and accessions under articles 25 and 26;<br />
*2. The date of entry into force of this Convention under article 27, and the date of the entry into force of any amendments under article 29;<br />
*3. Denunciations under article 31. <br />
<br />
Article 33<br />
*1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
*2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. <br />
<br />
On February 4, 1985, the Convention was opened for signature at United Nations Headquarters in New York. At that time, representatives of the following countries signed it: Afghanistan, Argentina, Belgium, Bolivia, Costa Rica, Denmark, Dominican Republic, Finland, France, Greece, Iceland, Italy, Netherlands, Norway, Portugal, Senegal, Spain, Sweden, Switzerland and Uruguay. Subsequently, signatures were received from Venezuela on February 15, from Luxembourg and Panama on February 22, from Austria on March 14, and from the United Kingdom on March 15, 1985.<br />
<br />
(signatures)</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Convention_Against_Torture&diff=2453Convention Against Torture2010-06-07T15:20:44Z<p>Achogan: </p>
<hr />
<div>CONVENTION AGAINST TORTURE<br />
and Other Cruel, Inhuman or Degrading<br />
Treatment or Punishment<br />
<br />
<br />
The States Parties to this Convention,<br />
<br />
Considering that, in accordance with the principles proclaimed in the Charter of the United Nations, recognition of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,<br />
<br />
Recognizing that those rights derive from the inherent dignity of the human person,<br />
<br />
Considering the obligation of States under the Charter, in particular Article 55, to promote universal respect for, and observance of, human rights and fundamental freedoms,<br />
Having regard to article 5 of the Universal Declaration of Human Rights and article 7 of the International Covenant on Civil and Political Rights, both of which provide that no one may be subjected to torture or to cruel, inhuman or degrading treatment or punishment,<br />
<br />
Having regard also to the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly on 9 December 1975 (resolution 3452 (XXX)),<br />
<br />
Desiring to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world,<br />
<br />
Have agreed as follows:<br />
<br />
Part I<br />
Article 1<br />
*1. For the purposes of this Convention, torture means 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.<br />
*2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. <br />
<br />
Article 2<br />
*1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.<br />
*2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.<br />
*3. An order from a superior officer or a public authority may not be invoked as a justification of torture. <br />
<br />
Article 3<br />
*1. 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.<br />
*2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. <br />
<br />
Article 4<br />
*1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.<br />
*2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature. <br />
<br />
Article 5<br />
*1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:<br />
**1. When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;<br />
**2. When the alleged offender is a national of that State;<br />
**3. When the victim was a national of that State if that State considers it appropriate. <br />
*2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in Paragraph 1 of this article.<br />
*3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law. <br />
<br />
Article 6<br />
*1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present, shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.<br />
*2. Such State shall immediately make a preliminary inquiry into the facts.<br />
*3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, to the representative of the State where he usually resides.<br />
*4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said State and shall indicate whether it intends to exercise jurisdiction. <br />
<br />
Article 7<br />
*1. The State Party in territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found, shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.<br />
*2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.<br />
*3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings. <br />
<br />
Article 8<br />
*1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.<br />
*2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offenses. Extradition shall be subject to the other conditions provided by the law of the requested State.<br />
*3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested state.<br />
*4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1. <br />
<br />
Article 9<br />
*1. States Parties shall afford one another the greatest measure of assistance in connection with civil proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.<br />
*2. States Parties shall carry out their obligations under paragraph 1 of this article in conformity with any treaties on mutual judicial assistance that may exist between them. <br />
<br />
Article 10<br />
<br />
1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.<br />
2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such persons. <br />
<br />
Article 11<br />
Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.<br />
<br />
Article 12<br />
Each State Party shall ensure that its competent authorities proceed to a prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committee in any territory under its jurisdiction.<br />
<br />
Article 13<br />
Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to and to have his case promptly and impartially examined its competent authorities. Steps shall be taken to ensure that the complainant and witnesses are protected against all ill-treatment or intimidation as a consequence of his complaint or any evidence given.<br />
<br />
Article 14<br />
<br />
1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependents shall be entitled to compensation.<br />
2. Nothing in this article shall affect any right of the victim or other person to compensation which may exist under national law. <br />
<br />
Article 15<br />
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.<br />
<br />
Article 16<br />
<br />
1. Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are 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. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture or references to other forms of cruel, inhuman or degrading treatment or punishment.<br />
2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibit cruel, inhuman or degrading treatment or punishment or which relate to extradition or expulsion. <br />
<br />
Article 17<br />
<br />
1. There shall be established a Committee against Torture (hereinafter referred to as the Committee) which shall carry out the functions hereinafter provided. The Committee shall consist of 10 experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity. The experts shall be elected by the States Parties, consideration being given to equitable geographical distribution and to the usefulness of the participation of some persons having legal experience.<br />
2. The members of the Committee shall be elected by secret ballot from a list of persons nominated by States Parties. Each State Party may nominate one person from among its own nationals. States Parties shall bear in mind the usefulness of nominating persons who are also members of the Human Rights Committee established under the International Covenant on Civil and Political Rights and are willing to serve on the Committee against Torture.<br />
