Combating Torture A Manual for Judges and Prosecutors By Conor Foley
Manual links:	website home page
Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices
4 Conducting investigations and inquiries into acts of torture: section links...
Conducting investigations and inquiries into acts of torture - Responding to allegations of torture - Principles governing investigations - Medical evidence - Conducting interviews - Interviewing alleged torture victims - Interviewing alleged victims of sexual violence - Interviewing children and juveniles - Interviewing suspects - Identifying other witnesses - Witness protection issues

Conducting investigations and inquiries into acts of torture

4.1 This chapter outlines how prosecutors and judges should conduct investigations and inquiries into acts of torture. It discusses how they should respond to allegations and gather evidence. It also provides advice on interviewing victims, witnesses and suspects and protecting witnesses during investigations and trials.

4.2 The responsibility to carry out such investigations and inquiries is firmly established in international law. The Convention against Torture requires states parties of their own initiative to carry out investigations of torture, even if there has not been a formal complaint, and to provide individuals with a right to complain, to have their complaints investigated and to be offered protection against any consequent threats or ill-treatment.¹ The same obligations apply in respect of other cruel, inhuman or degrading treatment or punishment.²

4.3 The Human Rights Committee has commented that the right to lodge complaints against torture or other forms of ill-treatment must be recognised in domestic law. Complaints must be investigated promptly and impartially by competent authorities. States must also hold those responsible to account for such acts whether the involvement has been through 'encouraging, ordering, tolerating or perpetrating' them.³ The European Court of Human Rights has held that states are obliged to investigate all 'arguable claims' of torture and that this is implicit both in the notion of the right to an effective remedy and the right to be protected from acts of torture.⁴ It has stated that 'where an individual is taken into police custody in good health but is found to be injured at the time of release, it is incumbent on the state to provide a plausible explanation as to the cause of the injury.'⁵ Where an individual raises an arguable claim that he has been seriously ill-treated by agents of the state the authorities are obliged to carry out an effective and independent official investigation -- including the taking of witness statements and the gathering of forensic evidence -- capable of leading to the identification and punishment of those responsible.⁶ Without such a duty to investigate the Court noted that 'the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the state to abuse the rights of those within their control with virtual impunity.'⁷ The Inter-American Court of Human Rights has similarly found the failure to mount an investigation to be a violation of the right to be protected against torture and inhuman treatment.⁸

4.4 The Special Rapporteur on Torture has stated that 'when a detainee or relative or lawyer lodges a torture complaint, an inquiry should always take place ... Complaints about torture should be dealt with immediately and should be investigated by an independent authority with no relation to that which is investigating or prosecuting the case against the alleged victim.'⁹

Responding to allegations of torture

4.5 When a detainee or relative or lawyer lodges a torture complaint, an inquiry must always take place promptly. In all cases of death occurring in custody or shortly after release, an inquiry must be held by judicial or other impartial authorities.

4.6 The process of registering a complaint should be straightforward and, initially, confidential. The existence of complaint mechanisms should be widely publicised and people encouraged to report all acts of torture or other forms of ill-treatment. If it is necessary to fill in a form to make a complaint these should be widely available and in all commonly spoken first languages. It should be possible to pass complaints to the body in a sealed envelope so that they cannot be read by custodial staff who come into contact with the complainant. The complaints body should acknowledge receipt of the complaint promptly. Where the case is current, and an individual is at risk, it should be acted upon immediately. In all cases there should be tight time-limits or targets for investigating and answering complaints. Victims and their legal representatives should have access to information relevant to the investigation.

4.7 Victims and witnesses should also be protected during and after investigations. Those implicated by the investigation should be removed from any position of control or power, whether direct or indirect, over complainants, witnesses and their families, as well as those conducting the investigation. Unless the allegation is manifestly ill-founded, public officials involved should be suspended from their duties pending the outcome of the investigation and any subsequent legal or disciplinary proceedings. In cases where current inmates are at risk, they should be transferred to another detention facility where special measures for their security can be taken. Where appropriate, victims and witnesses to acts of torture should be placed in witness protection programmes. Witness protection programmes should be open to all victims and witnesses to acts of torture, regardless of whether they have criminal convictions.

