Transcript Investigating torture, legal obligations and methods

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
Content of presentation:
 Review definition, legal obligations and safeguards
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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
Definition:
 Article 1 of Convention Against Torture
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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
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
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
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
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
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
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
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
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
Best Practices:
 Interrogations:
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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
ETHICAL MANDATES REGARDING
THE PROHIBITION AGAINST
TORTURE
Barbara Frey, June 16, 2011
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
Ethical Mandates: Prosecutors
 Article 15 of the UN Guidelines on the Role of
Prosecutors:
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“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
Ethical mandates: Lawyers
 Principle 14 of the UN Basic Principles on the Role of
Lawyers:
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“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
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
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
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
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
Purposes of investigation:
 To establish facts relating to alleged incidents of
torture with a view to:
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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
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
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
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
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
Requirements for Complete and Effective
Investigations
 Investigator must have power to obtain all the
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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
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
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
Investigative bodies, characteristics and functions:
 Fundamental principles of any viable investigation:
competence, impartiality, independence, promptness
and thoroughness.
Barbara Frey, June 16, 2011
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
Independent Investigation:
 When established procedures are inadequate
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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
Determination of the appropriate investigative
body:
 Circumstances triggering the creation of a special
commission of inquiry include:
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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
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
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
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:
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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
INTERVIEWS WITH VICTIMS
AND WITNESSES
Barbara Frey, June 16, 2011
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
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
General considerations:
 Set the ground rules and provide identifying
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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
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
Techniques of Questioning:
 Be aware of physical surroundings, body language; Show
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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
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
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
Psycho-Social History:
 Inquire into pre-trauma history to assess the effects of
the alleged trauma
 If no longer in custody:
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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
Summary of detention and abuse:
 General summary with dates, places, duration of
detention, frequency and duration of abuse
Barbara Frey, June 16, 2011
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
Place and conditions of detention:
 Description of the facilities, including location,
personnel, conditions of rooms, routines.
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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
Methods of torture and ill-treatment
 Initially use open-ended questions to elicit details,
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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
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
Challenges to investigation:
 Torture survivors may have difficulty recounting
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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
Risk of re-traumatization:
 The presence of psychological symptoms in torture
survivors:
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Withdrawal, flat affect
Inability to communicate personal history or suffering
Barbara Frey, June 16, 2011
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
Barbara Frey, June 16, 2011
Psychological impacts on interviewers:
 Be aware of secondary traumatization, or
countertransference reactions:
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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
Barbara Frey, June 16, 2011
Psychological impacts on interviewers:
 Psychologists observe that these reactions are
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important sources of information which mush be
reflected upon, not acted upon.
Counteract negative impacts through
Awareness
Consultation with colleagues, within bounds of
confidentiality
Balance in personal life
Barbara Frey, June 16, 2011
Special Considerations
Barbara Frey, June 16, 2011
Conducting interviews in prisons or detention
centers
 If they are still in detention, they are still at risk
 Risk 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.”
Barbara Frey, June 16, 2011
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
Barbara Frey, June 16, 2011
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.”
Barbara Frey, June 16, 2011
Use of interpreters:
 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
Barbara Frey, June 16, 2011
Use of interpreters:
 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.
Barbara Frey, June 16, 2011
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
Barbara Frey, June 16, 2011
Securing and obtaining physical evidence:
 Sites under investigation will be closed down
 Ensure evidence is collected, handled, packaged and
labeled properly, being kept in a safe.
 Collect and preserve any instrument used in torture.
Barbara Frey, June 16, 2011
Securing and obtaining physical evidence:
 Prepare a plan to scale with pertinent details
 Make 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.
Barbara Frey, June 16, 2011
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
Barbara Frey, June 16, 2011
Questions to be asked for a medical opinion:
 a) Is there a relationship between observed physical and
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psychological evidence and reporting
torture?
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?
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Barbara Frey, June 16, 2011
Conclusions:
 International law establishes a clear obligation to
investigate, prosecute and grant reparations to
victims of torture.
 Challenges include:
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Fear
Systemic problems
Lack of expertise
Lack of resources
Barbara Frey, June 16, 2011
Conclusions:
 Political will + Institutional framework =
 Human rights protection
Barbara Frey, June 16, 2011
Thank you.
Barbara Frey, June 16, 2011