PART III - HOW TO DOCUMENT ALLEGATIONS OF UNLAWFUL
KILLINGS
4. INVESTIGATIVE FRAMEWORK
4.1. Introduction
In this section we create an investigative framework to guide
your approach to an alleged unlawful killing. In any scenario of
documenting an unlawful killing, you should attempt to explore all
the avenues, detailed in this section, as fully as possible.
However, if you are not having any luck with some lines of enquiry,
persevere with the case but note the reasons why you are having
difficulties and aim to obtain as much other information as
possible.
The investigation of the fact, causes and background
circumstances of a death is a complex and multi-layered process.
The death investigator's "Golden Triangle" and "5 Ws" can assist
you to understand it. These clarify the aims of an investigation,
demonstrate the interdependence of all the evidence and the
importance of the context of each piece of evidence. However, as a
documenter of human rights violations, you are not only trying to
document the evidence which fulfils the requirement of the "Golden
Triangle" and answers the "5 Ws", but you are also focussing on the
state's role in the fact, causes and reaction to the death.
The "5 Ws" also provide a quick guide to the questions that
should have been answered by the state in the course of a full,
fair, professional and independent investigation following a
suspicious death. They will, therefore, help you to evaluate the
state's response to a death even if you find that your organisation
is itself having to take steps to establish answers to some of
these questions.
It is crucial not only to document the killing itself but also
the state's activities in responding to the killing (i.e. whether
there was a thorough, competent, prompt and impartial
investigation, an autopsy with public results, whether any agencies
or suspects have been held to account and whether reparations have
been provided to the victims.)
These are equally important aspects of a case when responding to
an unlawful killing using the international system for the
protection of human rights. All the information is needed for the
mechanism to evaluate whether there has been a human rights
violation and the exact nature of it. This is especially the case
where the killing was not the responsibility of the state, but the
state responded (or failed to respond) to a death in a way that did
not meet international human rights standards. The specific context
of the case you are dealing with will dictate how you approach the
evidence gathering process and how easy it is for you to obtain all
the relevant information. For example, if you have access to the
body you will be able to obtain evidence from it, if there is a
public inquiry you will be able to attend. This section goes on to
provide more detail about how to approach establishing the facts,
causes and background circumstances of a killing.
|
 TIP - Approaches to death
investigations:
Goals of death investigation:
" 5 Ws"
Who - is the deceased?
When - was the time of death?
Where - was the place of death?
Why - the cause of death
hoW? - the manner of death
Investigation process:
"The Golden Triangle"
Each of these three elements is equally important
in a death investigation. A failure in one area will likely lead to
a failure in the investigation and each element needs to be
examined in the context of the others.
|
4.2. Basic facts about the killing
4.2.1. Who - is there a dead body and what is its identity?
You should aim to document the true identity of the victim(s)
and any evidence of death. This may seem obvious but here are some
examples of situations where establishing such facts can be
difficult or impossible:
- You may be dealing with a case of multiple killings in a
context where numerous people are reported missing, and there is
neither evidence of their bodies, nor evidence of all the identity
of all those missing.
- You may be dealing with a case of a death in custody where you
may be clear about the identity of the victim but the body is in
the hands of the state, so you may not have proof of death.
- You may have evidence of a death, e.g. a photograph of a
decomposed body or a witness to a killing, but be unable to
establish its identity.
However in any event you should aim to document as many of the
following as you can. Establishing some of the facts may help you
to get answers to others:
- Full name, aliases, nicknames (and father's name - relevant to
some cultures). This should include any alternative spelling of the
name if it is originally written in a different script
- Gender (this may not be clear from the name alone)
- Date of birth/age
- Nationality
- Identity card number
- Occupation and/or activity (e.g. human rights, political
etc.)
