JUNE 16, 2011 BY BARBARA FREY, JD DIRECTOR, HUMAN RIGHTS PROGRAM UNIVERSITY OF MINNESOTA Investigating torture, legal obligations and methods Barbara Frey,

JUNE 16, 2011BY BARBARA FREY, JD

DIRECTOR, HUMAN RIGHTS PROGRAMUNIVERSITY OF MINNESOTA

Investigating torture, legal obligations and methods

Barbara Frey, June 16, 2011

Content of presentation:

Review definition, legal obligations and safeguards against torture

Principles of legal and medical ethics relevant to investigations

Objectives and requirements of the legal investigation of torture

Investigative bodies, characteristics and functions

Interviews with victims and witnessesPhysical evidenceConclusions


Definition:

Article 1 of Convention Against Torture 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.

This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.


Definition: Essential Elements of Torture

Infliction of severe mental or physical pain or suffering,

by or with the consent or acquiescence of the state authorities,

for a specific purpose, such as a confession, gaining information, punishment or intimidation.


Ill-Treatment:

Intentional exposure to significant mental or physical pain or suffering,

by or with the consent or acquiescence of the state authorities.


Prohibition against torture includes requirement to investigate

Article 12 of Convention Against Torture 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.


Safeguards against torture:

Transparency of official interactions with all persons in custody, enforced through consistent and independent monitoring during the entire custodial, administrative and judicial process



Legislative safeguards: domestic legislation that defines the crime of torture, eliminates incentives to torture such as admission of coerced testimony into evidence, eliminates obstacles to prosecution, such as amnesty, statutes of limitation. Legislation must require creation and maintenance of records including medical records documenting the physical state of detainees in the custody of state officials.



Administrative safeguards: the best protective measure is the design, installation and implementation of mechanisms which ensure that, when torture occurs, it will be denounced, documented and brought to the attention of the competent authorities.


Best Practices:

Notification of Rights Any person who is arrested must be informed

immediately of his or her rights; There must be a single and comprehensive custody

record for each detainee noting every action taken with regard to the person;

The government must ensure the enforceable right to habeas corpus, so that the detainee has the right to challenge the legality of his or her detention before a court with the authority to release them.


Best Practices:

Access to detainees: Absolutely no incommunicado detention; Detainees must be allowed to notify a representative

of their custody, such as a family member, legal counsel or, in the case of foreign nationals, a consulate or diplomatic representatives;

The government must provide a medical exam to persons in custody to establish their physical and psychological condition upon arrest.


Best Practices:

Interrogations: The identity of all persons present should be noted in a

permanent record The detainee should be informed of the permissible length

and conditions of an interrogation; Blindfolding or hooding forbidden; The detainee should have the right to have a lawyer

present during any interrogation; Particularly vulnerable persons (such as children, the

elderly, persons with physical or mental disabilities) should have specific safeguards;

Interrogations should be electronically recorded to reduce the risk of torture and ill-treatment; they can also be used by the authorities as a defense against false allegations; detainee should have access.


ETHICAL MANDATES REGARDING THE PROHIBITION AGAINST TORTURE


Ethical mandates: Judges

Principle 6 of the UN Basic Principles on the Independence of the Judiciary: “the principle of the independence of the judiciary entitles and requires the judiciary to ensure that judicial proceedings are conducted fairly and that the rights of the parties are respected.”


Ethical Mandates: Prosecutors

Article 15 of the UN Guidelines on the Role of Prosecutors: “Prosecutors shall give due attention to the

prosecution of crimes committed by public officials, particularly corruption, abuse of power, grave violations of human rights…and, where authorized by law or consistent with local practice, the investigation of such offences.”


Ethical mandates: Lawyers

Principle 14 of the UN Basic Principles on the Role of Lawyers: “Lawyers, in protecting the rights of their clients and

in promoting the cause of justice, shall seek to uphold human rights and fundamental freedoms recognized by national and international law and shall at all times act freely and diligently in accordance with the law and recognized standards and ethics of the legal profession.”


