Difference between revisions of "Rwanda Criminal Defense Manual - Client Interview"
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== Client Interview (Mistreatment) ==
== Client Interview (Mistreatment) ==
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== The law in relation to torture and mistreatment ==
Revision as of 09:48, 15 April 2010
Client Interview (Mistreatment)
Whether the aim 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, experience, given a number of cases, or detention visits, all lawyers will forget a few important points or questions. This is why a small checklist can be a necessary and useful reminder.
Client Interview Checklist:
- Exact time and date of arrest.
- Details of the arrest: number of people, role of each in the arrest and, if possible, name and occupation of each.
- Words exchanged, rights evoked,
- Details of placement into custody, whether or not the client knowledge of the infraction when being placed into custody
- Language used, how the client understood the language used
- Conditions and treatment after the arrest, and custody: doctor visits, lawyer visits, whether there was an interpreter, details on interrogators, rest, food, and family.
- Judicial follow-up: transfers to courtroom, summons, notifications, right to a lawyer
This checklist is useful in preparing a defense for various crimes. Through this particular interview, one may find that the client is a victim of torture or other mistreatment.
The law in relation to torture and mistreatment
Even though there is a clear legal difference between torture and mistreatment, particularly as define by international instruments, it does not make much difference for the defender's everyday work. In practice, there is no difference between blows, physical abuses of or insupportable pressure placed on the suspect in order to obtain a confession, or without any particular reason.
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 definition used.
The human being and his integrity are INVIOLABLE, as guaranteed by the Constitution of Rwanda in Article 10, which states that "a human person is sacred and inviolable. The State and all public administration organs have the absolute obligation to respect, protect, and defend him or her."
The Criminal Procedure Code guarantees freedom against torture through exerting control over the judicial police, and the Criminal Code guarantees freedom from torture by setting aside certain actions as infractions.
Thus, the lawyer may use, as needed, any of the aforementioned texts, which address torture or mistreatment, and should be indignant to ANY human suffering.
Remember: We call torture any activity that results in unbearable, and sometimes long term, suffering, whether psychological or physical, and which avoids, or at least delays, death. Its after-effects can be physical, such as mutilations, or psychological, such as trauma. The torturer has total control over the victim, who cannot escape. Possible objectives and motivations for torture:
- Obtaining secret information, confessions;
- Punishment of real or imagined faults;
- Terrorising populations or political organizations, by using members of a specific group as an example, leading to fear and passivity in the rest of the population, who are afraid of becoming victims themselves;
- Sadistic pleasure;
- Psychological preparation used to convince the victim that he is weak, with the aim of obtaining complete submission;
- Self-justification, for the torturer of 'following orders';
Torture is banned by the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Geneva Convention) (adopted by the General Assembly of the United Nations on 10 December 1984, which came into effect the 26 June 1987) and by the third Geneva Convention. Nonetheless, torture is still used throughout the world, often concealed by an imprecise definition, or by vague domestic legislation. Note that there is not enough space to cite all the texts and agreements made available by the United Nations agencies and NGOs on the theme of torture and mistreatment.
The reality is that lawyers are regularly confronted with detainees who have been the victims of mistreatment.