Principles governing investigations

4.8 Inquiries and investigations may be carried out by Prosecutors, Magistrates and Judges, National Human Rights Institutions (such as Ombudsmen and Human Rights Commissions in some countries) or Inspectorates depending on the nature of the country's legal system. Some countries may also develop specialised 'torture investigation units' within a particular institution -- such as the Office for Public Prosecution.

4.9 Inquiries may also take the form of internal investigations by the police or other law enforcement bodies with a view to possible disciplinary sanctions or referral to the prosecuting authorities; judicial inquiries or coroner's inquests into deaths, judicial commissions of inquiry into a specific pattern of abuse or a major incident; specialised complaints investigation bodies responsible for directly investigating police abuses or supervising internal investigations. Where the findings reveal prima facie evidence of a crime, then a criminal investigation should always follow.

4.10 Prosecutors and judges who are involved in conducting investigations should, wherever possible, ensure respect for the following principles:

• Investigations should be carried out by competent, qualified and impartial experts, who are independent of the suspected perpetrators and the agency that they serve.
• Investigators should have access to all necessary information, budgetary resources and technical facilities to investigate fully all aspects of complaints.
• Investigators should have unrestricted access to places of custody, documents and persons. The investigative body should be entitled to issue summonses to witnesses, to demand the production of evidence and to seize all relevant operational orders and related briefing materials.

The findings of all investigations should be made public.

4.11 Even when a complaint of torture or ill-treatment is not upheld by an investigation, it is important to ensure that the investigation has been properly conducted and can be shown to have been properly conducted. The complainant should be given a reasoned decision in writing which sets out the evidence as well as the finding once the investigation is completed. There should be a clearly auditable trail established, which demonstrates that a robust, impartial and expeditious investigation took place and why it reached its particular conclusions. The conduct of each investigation should also be regularly reviewed and the findings recorded so that best-practices can be identified and the 'lessons learned' can help to improve the quality of future investigations.

4.12 Investigations should clarify the facts about allegations of torture, identify any patterns relating to these practices and recommend measures needed to prevent their recurrence. The investigation should aim to identify not just those responsible for the torture or ill-treatment, but also those responsible for the supervision of the detainee when it occurred, as well as those responsible for the supervision and management of these staff, and any patterns of alleged torture or ill-treatment that may be identified.

4.13 The purpose of such an investigation is to uncover the truth about an allegation. If there is substance to the allegation then the investigations must also gather evidence for three distinct purposes:

• Disciplinary action against those responsible;
• Criminal prosecution of those responsible;
• Compensation for the victim and full reparations and redress from the state.

4.14 The standard of proof may be different for each of the above and -- even where it has been carried out expeditiously -- considerable time may elapse between the different phases of the investigation. It is vital that the evidence collected is of a sufficient quality to be used for all of the above purposes and can be used to corroborate or disprove any allegations to the required standard.

4.15 One of the most important aspects of any investigation into possible cases of torture or other forms of ill-treatment is the systematic recording of why various lines of enquiry were pursued, or why they were not pursued. The detailed recording of such decisions and the reasons for making each decision should be a matter of course. All actions performed and information received must also be recorded accurately and a definitive record maintained for subsequent use at any court or tribunal.

4.16 The following is a basic check-list for investigators:

• All incidents should be investigated as potential crimes of torture or ill-treatment until the contrary is proved;
• The investigation should be planned and structured to ensure that all information received is acted upon and that urgent inquiries are conducted so as to establish the facts quickly and accurately;
• The circumstances should be investigated thoroughly and impartially. All information should be recorded and documented to ensure that the highest levels of evidence can be presented before a court or tribunal;
• All parties should be provided with appropriate levels of information, whilst care is taken not to impede the progress of the investigation;
• Victims and witnesses must be properly protected during the investigation and every effort should be made to ensure that those implicated are not able to obstruct or subvert the inquiry;
• Victims of torture or ill-treatment must be handled sensitively at all times and provided with appropriate support. Care should be taken not to re-traumatise them during the investigation;
• Where the torture or ill-treatment has resulted in a death similar consideration should be shown to relatives, partners and next of kin;
• The investigation should take full account of vulnerable persons involved;
• The investigation should also be sensitive to factors such as race, sex, sexual orientation and the nationality, political or religious beliefs, and social, cultural or ethnic background of the alleged victims or perpetrators.