3. Elections of the members of the Committee shall be held at biennial meetings of States Parties convened by the Secretary-General of the United Nations. At those meetings, for which two thirds of the States Parties shall constitute a quorum, the persons elected to the Committee shall be those who obtain the largest number of votes and an absolute majority of the votes of the representatives of States Parties present and voting.<br />
4. The initial election shall be held no later than six months after the date of the entry into force of this Convention. At least four months before the date of each election, the Secretary-General of the United Nations shall address a letter to the States Parties inviting them to submit their nominations within three months. The Secretary-General shall prepare a list in alphabetical order of all persons thus nominated, indicating the States Parties which have nominated them, and shall submit it to the States Parties.<br />
5. The members of the Committee shall be elected for a term of four years. They shall be eligible for re-election if renominated. However, the term of five of the members elected at the first election shall expire at the end of two years; immediately after the first election the names of these five members shall be chosen by lot by the chairman of the meeting referred to in paragraph 3.<br />
6. If a member of the Committee dies or resigns or for any other cause can no longer perform his Committee duties, the State Party which nominated him shall appoint another expert from among its nationals to serve for the remainder of his term, subject to the approval of the majority of the States Parties. The approval shall be considered given unless half or more of the States Parties respond negatively within six weeks after having been informed by the Secretary-General of the United Nations of the proposed appointment.<br />
7. States Parties shall be responsible for the expenses of the members of the Committee while they are in performance of Committee duties. <br />
<br />
Article 18<br />
<br />
1. The Committee shall elect its officers for a term of two years. They may be re-elected.<br />
2. The Committee shall establish its own rules of procedure, but these rules shall provide, inter alia, that<br />
1. Six members shall constitute a quorum;<br />
2. Decisions of the Committee shall be made by a majority vote of the members present. <br />
3. The Secretary-General of the United Nations shall provide the necessary staff and facilities for the effective performance of the functions of the Committee under this Convention.<br />
4. The Secretary-General of the United Nations shall convene the initial meeting of the Committee. After its initial meeting, the Committee shall meet at such times as shall be provided in its rules of procedure.<br />
5. The State Parties shall be responsible for expenses incurred in connection with the holding of meetings of the States Parties and of the Committee, including reimbursement of the United Nations for any expenses, such as the cost of staff and facilities, incurred by the United Nations pursuant to paragraph 3 above. <br />
<br />
Article 19<br />
<br />
1. The States Parties shall submit to the Committee, through the Secretary-General of the United Nations, reports on the measures they have taken to give effect to their undertakings under this Convention, within one year after the entry into force of this Convention for the State Party concerned. Thereafter the States Parties shall submit supplementary reports every four years on any new measures taken, and such other reports as the Committee may request.<br />
2. The Secretary-General shall transmit the reports to all States Parties.<br />
3. [Each report shall be considered by the Committee which may make such comments or suggestions on the report as it considers appropriate, and shall forward these to the State Party concerned. That State Party may respond with any observations it chooses to the Committee.<br />
4. The Committee may, at its discretion, decide to include any comments or suggestions made by it in accordance with paragraph 3, together with the observations thereon received from the State Party concerned, in its annual report made in accordance with article 24. If so requested by the State Party concerned, the Committee may also include a copy of the report submitted under paragraph 1.] <br />
<br />
Article 20<br />
<br />
1. If the Committee receives reliable information which appears to it to contain well-founded indications that torture is being systematically practised in the territory of a State Party, the Committee shall invite that State Party to co-operate in the examination of the information and to this end to submit observations with regard to the information concerned.<br />
2. Taking into account any observations which may have been submitted by the State Party concerned as well as any other relevant information available to it, the Committee may, if it decides that this is warranted, designate one or more of its members to make a confidential inquiry and to report to the Committee urgently.<br />
3. If an inquiry is made in accordance with paragraph 2, the Committee shall seek the co-operation of the State Party concerned. In agreement with that State Party, such an inquiry may include a visit to its territory.<br />
4. After examining the findings of its member or members submitted in accordance with paragraph 2, the Committee shall transmit these findings to the State Party concerned together with any comments or suggestions which seem appropriate in view of the situation.<br />
5. All the proceedings of the Committee referred to in paragraphs 1 to 4 of this article shall be confidential, and at all stages of the proceedings the co-operation of the State Party shall be sought. After such proceedings have been completed with regard to an inquiry made in accordance with paragraph 2, the Committee may, after consultations with the State Party concerned, decide to include a summary account of the results of the proceedings in its annual report made in accordance with article 24. <br />
<br />
Article 21<br />
<br />
1. A State Party to this Convention may at any time declare under this article 3 that it recognizes the competence of the Committee to receive and consider communications to the effect that a State Party claims that another State Party is not fulfilling its obligations under this Convention. Such communications may be received and considered according to the procedures laid down in this article only if submitted by a State Party which has made a declaration recognizing in regard to itself the competence of the Committee. No communication shall be dealt with by the Committee under this article if it concerns a State Party which has not made such a declaration. Communications received under this article shall be dealt with in accordance with the following procedure:<br />
1. If a State Party considers that another State Party is not giving effect to the provisions of this Convention, it may, by written communication, bring the matter to the attention of that State Party. Within three months after the receipt of the communication the receiving State shall afford the State which sent the communication an explanation or any other statement in writing clarifying the matter which should include, to the extent possible and pertinent, references to domestic procedures and remedies taken, pending, or available in the matter.<br />
2. If the matter is not adjusted to the satisfaction of both States Parties concerned within six months after the receipt by the receiving State of the initial communication, either State shall have the right to refer the matter to the Committee by notice given to the Committee and to the other State.<br />