- Usual address
- Description of appearance - height, weight, left or right
handedness, complexion, hair and eye colour, any unusual
characteristics (scars, birthmarks, tattoos), state of nutrition,
dental care, cleanliness
- Description of clothing, jewellery, personal effects
- A photograph - of the victim alive or indeed dead (these might
help experts to interpret the injuries which may have caused the
death)
- Some indication of the victim's state of health before being
arrested or detained - medical records, witness accounts etc.
|
TIP - Death threats / Refoulement
You may be dealing with a death threat in which case the person
may be in hiding, and/or using an alias. Remember if you are
dealing with such a case urgent actions cannot normally be
taken without a name.
|
4.2.1.1. Sources of evidence:
Establishing the identity of a body may not be straightforward
but there are procedures for establishing the identification (or
correct attribution of a birth/legal name to human remains) which
are well-established and universal in their application and
governed by the international rules.
The expertise falls within the medical speciality of "forensic
pathology" but other skilled professionals are also involved such
as police, dentists, anthropologists and biologists. In addition,
circumstantial evidence is crucial, e.g. witnesses to deaths and
burials. Experts aim to establish "initial indicators" of identity
through recognition of the body, recognition of clothes, documents
and then, this information is cross-checked, using any information
about the missing person, e.g. age, height, sex, with the physical
knowledge of the corpse.
To establish the identity of the victim(s) and the fact of death
there are the following potential sources of evidence:
- Death certificates - should give details of identity as well as
proving the fact of death
- Autopsy reports
- Witness statements - visual identification by a close family
member or person known to the deceased (ideally two visual
identifications), statement by an examining physician who had
access to the victim, eye witnesses to the killing, religious
personnel allowed access to the body
- Photographs of the body
- Clothing and personal effects - may be hand-made or repaired by
a living witness, or they may be worn in such a combination that it
is highly unlikely to come across them in the same combination
twice
- Property found on the body: photographs, identity cards,
passports. Such items may be misleading. Do not automatically
assume that such items belong to the corpse or that they reflect
his/her true identity until they have been cross-checked with other
facts about the missing person
- DNA testing
- X ray records and body uniqueness (e.g. curved spine, evidence
of previous injury)
- Dental records (where they exist and are still available)
- Fingerprints (where they exist and are still available)
- Registration plate on a car
|
TIP
If you cannot obtain crucial documentation or reports, e.g. a
death certificate, but you know they exist or should exist, then
remember to tell the human rights mechanism. They will be able to
ask for the documentation from the state and stand a better chance
of obtaining it. It is, therefore, important to familiarise
yourself with the law, regulations and procedures governing what
should happen following a suspicious or reported death, so you know
what steps the state should take and what documents should be
available in the case you are dealing with.
|
4.2.2. When, where - the scene of the killing?
You should aim to provide the date, place and time of death as
accurately as possible.
The time and place of death should have been established in the
course of a post-death inquiry or investigation, e.g. at the
autopsy. If these are difficult to establish then you know that the
state is falling short of its duty to investigate the case
effectively.
Killings can take place in any location, especially in countries
where there is a widespread climate of violence. High-risk
locations are those where demonstrations take place, where people
are arrested (their homes, or the homes of loved ones), places of
detention, places where people have gathered to escape violence,
e.g. churches. While the majority of such places will be familiar
to those in the local area, it is fairly common for unacknowledged
places of detention to exist also, or for mistreatment to occur
during transportation to an official place of detention. You may be
able to obtain evidence of the existence and location of such
places from other detainees.
The location of the death should be identified as closely as
possible by description, maps and sketch plans. You may need to
establish the general location, (e.g. an address) as well as the
specific location (e.g. the position of a body in a particular room
in the address). It is usually extremely helpful to your
understanding of a case to visit the location of the killing if it
is safe to do so and will not disturb evidence, and then to
establish the general and specific locations with:
- The grid reference
- The exact address
- A map of the area
- A sketch map of the location where the body was found (and
possibly also of the building and room, if indoors)
The time of death can be extremely difficult or extremely simple
to establish. This will depend on an enormous variety of factors:
the number of witnesses, the general context (e.g. discovery of a
mass grave), the amount of time which has elapsed since the death,
the location of the corpse since the death (e.g. buried or not?),
the state and amount of biological material which remains, and
whether or not the state grants access to the corpse of the
deceased. Like establishing identity, there are numerous scientific
ways of establishing the length of time which has elapsed since a
death and you would need a qualified forensic examiner to undertake
such a study. Clearly forensic examiners can only do this work if
they have access to the body. If you find yourself in a situation
where you need this kind of help you should obtain assistance from
a more experienced lawyer, NGO, independent investigative authority
or international organisation who is working in the area.