4.17 Investigations into acts of torture should follow the same principles as investigations into any other serious crime. The main difference is that the suspected crime may have been committed by law enforcement officials, or other state officials, which it makes it more difficult to deal with than other forms of criminality. Crimes of torture are often also committed in places closed to the outside world, with no independent witnesses. Evidence may be destroyed or concealed and there may be a culture of silence by the law enforcement or state officials suspected. Victims and witnesses may also be intimidated into remaining silent.

4.18 Any investigation is mainly a matter of obtaining, recording, refining and interpreting evidence gathered. The gathering, preservation and production of this material is the job of the investigator. It is for a court to weigh the evidential value of this material. In all investigations it is vitally important to:

• identify the 'scene of the crime',
• protect the 'scene of the crime',
• secure the 'scene of the crime'.

Most torture occurs in places where people are held in some form of custody, so preserving physical evidence or having unrestricted access to the scene may be difficult. Investigators should be given authority to obtain such access to any place or premises, and be able to secure the setting where torture allegedly took place. Otherwise the investigation risks being compromised through the movement of exhibits, the obliteration of evidence, the loss of evidence or additional evidence being added.

4.19 Investigators should document the chain of custody involved in recovering and preserving physical evidence in order to use such evidence in future legal proceedings, including potential criminal prosecution. The investigator should look for the presence or absence of elements that support or disprove the allegation, and any evidence of a pattern of such practices.

4.20 Investigators must obey domestic laws and rules, including the presumption of innocence, and giving warnings, where appropriate, to those who are being investigated. Investigators should also keep an open mind, be patient, listen to what they are told and show tact and sensitivity, particularly when dealing with torture victims.

4.21 The following is a basic check-list for a 'scene of the crime' torture investigation:

• Any building or area under investigation should be closed off so as not to lose any possible evidence. Only investigators and their staff should be allowed entry into the area once it has been designated as under investigation;
• Material evidence must be properly collected, handled, packaged, labelled and placed in safekeeping to prevent contamination, tampering with or loss of evidence. If the alleged torture has taken place recently enough for such evidence to be relevant, any samples found of body fluids (such as blood or semen), hair, fibres and threads, should be collected, labelled and properly preserved;
• Any implements that could potentially be used to inflict torture should be taken and preserved;
• If recent enough to be relevant, any fingerprints located, should be lifted and preserved;
• A labelled sketch of the premises or place where torture has allegedly taken place, should be made to scale, showing all relevant details, such as the location of different floors in a building, different rooms, entrances, windows; furniture, surrounding terrain, etc.;
• Photographs should be taken at the scene of the crime with a polaroid camera, where this is available, so that relevant details can be marked or highlighted at the time of the inspection;
• Photographs should also be taken at the scene with a standard camera so that the negatives can be stored and multiple copies made so that these can be subsequently used in evidence;
• Photographs should be taken of any injuries received, in colour, and using a ruler and colour chart to show the size and severity of these injuries;
• A record of the identity of all persons at the alleged torture scene should be made, including complete names, addresses and telephone numbers or other contact information;
• All clothing of the person alleging torture should be taken, and tested at a laboratory, if available, for bodily fluids and other physical evidence;
• All clothing of the persons allegedly responsible for carrying out the torture should also be taken for forensic examination;
• Any relevant papers, records or documents should be saved for evidentiary use and handwriting analysis.

