Lawyers are key interlocutors for survivors of torture seeking justice and other forms of reparation. Equally, they may play a vital role in persuading governments to comply with their international obligations to refrain from acts of torture and to implement preventative measures. If lawyers are familiar with the applicable international standards, they may seek to interpret and apply domestic law in light of these standards, and may cite such standards in their legal argument, pleadings and complaints.
The Istanbul Protocol states that lawyers have a duty in carrying out their professional functions to promote and protect human rights standards and to act diligently in accordance with law and recognised standards and ethics of the legal profession. Other human rights instruments, such as the “UN Basic Principles on the Role of Lawyers”,[1] set out the duty of lawyers to assist clients “in every appropriate way” and to take legal action to protect their interests.
International standards to investigate torture are primarily formulated as obligations of States, as reflected in Chapter III of the Istanbul Protocol. However, lawyers play a crucial and active role in the documentation and investigation of torture, in particular by:
(i) documenting torture for use in legal or other proceedings, including future proceedings where national mechanisms at the time are unavailable or ineffective;
(ii) collecting evidence of torture that may prompt authorities to open or reopen an investigation;
(iii) providing evidence of torture that supports ongoing investigations or prosecutions at the national or international level;
(iv) recording the failure to investigate in spite of the availability of evidence or the shortcomings of any investigations undertaken with a view to prompting further investigations, including by taking cases to regional or international human rights bodies;
(v) collecting evidence to support reparation claims brought at the national or international level before judicial or administrative bodies.
The Istanbul Protocol highlights the important role of medical professionals in the documentation of torture and sets out detailed guidelines on methodology for obtaining medical evidence, including the recommended content of medical reports.
It is important for lawyers working with torture survivors to know how torture can be medically documented and how to recognise the physical and psychological symptoms of torture. This will not only help them to better understand their clients and assist them but equally, such insights are extremely important when lawyers lodge complaints of torture or other forms of ill-treatment on the survivors’ behalf. As recognised in the Istanbul Protocol, lawyers and doctors need to work closely together to effectively investigate and document acts of torture. Medical evidence may convincingly demonstrate that torture has occurred. It will also assist lawyers to determine victims’ claims for reparations (e.g., restitution, compensation and rehabilitation). Similarly, lawyers will need to assess whether the official investigation undertaken by the police or other competent body took into account proper medical evidence or whether they need to arrange for independent medical examinations to attest to the victim’s version of the events.
[1] See UN Basic Principles on the Role of Lawyers, adopted by the Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, 27 August-7 September 1990.