4.2.2.1. Sources of evidence:
- Death certificate
- Inquiry or autopsy report
- Testimonial evidence from: eye witnesses; people who live in
the area or know the location well; people who know the victim or
had knowledge of the victim in the period prior to the killing;
informants who may be responsible and/or know those responsible for
the killing; if a death in custody, former or fellow detainees
- Site visit
- Photographic, video, closed-circuit televisual evidence
- Court records
- Media reports and photographs (times of broadcasts?)
- Custody and prison records, (records of admission and release
in police stations and prisons - inconsistencies and gaps in such
records are often a sign of an irregular practice)
- Police records of the operation, notebooks, internal
investigation procedures
- Military records of operation
4.2.3. Why and how - cause and manner of death?
There are innumerable ways in which a person's life can be ended
(causes) but it is necessary to identify the specific cause by
retracing the origins of the death until no further questions can
be asked. For example, a death was caused by a haemorrhage, which
occurred because of an entrance wound, which was caused by a
gunshot. So you are aiming to identify the illness or injury which
initiated the train of events which led to the death.
The manner is determined by the type of condition which has
resulted in the death and the circumstances which led to that
condition. These may be natural - the result of disease, or
unnatural - in that it was caused by an external condition causing
injury or poisoning (accidental, homicide or suicide). The manner
of death cannot always be determined and will be classified as
"undetermined". Generally, if the manner of death involves any
external condition it should be referred to a coroner or medical
examiner performing the same function. The cause and manner of
death should, therefore, be evident on the death certificate and
any autopsy report. The degree of difficulty which you have
establishing the cause and manner of death will illustrate whether
the state is meeting its obligations to adequately and
appropriately investigate the death. However, as we are focusing on
deaths which take place during law enforcement and military
operations, including those in custody, such deaths are largely
likely to be homicides or possibly, in the case of deaths in
custody, suicides.
Clearly in documenting the cause and manner of death you will be
going some way towards exploring the circumstances which led to the
death and, therefore, the nature of the state's involvement in the
death. Depending on the circumstances of the death, you may obtain
a lot of detail about the state's direct or indirect
responsibility.
4.2.3.1. Sources of evidence for establishing cause and manner
of death:
- Autopsy report
- Death certificate and/or coroner's report - should provide the
definitive answer
- Statements of medical staff, or medical records of the
individual before they died
- Witnesses statements: eye witnesses or people who arrived on
the scene soon afterwards
- Items found or scene at the scene, e.g. spent cartridges,
knives, syringes, drugs, ropes or a noose, blood stains
- Toxicology reports (on levels of drug, poison, alcohol)
- Police records of operation, notebooks, documents from internal
investigation procedures
- Custody records (records of admission and release in police
stations and prisons - inconsistencies and gaps in such records are
often a sign of an irregular practice)
- Military records of operation
4.3. History & circumstances of the killing
You should aim to establish a full and detailed chronological
history of the individual victim and of the circumstances
surrounding their death.
Exploring the history and circumstances of the killing may
assist in establishing some of the answers to the "5 Ws" and
conversely, answering the "5 Ws" may have provided a lot of
information about the history and circumstances of the killing.
Such a wide-ranging survey of the surrounding facts may also
lead you to establish who or, at least, which type or group of
suspects have responsibility for the death. If this happens you
should seriously consider obtaining advice from a more experienced
NGO or an international organisation present in you area. Depending
on the circumstances, you may wish to bring this to the attention
of the prosecuting authorities in your country in order for them to
take steps towards initiating a criminal prosecution.