3. The Committee shall deal with a matter referred to it under this article only after it has ascertained that all domestic remedies have been invoked and exhausted in the matter, in conformity with the generally recognized principles of international law. This shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention.<br />
4. The Committee shall hold closed meetings when examining communications under this article.<br />
5. Subject to the provisions of subparagraph (c), the Committee shall make available its good offices to the States Parties concerned with a view to a friendly solution of the matter on the basis of respect for the obligations provided for in the present Convention. For this purpose, the Committee may, when appropriate, set up an ad hoc conciliation commission.<br />
6. In any matter referred to it under this article, the Committee may call upon the States Parties concerned, referred to in subparagraph (b), to supply any relevant information.<br />
7. The States Parties concerned, referred to in subparagraph (b), shall have the right to be represented when the matter is being considered by the Committee and to make submissions orally and/or in writing.<br />
8. The Committee shall, within 12 months after the date of receipt of notice under subparagraph (b), submit a report.<br />
1. If a solution within the terms of subparagraph (e) is reached, the Committee shall confine its report to a brief statement of the facts and of the solution reached.<br />
2. If a solution within the terms of subparagraph (e) is not reached, the Committee shall confine its report to a brief statement of the facts; the written submissions and record of the oral submissions made by the States Parties concerned shall be attached to the report. <br />
In every matter, the report shall be communicated to the States Parties concerned.<br />
<br />
2. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit copies thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by any State Party shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 22<br />
<br />
1. A State Party to this Convention may at any time declare under this article that it recognizes 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. No communication shall be received by the Committee if it concerns a State Party to the Convention which has not made such a declaration.<br />
2. The Committee shall consider inadmissible any communication under this article which is anonymous, or which it considers to be an abuse of the right of submission of such communications or to be incompatible with the provisions of this Convention.<br />
3. Subject to the provisions of paragraph 2, the Committee shall bring any communication submitted to it under this article to the attention of the State Party to this Convention which has made a declaration under paragraph 1 and is alleged to be violating any provisions of the Convention. Within six months, the receiving State shall submit to the Committee written explanations or statements clarifying the matter and the remedy, if any, that may have been taken by that State.<br />
4. The Committee shall consider communications received under this article in the light of all information made available to it by or on behalf of the individual and by the State Party concerned.<br />
5. The Committee shall not consider any communication from an individual under this article unless it has ascertained that:<br />
1. The same matter has not been, and is not being examined under another procedure of international investigation or settlement;<br />
2. The individual has exhausted all available domestic remedies; this shall not be the rule where the application of the remedies is unreasonably prolonged or is unlikely to bring effective relief to the person who is the victim of the violation of this Convention. <br />
6. The Committee shall hold closed meetings when examining communications under this article.<br />
7. The Committee shall forward its views to the State Party concerned and to the individual.<br />
8. The provisions of this article shall come into force when five States Parties to this Convention have made declarations under paragraph 1 of this article. Such declarations shall be deposited by the States Parties with the Secretary-General of the United Nations, who shall transmit parties thereof to the other States Parties. A declaration may be withdrawn at any time by notification to the Secretary-General. Such a withdrawal shall not prejudice the consideration of any matter which is the subject of a communication already transmitted under this article; no further communication by or on behalf of an individual shall be received under this article after the notification of withdrawal of the declaration has been received by the Secretary-General, unless the State Party concerned has made a new declaration. <br />
<br />
Article 23<br />
The members of the Committee, and of the ad hoc conciliation commissions which may be appointed under article 21, paragraph 1 (e), shall be entitled to the facilities, privileges and immunities of experts on missions for the United Nations as laid down in the relevant sections of the Convention on the Privileges and Immunities of the United Nations.<br />
<br />
Article 24<br />
The Committee shall submit an annual report on its activities under this Convention to the States Parties and to the General Assembly of the United Nations.<br />
<br />
Part III<br />
Article 25<br />
<br />
1. This Convention is open for signature by all States.<br />
2. This Convention is subject to ratification. Instruments of ratification shall be deposited with the Secretary-General of the United Nations. <br />
<br />
Article 26<br />
This Convention is open to accession by all States. Accession shall be effected by the deposit of an instrument of accession with the Secretary-General of the United Nations.<br />
<br />
Article 27<br />
<br />
1. This Convention shall enter into force on the thirtieth day after the date of the deposit with the Secretary-General of the United Nations of the twentieth instrument of ratification or accession.<br />
2. For each State ratifying this Convention or acceding to it after the deposit of the twentieth instrument of ratification or accession, the Convention shall enter into force on the thirtieth day after the date of the deposit of its own instrument of ratification or accession. <br />
<br />
Article 28<br />
<br />
1. Each State may, at the time of signature or ratification of this Convention or accession thereto, declare that it does not recognize the competence of the Committee provided for in article 20.<br />
2. Any State Party having made a reservation in accordance with paragraph 1 of this article may, at any time, withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 29<br />
<br />
1. Any State Party to this Convention may propose an amendment and file it with the Secretary-General of the United Nations. The Secretary-General shall thereupon communicate the proposed amendment to the States Parties to this Convention with a request that they notify him whether they favour a conference of States Parties for the purpose of considering and voting upon the proposal. In the event that within four months from the date of such communication at least one third of the State Parties favours such a conference, the Secretary-General shall convene the conference under the auspices of the United Nations. Any amendment adopted by a majority of the States Parties present and voting at the conference shall be submitted by the Secretary-General to all the States Parties for acceptance.<br />
