Investigating torture, legal obligations and methods

1. Investigating torture, legal obligations and methods June 16, 2011 By Barbara Frey, JD Director, Human Rights Program University of Minnesota Barbara Frey, June 16, 2011

2. 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 witnesses • Physical evidence • Conclusions Barbara Frey, June 16, 2011

3. 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. Barbara Frey, June 16, 2011

4. 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. Barbara Frey, June 16, 2011

5. Ill-Treatment: • Intentional exposure to significant mental or physical pain or suffering, • by or with the consent or acquiescence of the state authorities. Barbara Frey, June 16, 2011

6. 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. Barbara Frey, June 16, 2011

7. 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 Barbara Frey, June 16, 2011

8. Safeguards against torture: • 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. Barbara Frey, June 16, 2011

9. Safeguards against torture: • 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. Barbara Frey, June 16, 2011

10. 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. Barbara Frey, June 16, 2011

11. 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. Barbara Frey, June 16, 2011

12. 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. Barbara Frey, June 16, 2011

13. ETHICAL MANDATES REGARDING THE PROHIBITION AGAINST TORTURE Barbara Frey, June 16, 2011

14. 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.” Barbara Frey, June 16, 2011

15. 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.” Barbara Frey, June 16, 2011

16. 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.” Barbara Frey, June 16, 2011

17. 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. Barbara Frey, June 16, 2011

18. 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 Barbara Frey, June 16, 2011

19. 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 Barbara Frey, June 16, 2011

20. OBJECTIVES AND REQUIREMENTS OF LEGAL INVESTIGATIOS OF TORTURE 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. Barbara Frey, June 16, 2011

21. 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 Barbara Frey, June 16, 2011

22. Objectives of the investigation: • To determine whether all the elements in the definition of torture were present in the incident. Barbara Frey, June 16, 2011

23. Useful documentation mirrors the torture definition: • What was done? • Who did it? • Why was it done? • Where was it done? Barbara Frey, June 16, 2011

24. 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. Barbara Frey, June 16, 2011

25. Requirements of Fair and Timely Investigations: • Prompt and impartial • By investigators who are competent and independent • Methods must meet highest professional standard • Findings public Barbara Frey, June 16, 2011

26. 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 evidence • remove those potentially implicated in torture from control or power over complainants, witnesses or their families Barbara Frey, June 16, 2011

27. 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 Barbara Frey, June 16, 2011

28. Investigative Report: • Written • Within reasonable period of time • Contents: scope of inquiry, procedures and methods used, specific findings, conclusions and recommendations • Public • State should reply to report and indicate steps taken in response Barbara Frey, June 16, 2011

29. Investigative bodies, characteristics and functions: • Fundamental principles of any viable investigation: competence, impartiality, independence, promptness and thoroughness. Barbara Frey, June 16, 2011

30. 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. Barbara Frey, June 16, 2011

31. 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 Barbara Frey, June 16, 2011

32. 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. Barbara Frey, June 16, 2011

33. 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. Barbara Frey, June 16, 2011

34. 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 report • authority to conduct on-site visits, including to site of alleged torture Barbara Frey, June 16, 2011

35. 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 Barbara Frey, June 16, 2011

36. INTERVIEWS WITH VICTIMS AND WITNESSES Barbara Frey, June 16, 2011

37. Purpose of the Legal Interview: • to obtain the most accurate and detailed account of the incidents, to understand clearly what happened Barbara Frey, June 16, 2011

38. DO NO HARM 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 Barbara Frey, June 16, 2011

39. General considerations: • Set the ground rules and provide identifying information • Secure informed consent • Confidentiality: no one named or identified without informed consent • Setting: comfortable and secure, ensure privacy • Genuine and effective support during and after the interview, including providing rehabilitation, if needed Barbara Frey, June 16, 2011

40. 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 Barbara Frey, June 16, 2011

41. 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 breaks • Don’t ask leading questions or attempt to frame narrative • Encourage the interviewee to use his or her own words • Finish by bringing conversation around to less sensitive topics Barbara Frey, June 16, 2011

42. 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. Barbara Frey, June 16, 2011

43. Content of the interview with the presumed victim: • Physical injury sustained during torture • A description of weapons or other physical objects used during torture • The identity of witnesses of the torture. Barbara Frey, June 16, 2011

44. 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 Barbara Frey, June 16, 2011

45. Summary of detention and abuse: • General summary with dates, places, duration of detention, frequency and duration of abuse Barbara Frey, June 16, 2011

46. 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? Barbara Frey, June 16, 2011

47. 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? Barbara Frey, June 16, 2011

48. 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? Barbara Frey, June 16, 2011

49. 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. Barbara Frey, June 16, 2011

50. 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 risk • Lack of trust in interviewer or interpreter • Psychological or neurological damage of torture and trauma • Protective coping mechanisms, denial and avoidance Barbara Frey, June 16, 2011