Medical evidence

4.22 Medical evidence is vital for most torture investigations. Torture often does not leave physical traces or long-term physical marks. Conversely, not all marks or injuries suffered by a detainee are the result of torture as they may be the product of other causes. However, medical evidence can demonstrate that injuries or behaviour patterns recorded in the alleged victim are consistent with the torture he or she has described or alleged. Sophisticated medical techniques can often detect soft tissue or nerve trauma that might not be visible to the naked eye. A competent forensic medical examiner can also detect even minor signs of injury if he or she has early access to the person who has been tortured or ill-treated.

4.23 Torture usually leaves psychological trauma and the evidence of this can also be collected. The psychological symptoms of torture are often subjective and relate to changed patterns of behaviour or evidence of stress, that could have a variety of causes. Nevertheless, a psychological assessment should be sought where this is practical. Where there is a combination of physical and psychological evidence consistent with an allegation, this will strengthen the overall value of the medical evidence.

4.24 Where medical examinations are carried out upon arrival at a place of detention, it is particularly useful to ask to see the medical report of the first examination and all subsequent medical reports. Doctors and other medical personnel should also be interviewed about the circumstances in which they conducted their examinations. For example:

• Were they able to carry out an independent examination?
• Was anyone present during the examination?
• Did they issue a medical report?
• What did it say?
• Did the victim have any obvious signs of injury at the time?
• Was any attempt made to interfere with the medical report or was the doctor put under pressure to alter their findings in any way?

4.25 In many countries, both therapeutic and forensic medical examinations are carried out by the same health professionals. One of the difficulties of therapeutic medical examinations, which are more concerned with treating the symptoms of the patient, may be that injuries are described without listing a probable cause. The objective of forensic medicine is to establish the causes and origins of injuries, and is a specialised field. A proper forensic medical examination should always be carried out during an investigation into alleged acts of torture. The report of that investigation should document:

• a full account of statements made by the person concerned which are relevant to the medical examination (including a description of the person's state of health and any allegations of ill-treatment);
• a full account of the medical findings based on a thorough examination of the person concerned;
• conclusions that indicate the degree of consistency between the allegations made and the objective medical findings.

4.26 When obtaining medical evidence relating to torture it is also important for the investigator to show full respect for medical ethics and patient confidentiality. This issue, and others relating to the investigation and documentation of torture allegations, is discussed in more detail in the Istanbul Protocol, Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.¹⁰

Conducting interviews

4.27 The general rules for conducting interviews with victims, witnesses and suspects during any criminal or disciplinary investigation also apply to interviews during investigations into acts of torture. The role of the investigative interview is to obtain accurate and reliable information from suspects, witnesses or victims in order to discover the truth about matters under investigation. When conducting interviews it is important to develop a trusting and professional relationship between interviewer and interviewee, consider the location and setting in which the interview takes place, and be patient and methodical. This issue is also considered in detail in the Istanbul Protocol.¹¹

4.28 Interviews can be valuable sources of information, but are only one part of the whole evidence gathering process and investigators should not over-rely on interviews. They should also be particularly aware of the dangers of over-reliance on confessions. Particular care should be taken to respect the rights of potential suspects. On no account should an interview be conducted with someone who might subsequently be charged with a criminal offence in relation to the investigation, in circumstances where that statement would then be ruled inadmissible.

4.29 Interviews should be approached with an 'open mind' and information obtained should always be tested against what the interviewer already knows or what can reasonably be established. When questioning anyone, the interviewer must act fairly in the circumstances of each individual case, but the interviewer is not constrained by the rules applied to lawyers in a court. Interviewers are not bound to accept the first answer given and questioning is not unfair merely because it is persistent. Even when a suspect exercises the right of silence, the interviewer will have the right to put questions and record any response, or lack of response.

4.30 The interviewer should also be familiar with the cultural and religious beliefs of the interviewee. This may prevent any inaccurate assumptions being made based on the individual's behaviour. The interviewer should also be careful not to make assumptions based on his or her own cultural background. Vulnerable people, whether victims, witnesses or suspects must be treated with particular consideration at all times and rules governing their treatment must be strictly adhered to.