2. An amendment adopted in accordance with paragraph 1 shall enter into force when two thirds of the States Parties to this Convention have notified the Secretary-General of the United Nations that they have accepted it in accordance with their respective constitutional processes.<br />
3. When amendments enter into force, they shall be binding on those States Parties which have accepted them, other States Parties still being bound by the provisions of this Convention and any earlier amendments which they have accepted. <br />
<br />
Article 30<br />
<br />
1. Any dispute between two or more States Parties concerning the interpretation or application of this Convention which cannot be settled through negotiation, shall, at the request of one of them, be submitted to arbitration. If within six months from the date of the request for arbitration the Parties are unable to agree on the organization of the arbitration, any one of those Parties may refer the dispute to the International Court of Justice by request in conformity with the Statute of the Court.<br />
2. Each State may at the time of signature or ratification of this Convention or accession thereto, declare that it does not consider itself bound by the preceding paragraph. The other States Parties shall not be bound by the preceding paragraph with respect to any State Party having made such a reservation.<br />
3. Any State Party having made a reservation in accordance with the preceding paragraph may at any time withdraw this reservation by notification to the Secretary-General of the United Nations. <br />
<br />
Article 31<br />
<br />
1. A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of the notification by the Secretary-General.<br />
2. Such a denunciation shall not have the effect of releasing the State Party from its obligations under this Convention in regard to any act or omission which occurs prior to the date at which the denunciation becomes effective. Nor shall denunciation prejudice in any way the continued consideration of any matter which is already under consideration by the Committee prior to the date at which the denunciation becomes effective.<br />
3. Following the date at which the denunciation of a State Party becomes effective, the Committee shall not commence consideration of any new matter regarding that State. <br />
<br />
Article 32<br />
The Secretary-General of the United Nations shall inform all members of the United Nations and all States which have signed this Convention or acceded to it, or the following particulars:<br />
<br />
1. Signatures, ratifications and accessions under articles 25 and 26;<br />
2. The date of entry into force of this Convention under article 27, and the date of the entry into force of any amendments under article 29;<br />
3. Denunciations under article 31. <br />
<br />
Article 33<br />
<br />
1. This Convention, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic, shall be deposited in the archives of the United Nations.<br />
2. The Secretary-General of the United Nations shall transmit certified copies of this Convention to all States. <br />
<br />
On February 4, 1985, the Convention was opened for signature at United Nations Headquarters in New York. At that time, representatives of the following countries signed it: Afghanistan, Argentina, Belgium, Bolivia, Costa Rica, Denmark, Dominican Republic, Finland, France, Greece, Iceland, Italy, Netherlands, Norway, Portugal, Senegal, Spain, Sweden, Switzerland and Uruguay. Subsequently, signatures were received from Venezuela on February 15, from Luxembourg and Panama on February 22, from Austria on March 14, and from the United Kingdom on March 15, 1985.<br />
<br />
(signatures)</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2395Lawyer-Client Relationship (India)2010-06-04T09:59:26Z<p>Achogan: /* Part II: Attorney-Client */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2394Lawyer-Client Relationship (India)2010-06-04T09:41:49Z<p>Achogan: /* The Duties of the Attorney */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2393Lawyer-Client Relationship (India)2010-06-04T09:18:51Z<p>Achogan: /* Court Appointment */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2392Lawyer-Client Relationship (India)2010-06-04T09:17:54Z<p>Achogan: /* Court Appointment */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2361India2010-06-03T15:10:56Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Classes of Criminal Courts]]<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2360India2010-06-03T15:10:38Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Classes of Courts]]<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2359India2010-06-03T12:50:35Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2358India2010-06-03T12:46:43Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2357India2010-06-03T12:45:02Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2356India2010-06-03T12:44:28Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
<br />
[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2355India2010-06-03T12:44:10Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2354India2010-06-03T12:42:26Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
<br />
[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2353India2010-06-03T12:41:45Z<p>Achogan: /* Codes */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm]<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2346India2010-06-03T10:00:53Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Various Defense Strategies]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
<br />
<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=India&diff=2338India2010-06-03T09:40:22Z<p>Achogan: /* India Defender Manual */</p>
<hr />
<div>This page contains material for defense lawyers in India.<br />
<br />
<br />
==India Defender Manual==<br />
'''Table of contents'''<br />
*[[Developing A Defense For Trial]] <br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
<br />
== Codes ==<br />
[http://www.astro.virginia.edu/~sk4zw/india-const/const.html Constitution of India]<br />
<br />
<br />
<br />
== Legal Training Resource Center ==<br />
[http://www.ibj.org/elearning eLearning Courses for Indian lawyers]</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2337Lawyer-Client Relationship (India)2010-06-03T09:32:24Z<p>Achogan: </p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2336Lawyer-Client Relationship (India)2010-06-03T09:16:13Z<p>Achogan: /* Follow-Up and Probing Questions */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2335Lawyer-Client Relationship (India)2010-06-03T09:08:43Z<p>Achogan: /* Leading Questions */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2334Lawyer-Client Relationship (India)2010-06-03T09:07:39Z<p>Achogan: /* Leading Questions */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2333Lawyer-Client Relationship (India)2010-06-03T08:48:44Z<p>Achogan: /* Behavior to Avoid in Conducting Interview */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2332Lawyer-Client Relationship (India)2010-06-03T08:43:49Z<p>Achogan: /* The Duties of the Attorney */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2331Lawyer-Client Relationship (India)2010-06-03T08:40:38Z<p>Achogan: /* Court Appointment */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2330Lawyer-Client Relationship (India)2010-06-03T08:36:07Z<p>Achogan: /* The Duties of the Attorney */</p>
<hr />
<div></div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2328Lawyer-Client Relationship (India)2010-06-02T14:05:18Z<p>Achogan: /* Duty of Competence and Diligence (American Bar Association Model Rules) */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) '''Competence'''<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) '''Diligence'''<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