Ethical mandates:

Health care ethics: UN, International professional bodies, and national codes of medical ethics. Central tenet is fundamental duty to act in the best interests of the patient, no matter what constraints, pressures or contractual obligations.


Ethical mandates: Health Care

UN Standard Minimum Rules for the Treatment of Prisoners

Principios de ética médica aplicables a la función del personal de salud, especialmente los médicos, en la protección de personas presas y detenidas contra la tortura y otros tratos o penas crueles, inhumanos o degradantes,

International professional bodies: World Medical Associate’s Declaration of Tokyo


Ethical mandates: Health Care

Principles common to all codes of health-care ethics: duty to provide compassionate care: evolved from

earliest statements of professional values, require doctors to provide care even at some risk to themselves; Hippocratic oath, commitment to benefit and care for patients, and “do no harm”

Informed consent: Patients are the best judge of their own interests; explain to the patient the purpose of the examination and treatment


ISTANBUL PROTOCOL:

first comprehensive instrument to provide the legal and medical professions with tools for investigating, assessing and reporting

allegations of torture. Internationally recognized common standards.

OBJECTIVES AND REQUIREMENTS OF LEGAL

INVESTIGATIOS OF TORTURE


Purposes of investigation:

To establish facts relating to alleged incidents of torture with a view to: identifying those responsible for the incidents; facilitating their prosecution; in other procedures designed to obtain redress for

victims, including financial compensation, medical care and rehabilitation

to design measures to prevent recurrence


Objectives of the investigation:

To determine whether all the elements in the definition of torture were present in the incident.


Useful documentation mirrors the torture definition:

What was done? Who did it?Why was it done?Where was it done?


Objectives of the investigation:

obtain statements from victims; recover and preserve evidence, including

medical evidence, related to the alleged torture;

identify potential witnesses and obtain statements from them concerning the alleged torture;

determine how, when and where alleged incidents of torture occurred as well as any pattern or practice that may have brought about the torture.


Requirements of Fair and Timely Investigations:

Prompt and impartialBy investigators who are competent and

independentMethods must meet highest professional

standardFindings public


Requirements for Complete and Effective Investigations

Investigator must have power to obtain all the information necessary to the inquiry:

budgetary and technical resources for an effective investigation

authority to obligate officials and witnesses to testify

summonses to witnesses and evidenceremove those potentially implicated in torture

from control or power over complainants, witnesses or their families


Rights of victims during the investigation:

informed of and access to any hearings and information relevant to the case

protected from violence, threats of violence or intimidation


Investigative Report:

WrittenWithin reasonable period of timeContents: scope of inquiry, procedures and

methods used, specific findings, conclusions and recommendations

PublicState should reply to report and indicate

steps taken in response


Investigative bodies, characteristics and functions:

Fundamental principles of any viable investigation: competence, impartiality, independence, promptness and thoroughness.


Investigative bodies:

Competence: Capable of evaluating and weighing evidence and exercising sound judgment. If possible, expertise in law, medicine and other specialized fields.

Impartiality: Not closely associated with any individual, state entity, political party or other organization potentially implicated in the torture. Neither closely associated with the alleged victim or any group with which he/she is associated (though not an excuse for blanket exclusions from the commission).

Independence: Reputation for honesty and fairness.


Independent Investigation:

When established procedures are inadequate because of insufficient expertise suspected bias apparent existence of pattern of abuse other substantial reasons

Then, states must use independent commission of inquiry or similar procedure


Determination of the appropriate investigative body:

Circumstances triggering the creation of a special commission of inquiry include: where the victim was last seen unharmed in police

custody; where the modis operandi is recognizably attributable to

State-sponsored torture; where persons associated with the State have attempted

to obstruct or delay the investigation of the torture; where public interest would be served by an independent

inquiry, and where the work of regular investigative agencies is in

question b/c of lack of expertise or lack of impartiality or the importance of the matter, or the apparent existence of a pattern of abuse.


Support for Commission of Inquiry:

Adequate technical and administrative resources;

Access to objective, impartial legal advice to ensure the investigation will produce admissible evidence for criminal proceedings.