4.31 As a basic check-list, the interviewer should:

• Know as much as possible about the alleged crime and circumstances.
• Know what evidence is already available.
• Know what explanations he or she requires from the interviewee.
• Know the 'points to prove' for the offence under consideration.
• Know as much as possible about the person being interviewed.

The circumstances of the interview should always be recorded, and the substance of the interview -- questions, answers, and any occurrences -- should be transcribed or recorded, verbatim, at the time (in writing if not by electronic means).

Interviewing alleged torture victims

4.32 The questioning of an alleged torture victim will usually be of critical importance to an investigation as the main evidence in many cases will be his or her testimony, together with any medical evidence.

4.33 Interviews must be conducted in a sensitive manner and allowance should be made for the interviewee's physical and emotional state. Particular care should be taken to avoid re-traumatising the interviewee or placing them in further danger. The interview may also need to be conducted in several stages and over a period of time as some details of what happened may not emerge until the interviewer has won the interviewee's trust. Indeed, it may be advisable for the interviewer to spend some time discussing matters other than the alleged ill-treatment in order to establish a 'climate of confidence' which will make it easier to discuss more sensitive subjects.

4.34 The basic aim of the interview is to obtain as detailed a factual record as possible of:

• What was done?
• When was it done?
• Where did it occur?
• Who did it?
• How often was it done?
• Why was it done?
• What have been the effects?

4.35 The more direct the source of the information, the greater the level of detail and the more consistent the account, the greater its credibility will be. However, allowance should be made for some inconsistencies. For example, a victim may be scared, confused or suffering from post-traumatic stress. The interviewee may have been intimidated into making an earlier false statement. He or she may also have delayed making a complaint until it was safe to do so. Inconsistencies do not necessarily mean that an allegation is false. The interviewee may also have found some questions difficult to understand. Inconsistencies can sometimes be resolved by asking the same question in a different way or coming back to it in subsequent interviews.

4.36 The following check-list for investigators when conducting interviews with alleged torture victims has been produced by the Human Rights Centre at the University of Essex:¹²

• The circumstances leading up to the torture, including arrest or abduction and detention. Had the interviewee received any threats prior to their arrest? In what manner was the person arrested and did he or she suffer any injuries during the course of this arrest? Did anyone witness the arrest? Did the interviewee suffer any ill-treatment before being taken into custody?
• The place where the interviewee was held, including the name and location of the institution.
• How long the interviewee was held.
• Was the interviewee transferred from one institution to another? If so, where to, by whom and on what approximate dates? How did he or she get there? Was any reason given for the transfer? If it was temporary, how long did it last?
• Approximate dates and times of the alleged torture, including when the last instance occurred.
• A detailed description of those involved in the arrest, detention and alleged torture.
• Contents of what the interviewee was told or asked.
• Description of the usual routine in the place of detention and the pattern of alleged torture.
• Description of the facts of the alleged torture, including methods of torture and a description of weapons or other physical objects used.
• Any distinctive things about the room in which the alleged torture occurred. If appropriate the interviewee might be asked to draw a diagram of the location and lay-out of the room in which the alleged torture occurred.
• Whether the interviewee was sexually assaulted.
• Physical injuries sustained in the course of the alleged torture.
• The identity of any other witnesses to the events -- such as co-detainees and any civilian staff of the institution.
• Were any medical personnel present just before, during or after the alleged torture--if so, did they identify themselves and what was their role?
• Did the interviewee receive any medical treatment, immediately or any time later, including on release? Was the doctor able to carry out an independent examination? Was anyone present during the examination? Did the doctor issue a medical report? What did it say?
• Did the interviewee complain to anyone about his or her treatment or tell anyone in authority? What was the response? Was any investigation carried out? What did it involve? Were any witnesses interviewed? Were the alleged perpetrators interviewed?
• Has the interviewee had any contact with the officials who took him or her into custody (or other officials from the same service or agency) since the incident?

