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Legal Investigation of Torture

According to the Istanbul Protocol, investigations into torture should seek to establish the facts of alleged incidents in an effort to identify and facilitate the prosecution of perpetrators and/or secure redress for the victims. When possible, forensic experts should obtain detailed information on the following topics: 1) the circumstances leading up to the torture; 2) the approximate dates and times when the torture occurred; 3) detailed physical descriptions about the people involved in the arrest, detention and torture; 4) the contents of what was asked of or told to the victim; 5) a description of the usual routine in the place of detention; 6) details about the methods of torture and/or ill-treatment used; 7) any instances of sexual assault; 8 ) resulting physical injuries; 9) weapons or physical objects used; and 10) the identity of any witnesses.

When designing commissions of inquiry, states or organisations should be very clear in defining the scope of the investigation. By framing the inquiries in a neutral manner (without predetermined outcomes), allowing for flexibility, and being clear about which events and/or issues are under investigation, the proceedings can achieve greater legitimacy among both commission members and the general public.

Commissions should be given the authority to obtain information by compelling testimonies under legal sanction, ordering the production of State documents, including medical records, and protecting witnesses. In addition, the commissions should be granted the power to conduct on-site visits and issue a public report.

Perhaps most crucial to the legitimacy of any medico-legal investigation is their impartiality. According to the Istanbul Protocol, “…[c]ommission members should not be closely associated with any individual, State entity, political party or other organisation potentially implicated in the torture. They should not be too closely connected to an organisation or group of which the victim is a member, as this may damage the commission’s credibility.”

In addition, commissions should, whenever possible, rely on their own investigators and expert advisers, especially when examining misconduct by members of the government.

Following the inquiry, the commission should issue a public report, with minority members filing a dissenting opinion. These reports should include: the scope of inquiry and terms of reference, as described above; the procedures and methods of evaluation; a list of all testifying witnesses—except for those whose identities are protected—with their age and gender; the time and place that each sitting occurred; all relevant political, social and economic conditions that may have influenced the inquiry; the specific events that occurred and supporting evidence; the commissions’ conclusions; and finally, a set of recommendations. In response to these reports, the State should issue a public statement describing how it plans to heed the commission’s recommendations.

The Istanbul Protocol also includes obligations of governments to ensure minimum standards for the effective investigation and documentation of torture and ill-treatment as stipulated in the Istanbul Principles as mentioned above.