Access to international community of experts.


Support for Commission of Inquiry:

authority to obtain all information necessary, to compel testimony and to order production of documents

authority to issue a public reportauthority to conduct on-site visits, including

to site of alleged torture


Procedural Safeguards for Subjects of Inquiry:

minimum guarantees prior to trial, including right to be represented by counsel, not be required to testify against themselves;

If subject to criminal charges, then due process rights: an impartial, independent, and competent tribunal

established by law presumption of innocence until and unless proven guilty equal access to and equal treatment before the law a public hearing unless certain narrowly construed

exceptions exist right to be tried without undue delay/ within a

reasonable time


INTERVIEWS WITH VICTIMS AND WITNESSES


Purpose of the Legal Interview:

to obtain the most accurate and detailed account of the incidents, to understand clearly what happened


REMEMBER YOU ARE INTERVIEWING A HUMAN BEING WHO HAS UNDERGONE TRAUMA.

YOUR INTERVIEW MAY ASSIST IN THE PROCESS OF

PREVENTING TORTURE BY GETTING FACTS OF CASE --BUT THE PERSONAL COST TO THE VICTIM MAY BE TOO

HIGH

DO NO HARM


General considerations:

Set the ground rules and provide identifying information

Secure informed consentConfidentiality: no one named or identified

without informed consentSetting: comfortable and secure, ensure

privacyGenuine and effective support during and

after the interview, including providing rehabilitation, if needed


General considerations:

Interview in pairs, to assist with difficult emotional situations, allow for gender balance, take notes, and watch for gaps in questioning.

Record or take notes of the interview with the consent of the witness, but explain how these records will be used

Ensure protection against intimidation or pressure against witness and family members, leave a card with contact information and a suggested plan of action


Techniques of Questioning:

Be aware of physical surroundings, body language; Show respect in tone, language and attitude.

-Allow time for general discussion of concerns of witness; Listen!

Acknowledge pain and distress, but maintain professional boundaries, do not create unreasonable expectations

Allow for breaksDon’t ask leading questions or attempt to frame

narrativeEncourage the interviewee to use his or her own

wordsFinish by bringing conversation around to less

sensitive topics


Content of the interview with presumed victim:

The circumstances that led to torture, including arrest, abduction and/or detention.

Dates and approximate times of torture, indicating the date of the last interrogation/torture.

A detailed description of the persons involved in the arrest, detention and torture

What was said or asked of the victim during interrogations.


Content of the interview with the presumed victim:

Physical injury sustained during tortureA description of weapons or other physical

objects used during tortureThe identity of witnesses of the torture.


Psycho-Social History:

Inquire into pre-trauma history to assess the effects of the alleged trauma

If no longer in custody: daily life, relations with friends and family, work or school, occupation, interests and future plans current sources of stress, use of alcohol or drugs, ability to be productive and to care for family members and the availability of social support.

If in custody, document pre-trauma history, current situation


Summary of detention and abuse:

General summary with dates, places, duration of detention, frequency and duration of abuse


Circumstances of detention:

Description of specific details concerning the initial detention. Use open ended questions that allow the witness to tell his or her story, followed by questions eliciting important details, such as

Where were you and what were you doing at the time of arrest?

Describe the appearance of those who arrested you?

What was said during their encounter with you?


Place and conditions of detention:

Description of the facilities, including location, personnel, conditions of rooms, routines. What was the physical layout? What did you see, hear and smell? Who were other witnesses, detainees, guards? Did you have any contact with family or lawyers?


Methods of torture and ill-treatment

Initially use open-ended questions to elicit details, don’t suggest forms of abuse that might lead to embellishment. Questions should bring out a coherent narrative account:

Where did the abuse take place, for how long? Describe the room, who was present, what

objects you observed? Were you blindfolded? Who said what during the interrogation?


Methods of torture and ill-treatment

For each form of abuse note: body position, restraint, nature of contact, duration, frequency, anatomical location, and area of body affected.