4.37 A statement taken for use in a judicial investigation should be made in the first person and can include considerable detail about how the detainee felt at particular stages. The interviewee should be asked, wherever possible, to relate what happened to more everyday experiences, including any familiar sensations that he or she encountered. For example: How did the interviewee know that a room was a particular size? What did a particular smell remind him or her of? Who did one of the officers look like (if, for example, they resembled a TV personality or another well-known personality)? This type of questioning will provide additional information for corroboration, and may help identify inconsistencies or prompt the interviewee to remember more about what happened to him or her. Attention should also be paid to the interviewee's senses other than sight -- such as what he or she could hear, smell or touch. This will be particularly important if the interviewee was blindfolded for part of his or her time in detention or interrogation.

4.38 The sort of information that needs to be recorded includes:

• Location of the room within the institution: Did the interviewee have do go upstairs or down, if so, roughly how many steps or flights of stairs; what could he or she hear and smell; did the interviewee notice any landmarks on the way; if there was a window in the room could anything be seen outside?
• The room itself: What size was it; what were the walls, floor, ceiling, door made of; what shape was it and was there anything unusual or distinctive about it?
• Others held in the room: Were any other people held there; if so, how many; and are any of them possible witnesses; would they have noticed anything about the state of health of the alleged victim; what state of health were the other people in?
• Isolation: If the interviewee was held in isolation, for how long and in what manner?
• Content of the room: What was in the room--bedding, furniture, toilet, sink?
• Climate of the room: What was the temperature like; was there any ventilation; was there any dampness?
• Light: Was there any light; was it natural light from a window, or electric light; if it was electric light, how much of the time was it on; what did the light look or feel like, e.g. colour, intensity?
• Hygiene: Were there any facilities for personal hygiene; where and how did the interviewee go to the toilet or bathe; what was the general hygiene of the place like; and was it infested in any way?
• Clothes: What clothes did the interviewee wear and could he or she wash or change these?
• Food and drinking water: How often and how much food and water was given; what was the quality like; who provided it; was it provided free of charge?
• Exercise: Was there any opportunity to leave the cell and, if so, for how long and how often?
• Regime: Were there any especially stringent or monotonous aspects to the regime?
• Medical facilities: Was a doctor or any other form of healthcare professional present or available; was the interviewee examined or treated in a separate medical facility such as by a family doctor or hospital; were medicines available; who were they provided by?
• Family visits: Did the interviewee have access to family visits; if so, where did these take place; could conversations be overheard; did the family know where the interviewee was?
• Legal representation: Did the interviewee have access to a legal representative; when was access first given, i.e. how long after the interviewee was first taken into custody; how often was it given; where did visits take place; could the conversation be overheard?
• Appearance before a judicial officer: Did the interviewee appear before a magistrate or court; when did this happen, i.e. how long after he or she was first taken into custody?
• Requests: Did the interviewee make any additional requests, if so to whom and what was the result?
• Bribes: Did the interviewee have to pay any bribes for any facilities and was a bribe requested at any time?

It should, however, be remembered that torture and ill-treatment can often take place outside a detention facility and the interviewer should ensure that the interview includes a full account of all the alleged ill-treatment that the victim claims to have suffered, irrespective of where this took place.

Interviewing alleged victims of sexual violence

4.39 Particular sensitivity is called for when questioning alleged victims of sexual violence. Discussion of such subjects is taboo, or extremely sensitive, in many societies and interviewees may find describing these events a particular ordeal. Statements should preferably be taken by someone who is the same sex as the alleged victim -- depending on this person's own wishes -- and rules of confidentiality are even more important. However, the subject should not be avoided and every effort should be made to obtain a detailed and thorough account of what happened so that the perpetrators can be held to account.

4.40 Most people will tend to answer a question on 'sexual assault' as meaning actual rape or sodomy. Investigators should be sensitive to the fact that verbal assaults, disrobing, groping, biting, lewd or humiliating acts, or blows or electric shocks to the genitals are often not taken by the victim as constituting sexual assault. Nevertheless, these acts all violate the individual's intimacy, and should be considered as being part and parcel of sexual assault. Conversely, such acts often accompany physical rape or sodomy and may be regarded as 'clues' that these acts also took place. Very often victims of sexual assault will not say anything, or even deny any sexual assault at first. It is often only on the second or third contact, if earlier contact has been empathic and sensitive to the person's culture and personality, that more of the story will come out. Investigators should, therefore, show particular tact and patience during such questioning.