* Facts of the case relating to your client;<br />
<br />
* Any witnesses or co-defendants who should be found;<br />
<br />
* Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
<br />
* Any evidence that can be preserved;<br />
<br />
* Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
<br />
* Try your best to answer your client's most pressing questions;<br />
<br />
* Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2327Lawyer-Client Relationship (India)2010-06-02T14:05:01Z<p>Achogan: /* Duty of Competence and Diligence (American Bar Association Model Rules) */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a)'''Competence'''<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b)'''Diligence'''<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
* Facts of the case relating to your client;<br />
<br />
* Any witnesses or co-defendants who should be found;<br />
<br />
* Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
<br />
* Any evidence that can be preserved;<br />
<br />
* Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
<br />
* Try your best to answer your client's most pressing questions;<br />
<br />
* Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2326Lawyer-Client Relationship (India)2010-06-02T14:02:30Z<p>Achogan: /* Information to be Obtained in Initial Client Interview */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
* Facts of the case relating to your client;<br />
<br />
* Any witnesses or co-defendants who should be found;<br />
<br />
* Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
<br />
* Any evidence that can be preserved;<br />
<br />
* Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
<br />
* Try your best to answer your client's most pressing questions;<br />
<br />
* Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2325Lawyer-Client Relationship (India)2010-06-02T14:01:52Z<p>Achogan: /* Information to be Obtained in Initial Client Interview */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
1. Facts of the case relating to your client;<br />
<br />
2. Any witnesses or co-defendants who should be found;<br />
<br />
3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
<br />
4. Any evidence that can be preserved;<br />
<br />
5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
<br />
6. Try your best to answer your client's most pressing questions;<br />
<br />
7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2324Lawyer-Client Relationship (India)2010-06-02T14:01:27Z<p>Achogan: /* Information to be Obtained in Initial Client Interview */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
1. Facts of the case relating to your client;<br />
2. Any witnesses or co-defendants who should be found;<br />
3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
4. Any evidence that can be preserved;<br />
5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
6. Try your best to answer your client's most pressing questions;<br />
7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2323Lawyer-Client Relationship (India)2010-06-02T14:00:16Z<p>Achogan: /* Behavior to Avoid in Conducting Interview */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
*1. Facts of the case relating to your client;<br />
*2. Any witnesses or co-defendants who should be found;<br />
*3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
*4. Any evidence that can be preserved;<br />
*5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
*6. Try your best to answer your client's most pressing questions;<br />
*7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
1. Instigating the client to lie about his part in the case;<br />
2. Lending your own cell phone to the client;<br />
3. Giving material articles to the client in private,<br />
4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2322Lawyer-Client Relationship (India)2010-06-02T13:59:39Z<p>Achogan: /* Closed vs. Open-Ended Questions */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
*1. Facts of the case relating to your client;<br />
*2. Any witnesses or co-defendants who should be found;<br />
*3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
*4. Any evidence that can be preserved;<br />
*5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
*6. Try your best to answer your client's most pressing questions;<br />
*7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
*1. Instigating the client to lie about his part in the case;<br />
*2. Lending your own cell phone to the client;<br />
*3. Giving material articles to the client in private,<br />
*4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1.'''Open-ended''' questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2.'''Close-ended''' questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2321Lawyer-Client Relationship (India)2010-06-02T13:59:01Z<p>Achogan: /* Follow-Up and Probing Questions */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
*1. Facts of the case relating to your client;<br />
*2. Any witnesses or co-defendants who should be found;<br />
*3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
*4. Any evidence that can be preserved;<br />
*5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
*6. Try your best to answer your client's most pressing questions;<br />
*7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
*1. Instigating the client to lie about his part in the case;<br />
*2. Lending your own cell phone to the client;<br />
*3. Giving material articles to the client in private,<br />
*4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1. Open-ended questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2. Close-ended questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*'''Nudging or Encouragement''': Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*'''Silence''': You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*'''Clarification''': You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2320Lawyer-Client Relationship (India)2010-06-02T13:55:47Z<p>Achogan: /* Client Interview Questions */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
*1. Facts of the case relating to your client;<br />
*2. Any witnesses or co-defendants who should be found;<br />
*3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
*4. Any evidence that can be preserved;<br />
*5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
*6. Try your best to answer your client's most pressing questions;<br />
*7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
*e.g.: <br />
**"When were you arrested?"<br />
**"Were you informed of the reason for your arrest?"<br />
**"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
*e.g.:<br />
**"Were you interrogated within 24 hours after the arrest?"<br />
**"Who interrogated you?"<br />
**"How many people interrogated you?"<br />
**"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
*e.g.:<br />
**"Did you ask for a legal defender?"<br />
**"Did anyone inform you that you could have a legal defender?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
*e.g.:<br />
**"Describe the place where you were after you arrest."<br />
**"Were you threatened with physical abuse during and after the arrest?"<br />
**"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
*e.g.:<br />
**"Describe your relationship with the alleged victim."<br />
**"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
**"Does he have a criminal record?"<br />
**"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
*e.g.:<br />
**"Describe your relationship with the co-defendants."<br />
**"Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
**"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
*e.g.:<br />