Challenges to investigation:

Torture survivors may have difficulty recounting specific details of the torture:

Factors during torture itself, i.e., blindfolding, drugging, lapses of consciousness;

Fear of placing oneself or others at riskLack of trust in interviewer or interpreterPsychological or neurological damage of

torture and traumaProtective coping mechanisms, denial and

avoidance


Risk of re-traumatization:

The presence of psychological symptoms in torture survivors: Withdrawal, flat affect Inability to communicate personal history or suffering


Risk of re-traumatization

To counteract these symptoms: Explain process and what to expect Do not press interviewees for answers Allow for breaks Show empathy Be prepared with referral information


Psychological impacts on interviewers:

Be aware of secondary traumatization, or countertransference reactions: Avoidance, withdrawal and indifference, which may

lead to forgetting some details or underestimating the severity of physical or psychological consequences;

Disillusionment, hopelessness Feelings of insecurity about one’s professional skills

or ability to make a difference Anger or repugnance against the persecutor and/or

the victim, resulting in doubt about the truth of the alleged torture history


Psychological impacts on interviewers:

Psychologists observe that these reactions are important sources of information which mush be reflected upon, not acted upon.

Counteract negative impacts throughAwarenessConsultation with colleagues, within bounds

of confidentialityBalance in personal life


Special Considerations


Conducting interviews in prisons or detention centers

If they are still in detention, they are still at riskRisk factors: Unless the interviewer is certain

s/he can guarantee the safety of any prisoner interviewed, documentation inside detention should not be pursued (Do No Harm)

Establishing trust: Must be seen in private, no guards or potential for listening by others. Hernan Reyes: “It cannot be repeated enough that empathy – real and not merely formal and institutional – is a paramount condition for anyone working with victims of torture and aiming to earn their trust.”


Issues related to Gender:

Leave choice to witness: depends on cultural and personal factors, especially with regard to sexual violence

Best practice: team includes both genders


Use of interpreters:

Avoid using local persons or family members unless absolutely necessary

Talk directly to the witness, establish rapport and maintain eye contact

Phrase questions directly to the witness: “what did you do next?” instead of through the interpreter: “ask him what he did next.”



Make sure the interpreter: knows and agrees to keep what they hear and

interpret strictly confidential is aware of the nature of the interview and familiar

with common terms that may be used, including descriptions of torture



Make sure that interviewee: agrees to the use of an interpreter and Is aware that the interpreter has a professional duty

to respect the confidentiality of the interview.


Securing and obtaining physical evidence:

Gather all possible physical evidence Document the chain of custody

Unrestricted access may be initially difficult Must have unrestricted access to the alleged scene

of torture, including buildings, vehicles, offices, prison cells and other facilities



Sites under investigation will be closed downEnsure evidence is collected, handled,

packaged and labeled properly, being kept in a safe.

Collect and preserve any instrument used in torture.



Prepare a plan to scale with pertinent detailsMake color photographs of the same

elements This will include information of all who were

present on the premises or area under investigation to determine whether they were witnesses of torture

Collect all the writings, records or documents for possible use as evidence and a handwriting analysis.


Medical and psychological evidence:

Schedule a medical examination of the alleged victim as soon as possible.

Be sure to include the need to treat injuries and illnesses, psychological help, advice and monitoring


Questions to be asked for a medical opinion:

a) Is there a relationship between observed physical and psychological evidence and reportingtorture?

b) What physical conditions contribute to the clinical picture?

c) Are the psychological findings observed typical reactions to extreme stress within the cultural and social context of the individual?

d) At what point of the recovery process is the subject?e) What other stressors have an impact relating to

problems observed in the victim?f) Does the clinical picture suggests a false allegation of

torture?


Conclusions:

International law establishes a clear obligation to investigate, prosecute and grant reparations to victims of torture.

Challenges include: Fear Systemic problems Lack of expertise Lack of resources


Conclusions:

Political will + Institutional framework = Human rights protection


Thank you.


JUNE 16, 2011 BY BARBARA FREY, JD DIRECTOR, HUMAN RIGHTS PROGRAM UNIVERSITY OF MINNESOTA Investigating torture, legal obligations and methods Barbara Frey,

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