4.41 In all cases of alleged sexual assault intimate examinations should only be carried out with the full consent of the alleged victim and by suitably qualified medical personnel, preferably of the same sex as the interviewee.

Interviewing children and juveniles

4.42 Children may have been tortured themselves or forced to witness the torture of others, particularly parents or close family members. This can have a particularly traumatic effect on children and particular care must be taken not to re-traumatise the child during the interview. Interviewing children is very different from interviewing adults, and needs to be treated as such. Interviewers should have some experience of working with children -- and some training in how to conduct interviews with children -- or the effects of an interview may be more detrimental than the potential benefits. A child should always be interviewed in the presence of his or her parent, relative or guardian. Particular attention should be paid to non-verbal signals. Children's ability to express themselves verbally depends on their age and stage of development, and their behaviour may reveal more about what happened to them than their words. Children are particularly sensitive to tiredness and should not be pressed during an interview. The child should also be provided with support immediately after the interview has finished.

Interviewing suspects

4.43 Most of the general points about conducting interviews also apply to interviewing those suspected of involvement with acts of torture or ill-treatment. Given that those involved are likely to be state officials -- and often with considerable experience of the criminal justice system themselves -- particular care needs to be taken with planning and structuring the interview and points to be put to the suspect or suspects. A proper investigation should include interviews not only with those suspected of directly inflicting the ill-treatment, but also, potentially, with anyone in a responsible position within the institution in which the detainee was being held who knew that it was being perpetrated and failed to act to prevent it or report it.

4.44 Interviews should be conducted in a clearly independent, impartial and professional manner. Allowance should also be made for the fact that the issues raised may be particularly emotive and that officers being investigated may generate considerable sympathy from their colleagues. Appropriate procedures should be developed to deal with representation, welfare, conflicts of interest, conflicts of loyalty and other factors that may impact upon the investigation.

4.45 Suspects should always be interviewed separately and not allowed to confer with one another between interviews. If necessary they should be suspended from duty to prevent collusion between officers. Care should also be taken to respect the rights of potential suspects and not to render statements taken from them inadmissible as evidence.

Identifying other witnesses

4.46 Witnesses who saw the detainee either before or when he or she was arrested may be able to say what physical state he or she was in prior to arrest, the circumstances leading up to the arrest, the manner in which the arrest was carried out and the identity of the arresting officers.

4.47 Co-detainees who did not directly witness the alleged torture may be able to provide information such as when the detainee was taken away for interrogation and describe his or her condition both prior and subsequent to being taken away, or that he or she never returned. They may be able to give evidence of sounds that they heard, such as screams or shouting, or of bloodstains or torture implements they might have seen. They may be aware of new injuries that became visible after the person arrived in custody or of existing injuries that worsened during the detention. They may be able to provide information about particular patterns of alleged torture -- such as names, places, times, or dates.

4.48 They may also be able to give accounts of their own torture or that of other individuals they might have witnessed which would help to establish that torture occurs in the establishment in question, or that a particular police officer or prison warden has previously engaged in torture or ill-treatment.

4.49 Civilian staff, or other police officers or prison staff at the police station or detention facility may have seen or heard the detainee at various stages during the detention. They may have seen or heard the torture or ill-treatment being carried out, heard it being discussed by other staff or detainees. They may also have been asked to clean up the place where it took place or to collude in covering up evidence about it.

4.50 Where the victim is not the person making the allegation because he or she is dead, 'disappeared', or still in detention, the next-of-kin, neighbours or members of the local community may be able to suggest possible witnesses, or may themselves be able to provide useful information.