**"Do you understand the nature of the criminal charges against you?"<br />
**"Do you understand the defenses you might have to the charges?<br />
**"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
*1. Instigating the client to lie about his part in the case;<br />
*2. Lending your own cell phone to the client;<br />
*3. Giving material articles to the client in private,<br />
*4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1. Open-ended questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2. Close-ended questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*1. Nudging or Encouragement: Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*2. Silence: You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*3. Clarification: You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Lawyer-Client_Relationship_(India)&diff=2319Lawyer-Client Relationship (India)2010-06-02T13:54:26Z<p>Achogan: /* Closed vs. Open-Ended Questions */</p>
<hr />
<div>== Part I: Formation of the Attorney-Client Relationship ==<br />
<br />
===Court Appointment===<br />
<br />
* Article 22 of Constitution guarantees the accused the right to a lawyer. Hussainara Khatoon & Ors. v. Home Secretary Bihar, (1980) 1SCC 98.<br />
<br />
===Private Agreement===<br />
<br />
* Includes offer by the client and acceptance by the attorney. <br />
* The client furnishes consideration by payment or promise to pay.<br />
<br />
===The Duties of the Attorney===<br />
<br />
1) Duty of undivided loyalty to client<br />
* Lawyer must avoid taking actions that are contrary to the client's interest.<br />
2) Duty of Confidentiality<br />
* Lawyer must not disclose client's confidential information or use that information in a way that is inconsistent with the client's wishes.<br />
3) Duty of Competent Practice<br />
* Lawyers must represent client with reasonable care and competence, using the degree of skill, judgment, and care that a reasonably careful lawyer would use under the same circumstances<br />
4) Duty of Communication and Shared Decision-Making.<br />
* Requires the lawyer to communicate with the client to determine the terms and objectives of the representation. <br />
<br />
===Duty of Competence and Diligence (American Bar Association Model Rules)===<br />
<br />
(a) Competence<br />
*"The legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation."<br />
*Lawyers should not accept cases that they know, or ought to know, they are not competent to handle without co-operating with a lawyer who is competent.<br />
(b) Diligence<br />
*i) "Promptness in representing a client";<br />
*ii) "commitment and dedication to the interest of the client";<br />
*iii) "zealous advocacy upon the client's behalf."<br />
<br />
==Part II: Attorney-Client==<br />
<br />
==='''Key Ingredients of the Attorney-Client Relationship'''===<br />
* Honesty<br />
* Earned Trust<br />
* Full Disclosure<br />
<br />
==='''Information to be Obtained in Initial Client Interview'''===<br />
*1. Facts of the case relating to your client;<br />
*2. Any witnesses or co-defendants who should be found;<br />
*3. Any evidence of misconduct by the police or prosecutor that has infringed on the client's rights;<br />
*4. Any evidence that can be preserved;<br />
*5. Whether your client is capable of attending the trial and his mental state at the time of the alleged crime<br />
*6. Try your best to answer your client's most pressing questions;<br />
*7. Try your best to meet your client's most urgent needs, for example, providing contact with his family members or employer, or providing him with medical or mental treatment<br />
<br />
==='''Client Interview Questions'''===<br />
<br />
1. '''First Interview'''<br />
*Goal: Determine the basic facts and circumstances of the arrest<br />
e.g.: <br />
*"When were you arrested?"<br />
*"Were you informed of the reason for your arrest?"<br />
*"Were you informed of your legal rights?" <br />
<br />
2. '''Interrogation'''<br />
*Goal: Discover details of how client was interrogated<br />
e.g.:<br />
*"Were you interrogated within 24 hours after the arrest?"<br />
*"Who interrogated you?"<br />
*"How many people interrogated you?"<br />
*"Were you allowed to review adequately and modify your statements?"<br />
<br />
3. '''Requests for legal aid and family'''<br />
*Goal: Determine whether client was given opportunity to contract attorney and family<br />
e.g.:<br />
*"Did you ask for a legal defender?"<br />
*"Did anyone inform you that you could have a legal defender?"<br />
*"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
4. '''Detention'''<br />
*Goal: Determine details of how client was detained<br />
e.g.:<br />
*"Describe the place where you were after you arrest."<br />
*"Were you threatened with physical abuse during and after the arrest?"<br />
*"Was your family notified of the circumstances and place where you were being held within 24 hours of your arrest?"<br />
<br />
5. '''Information about the alleged victim'''<br />
*Goal: Determine details of client's relationship with alleged victim and the alleged victim current status<br />
e.g.:<br />
*"Describe your relationship with the alleged victim."<br />
*"Do you know the alleged victim's name, age, address, telephone number, and vocation?"<br />
*"Does he have a criminal record?"<br />
*"What are your feelings toward the alleged victim?"<br />
<br />
6. '''Information about co-defendants'''<br />
*Goal: Determine information about defendants and client's knowledge of/relationship with them<br />
e.g.:<br />
*"Describe your relationship with the co-defendants."<br />
*Do you know whether the alleged co-defendants were arrested? If so, do you know what, if any, items were seized from them?"<br />
*"Do you know what statements, if any, the co-defendants made about you? What is your response to their version of events"<br />
<br />
7. '''The Criminal Charges'''<br />
*Goal: Determine client's understanding of the charges against him/her and understanding of relevant information to rebut the charges<br />
e.g.:<br />
*"Do you understand the nature of the criminal charges against you?"<br />
*"Do you understand the defenses you might have to the charges?<br />
*"Is there anyone who can attest that they were with you at the time of the crime, but away from the scene of the crime?"<br />
<br />
==='''Behavior to Avoid in Conducting Interview'''===<br />
<br />
*1. Instigating the client to lie about his part in the case;<br />
*2. Lending your own cell phone to the client;<br />
*3. Giving material articles to the client in private,<br />
*4. Bringing a non-lawyer or the client's family members when meeting the client.<br />
<br />
==Part III: Interview Techniques==<br />
<br />
==='''Closed vs. Open-Ended Questions'''===<br />
<br />
1. Open-ended questions usually require a more detailed answer than "yes," "no," a date or place.<br />
*e.g.:<br />
**"Tell me about your family background."<br />
**"Could you describe one of the arguments you had with your husband?"<br />
**"Can you tell me about the first time you drank alcohol?"<br />
<br />
2. Close-ended questions can be answered simply with a "yes," "no," or a simple fact.<br />
*e.g.:<br />
**"Where were you born"<br />
**"Did your husband hit you?"<br />
**"How old were you when you started drinking alcohol?"<br />
<br />
In general, you should ask '''open-ended questions''' because this will enable the client to share more information.<br />
However, you may want to use '''close-ended questions''' when you need to obtain '''specific information''' such as birthdays or identification numbers. You will also probably use more close-ended questions toward the '''end of the interview'''.<br />
<br />
==='''Leading Questions'''===<br />
<br />
Leading questions often elicit unreliable answers. Questions should be phrased in a way that encourages the client to give clear and reliable answers. <br />
<br />
*Leading: "I'm sure you loved all of your children equally, didn't you?"<br />
*Rephrased: "When your children were small, how were they different from each other?"<br />
<br />
*Leading: "You never knew what Kumar and his friends were up to did you?<br />
*Rephrased: "Tell me about your relationship with Kumar before he was arrested."<br />
<br />
*Leading: "Kumar does not know how to read, does he?"<br />
*Rephrased: "What kind of student was Kumar?"<br />
<br />
==='''Follow-Up and Probing Questions'''===<br />
<br />
*1. Nudging or Encouragement: Verbal encouragement can help let the witness know that you are following him/her and are interested in what the witness is saying.<br />
*2. Silence: You may choose to remain silent for a moment, signaling that you are waiting for the witness to continue talking.<br />
*3. Clarification: You can seek clarification from the witness when necessary, this lets the witness know that what he/she has said is important and you want to know more.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=War_Crimes&diff=2318War Crimes2010-06-02T13:52:25Z<p>Achogan: </p>
<hr />
<div>'''War Crimes''' means:<br />
<br />
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:<br />
*(i) Wilful killing;<br />
*(ii) Torture or inhuman treatment, including biological experiments;<br />
*(iii) Wilfully causing great suffering, or serious injury to body or health;<br />
*(iv) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;<br />
*(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power;<br />
*(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial;<br />
*(vii) Unlawful deportation or transfer or unlawful confinement;<br />
*(viii) Taking of hostages.<br />
<br />
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:<br />
*(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;<br />
*(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;<br />
*(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;<br />
*(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;<br />
*(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;<br />
*(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;<br />
*(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;<br />
*(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;<br />
*(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;<br />
*(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;<br />
*(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;<br />
*(xii) Declaring that no quarter will be given;<br />
*(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;<br />
*(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;<br />
*(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;<br />
*(xvi) Pillaging a town or place, even when taken by assault;<br />
*(xvii) Employing poison or poisoned weapons;<br />
*(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;<br />
*(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;<br />
*(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;<br />
*(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;<br />
*(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;<br />
*(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;<br />
*(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;<br />
*(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions;<br />
*(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.<br />
<br />
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:<br />
*(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;<br />
*(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;<br />
*(iii) Taking of hostages;<br />
*(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.<br />
<br />
(d) Paragraph (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.<br />
<br />
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:<br />
*(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;<br />
*(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;<br />
*(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;<br />
*(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;<br />
*(v) Pillaging a town or place, even when taken by assault;<br />
*(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;<br />
*(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;<br />
*(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;<br />
*(ix) Killing or wounding treacherously a combatant adversary;<br />
*(x) Declaring that no quarter will be given;<br />
*(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;<br />
*(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;<br />
<br />
(f) Paragraph (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.<br />
<br />
*3. Nothing in paragraphs (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=War_Crimes&diff=2317War Crimes2010-06-02T13:50:40Z<p>Achogan: </p>
<hr />
<div>'''War Crimes''' means:<br />
<br />
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts against persons or property protected under the provisions of the relevant Geneva Convention:<br />
*(i) '''Wilful killing''';<br />
*(ii) '''Torture or inhuman treatment''', including biological experiments;<br />
*(iii) '''Wilfully causing great suffering, or serious injury to body or health''';<br />
*(iv) '''Extensive destruction and appropriation of property''', not justified by military necessity and carried out unlawfully and wantonly;<br />
*(v) '''Compelling a prisoner of war or other protected person to serve in the forces of a hostile Power''';<br />
*(vi) ''' Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial''';<br />
*(vii) '''Unlawful deportation or transfer or unlawful confinement''';<br />
*(viii) '''Taking of hostages'''.<br />
<br />
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law, namely, any of the following acts:<br />
*(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;<br />
*(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives;<br />
*(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;<br />
*(iv) Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;<br />
*(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives;<br />
*(vi) Killing or wounding a combatant who, having laid down his arms or having no longer means of defence, has surrendered at discretion;<br />
*(vii) Making improper use of a flag of truce, of the flag or of the military insignia and uniform of the enemy or of the United Nations, as well as of the distinctive emblems of the Geneva Conventions, resulting in death or serious personal injury;<br />
*(viii) The transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;<br />
*(ix) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;<br />
*(x) Subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;<br />
*(xi) Killing or wounding treacherously individuals belonging to the hostile nation or army;<br />
*(xii) Declaring that no quarter will be given;<br />
*(xiii) Destroying or seizing the enemy's property unless such destruction or seizure be imperatively demanded by the necessities of war;<br />
*(xiv) Declaring abolished, suspended or inadmissible in a court of law the rights and actions of the nationals of the hostile party;<br />
*(xv) Compelling the nationals of the hostile party to take part in the operations of war directed against their own country, even if they were in the belligerent's service before the commencement of the war;<br />
*(xvi) Pillaging a town or place, even when taken by assault;<br />
*(xvii) Employing poison or poisoned weapons;<br />
*(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;<br />