Witness protection issues

4.51 Prosecution witnesses, particularly those who are likely to be called to give evidence at court proceedings may find the prospect of testifying stressful and daunting. Witnesses also often suffer intimidation, verbal threats, and/or physical violence from others attempting to dissuade them from testifying in court. Various forms of witness protection have been developed in response to these threats. At the simplest level a prosecution witness may be accompanied to court by someone prepared to sit with them while they wait to give evidence, as this is often the most stressful period for a witness. Other common forms of witness protection include:

• advice on personal security;
• physical security measures at the individual's home such as the fitting of alarms, locks, or bars;
• moving home or to another place of work;
• complete change of identity and relocation;
• ensuring that the individual is not put in a situation where false 'counter allegations' could be made;
• physical protection through the deployment of personal security guards.

4.52 Bearing these points in mind and in so far as it is within their powers, prosecutors and judges should consult witnesses about the different forms of witness protection. Care must, however, be taken to ensure that this cannot be misinterpreted as amounting to an inducement to a witness to testify. Scrupulous financial records should be kept, all policy decisions should be logged and signed agreements may also need to be made with the witness to guard against this.

4.53 Protecting witnesses is of crucial importance before and during a trial of people suspected of carrying out acts of torture or other prohibited forms of ill-treatment. The nature of these crimes means that the evidence of victims and witnesses is likely to be crucial to a successful prosecution. However, victims and witnesses are likely to face particular pressure not to testify, partly due to the effects that the crime in question has had on them and partly because they may be fearful of threats and intimidation. The fact that those accused of acts of torture are often likely to be state officials or law enforcement officers may make victims and witnesses feel particularly vulnerable should they testify.

4.54 In some cases, witnesses or victims may be held in custody, for other offences, in the period before or during the trial in which they will be called to give evidence. This will leave them particularly vulnerable to threats or ill-treatment designed to stop them testifying. In cases where current inmates are at risk, they ought to be transferred to another detention facility where special measures for their security can be taken. In other cases the victims or witnesses may have a criminal record and, therefore, be excluded from certain types of witness protection programmes. It is vital that such witnesses receive adequate protection and special arrangement should be considered, in these circumstances, to safeguard them.

4.55 Trials may commence some time after the original incident, or the conclusion of an investigation, and are sometimes subject to further delays. This can be particularly unnerving for prosecution witnesses. Witnesses should be kept informed of the progress of the case and should feel able to contact a member of the investigation team at any time. If a witness expresses concern for his or her personal safety or is subjected to any threats or intimidation, appropriate action should be taken to protect him or her and to hold the perpetrator to account.

4.56 Where the case involves a death as a result of torture or ill-treatment, and the next-of-kin or family are likely to be called as witnesses, special consideration should be given to the added grief and trauma that they are likely to experience through and beyond the trial. Special consideration should also be given to particularly vulnerable witnesses, such as juveniles, and the particular problems that they may experience attending court to give evidence. Providing video-link evidence, where the facilities exist for this, may help to prevent unnecessary distress to child witnesses and could provide the best environment for securing coherent and full evidence, without prejudice to the right of the accused to a fair trial. Some witnesses may also require special support in preparing them to attend court to give evidence because of their race, sex, sexual orientation, nationality, political or religious belief, or their social, cultural or ethnic background.

4.57 Even if a complaint of torture or ill-treatment is withdrawn during an investigation or prosecution this should not automatically lead to the case being dropped. In some cases victims or witnesses may have been put under pressure or intimidated into withdrawing their evidence. However, as with other crimes, there is nothing to prevent the case continuing on the basis of other evidence.

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4 Conducting investigations and inquiries into acts of torture: section links...
Conducting investigations and inquiries into acts of torture - Responding to allegations of torture - Principles governing investigations - Medical evidence - Conducting interviews - Interviewing alleged torture victims - Interviewing alleged victims of sexual violence - Interviewing children and juveniles - Interviewing suspects - Identifying other witnesses - Witness protection issues
Manual links:	website home page
Table of Contents - Search - Introduction - 1: The Prohibition of Torture in International Law - 2: Safeguards Against Torture - 3: The Role of Judges and Prosecutors - 4: Conducting Investigations and Inquiries - 5: Prosecuting Suspected Torturers and Providing Redress - Appendices