*(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;<br />
*(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;<br />
*(xxi) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;<br />
*(xxii) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence also constituting a grave breach of the Geneva Conventions;<br />
*(xxiii) Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;<br />
*(xxiv) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;<br />
*(xxv) Intentionally using starvation of civilians as a method of warfare by depriving them of objects indispensable to their survival, including willfully impeding relief supplies as provided for under the Geneva Conventions;<br />
*(xxvi) Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.<br />
<br />
(c) In the case of an armed conflict not of an international character, serious violations of article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed against persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:<br />
*(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;<br />
*(ii) Committing outrages upon personal dignity, in particular humiliating and degrading treatment;<br />
*(iii) Taking of hostages;<br />
*(iv) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable.<br />
<br />
(d) Paragraph (c) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature.<br />
<br />
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts:<br />
*(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;<br />
*(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;<br />
*(iii) Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict;<br />
*(iv) Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives;<br />
*(v) Pillaging a town or place, even when taken by assault;<br />
*(vi) Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of article 3 common to the four Geneva Conventions;<br />
*(vii) Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;<br />
*(viii) Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand;<br />
*(ix) Killing or wounding treacherously a combatant adversary;<br />
*(x) Declaring that no quarter will be given;<br />
*(xi) Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons;<br />
*(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict;<br />
<br />
(f) Paragraph (e) applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.<br />
<br />
*3. Nothing in paragraphs (c) and (e) shall affect the responsibility of a Government to maintain or re-establish law and order in the State or to defend the unity and territorial integrity of the State, by all legitimate means.</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Crimes_against_Humanity&diff=2316Crimes against Humanity2010-06-02T13:46:31Z<p>Achogan: /* Murder */</p>
<hr />
<div>'''Crime Against Humanity''' means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.<br />
<br />
===Murder===<br />
The unlawful killing of another human being.<br />
<br />
===Extermination===<br />
The intentional infliction of conditions of life, inter alia the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population.<br />
<br />
===Enslavement===<br />
The exercise of any or all of the powers attaching to the right of ownership over a person and includes the exercise of such power in the course of trafficking in persons, in particular women and children.<br />
<br />
===Deportation or forcible transfer of population===<br />
Forced displacement of the persons concerned by expulsion or other coercive acts from the area in which they are lawfully present, without grounds permitted under international law.<br />
<br />
===Imprisonment=== <br />
Severe deprivation of physical liberty in violation of fundamental rules of international law.<br />
<br />
===Torture===<br />
The intentional infliction of severe pain or suffering, whether physical or mental, upon a person in the custody or under the control of the accused; except that torture shall not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions.<br />
<br />
===Sexual Violence===<br />
*Rape<br />
*Sexual Slavery<br />
*Enforced Prostitution<br />
*Forced pregnancy<br />
**The unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.<br />
*Enforced Sterilization<br />
<br />
===Persecution Against Any Identifiable Group or Collectivity===<br />
'''Persecution''' is the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity on any of these grounds:<br />
*Political<br />
*Racial<br />
*National<br />
*Ethnic<br />
*Cultural<br />
*Religious<br />
*Gender<br />
**The term "gender" refers to the two sexes, male and female, within the context of society.<br />
*Other grounds that are universally recognized as impermissible under international law<br />
<br />
===Enforced disappearance of persons===<br />
The arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.<br />
<br />
===The Crime of Apartheid===<br />
Inhumane acts committed in the context of an institutionalized regime of systematic oppression and domination by one racial group over any other racial group or groups and committed with the intention of maintaining that regime.<br />
<br />
===Other inhumane acts of a similar character===<br />
intentionally causing great suffering, or serious injury to body or to mental or physical health.<br />
<br />
== Notes ==<br />
<br />
*'''Attack directed against any civilian population''' means a course of conduct involving the multiple commission of acts referred to above targeting against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;</div>Achoganhttps://defensewiki.ibj.org/index.php?title=Genocide&diff=2315Genocide2010-06-02T13:40:24Z<p>Achogan: </p>
<hr />
<div>'''Genocide''' means any of the following '''acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group''', as such:<br />
*( a ) Killing members of the group;<br />
**Includes direct killing and actions causing death.<br />
<br />
*( b ) Causing serious bodily or mental harm to members of the group;<br />
**Includes inflicting trauma on members of the group through widespread torture, rape, sexual violence, forced or coerced use of drugs, and mutilation.<br />
<br />
*( c ) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;<br />
**Includes the deliberate deprivation of resources needed for the group's physical survival, such as clean water, food, clothing, shelter or medical services. Deprivation of the means to sustain life can be imposed through confiscation of harvests, blockade of foodstuffs, detention in camps, forcible relocation or expulsion into deserts.<br />
<br />
*( d ) Imposing measures intended to prevent births within the group;<br />
**Includes involuntary sterilization, forced abortion, prohibition of marriage, and long-term separation of men and women intended to prevent procreation.<br />
<br />
*( e ) Forcibly transferring children of the group to another group.<br />
**May be imposed by direct force or by fear of violence, duress, detention, psychological oppression or other methods of coercion. The Convention on the Rights of the Child defines children as persons under the age of 18 years.<br />
<br />
'''It is a crime to plan or incite genocide, even before killing starts, and to aid or abet genocide'''. The following acts shall be punishable:<br />
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*( a ) Genocide;<br />
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*( b ) Conspiracy to commit genocide;<br />
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*( c ) Direct and public incitement to commit genocide;<br />
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*( d ) Attempt to commit genocide;<br />
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*( e ) Complicity in genocide.</div>Achogan