Remember, all information gathered about the deceased person and
the circumstances may be useful, do not discount any of it and keep
of all records of it.
|
 INFORMATION BOX -
Forensic testing
Forensic testing can reveal an enormous amount about a case. It
should be carried out only by experienced and professional
specialists. Such tests may, of course, be carried out by the state
in the course of a police investigation or autopsy, so you may have
access to reports. However, the state may not have the resources or
personnel to carry out many of these tests. If your organisation
feels there is a need to carry out one of these tests in order to
establish a crucial point in the case, then we advise you to
contact an experienced or specialist NGO or an IGO to ask for
assistance (see Appendix I
). Here we provide you with a
summary of the main types of forensic test that can be carried
out:
- Ballistics - determination of whether a bullet recovered at the
scene, or from the victim, was fired from a particular gun or type
of gun, e.g. one thought to be a murder weapon
- Blood - analysis can determine and compare blood types
- DNA - comparison of the DNA structure of body parts/fluids
- Engineers - examination of vehicles and tyre marks on roads to
explain how a road traffic accident came about
- Fibre analysis - establishes the origins of fibres and compares
different fibres
- Forensic anthropology - examination of skeletal remains to draw
conclusions about height, age and sex etc.
- Forensic entomology - examination of insect life on a corpse to
establish the time elapsed since death
- Forensic odontology - analysis and comparison of bite marks and
teeth
- Forensic pathology - examination of all systems of the body to
establish cause of death
- Handwriting analysis - comparison of handwriting and
identification of whether the authors are the same
- Latent fingerprints - lifting and preservation of prints from
physical evidence recovered and comparing with a suspect or a
victim (for identification)
- Speech analysis - comparison of the acoustic properties of
recorded speech with real speech
- Tyre tracks and shoe comparison - comparison of the marks left
by tyres and shoes with the actual imprint
- Typewriter analysis - analysis of 2 samples of typewriting to
see if they are the same
|
4.3.1. What you need to know about the deceased
Knowing a full picture of the deceased will assist you to
establish the motivation of the killer and could provide clues
about how, when and where they were killed:
- Job and occupational history
- Affiliations (political, human rights, criminal)
- Family background and history (draw a family tree detailing
names and ages of relatives)
- Friends and associates (how long known to the deceased, nature
of relationship)
- Places frequented (homes of relatives or friends, bars, shops,
clubs, medical advice)
- Habits and routines
- Any known and recorded death threats made against the person,
if so, when? how? to whom made? whether recorded? and how the state
responded?
- Personal issues: drug or alcohol habits, debt, criminal
convictions, any known "enemies", whether these were known to carry
any kind of weapon?
4.3.1.1. Sources of evidence:
- Autopsy report
- Witnesses to the death and the events leading to the death
- Family, friends, associates, colleagues of the deceased
- Religious or community leaders
- Medical records of the victim (whilst free and in custody)
- Police records, notebooks and documents from internal
investigations
- Diary of deceased (work and personal)
- Property in the home, e.g. bank statements, personal letters,
drug paraphernalia, weapons/arms, political material
- Tapes of telephone calls and answer phone or voicemail
messages
- Records of attendance at a place of employment or
education
- Community support groups, e.g. youth groups
4.3.2. The scene and the suspect(s)
There is an enormous amount of information that can be
established about the scene of a killing and additionally, an
enormous variety of sources of evidence. Using all the evidence
that you gather, you should aim to document a chronological and
consistent account of the death, which is as detailed as possible.
You may also find that there are scenes other than the scene of
death, which it is useful to visit and investigate in order to
obtain a fuller history of the killing, such as, the victim's home,
work-place or vehicle, the hospital where the victim was taken,
news agencies, churches, abandoned vehicles. You should try to fill
any gaps and, if you cannot, you should explain why, (e.g. because
the authorities wouldn't tell which officers were on duty). The
kinds of questions which need to be established about the scene are
as follows:
- Who killed/apprehended the victim? - ideally the number of
people? Identities and/or decriptions (age, height, clothing, hair
colour)
- Were they part of a state or non-state agency? Be as specific
as possible. Who were they answerable to, or who was controlling
them?
- Which law enforcement, security force, military, or
paramilitary unit did they belong to? and their name, rank and
unit. (If not known then the following details can help with their
identification)
- How were they dressed? - uniform or plain clothes? Give
description
- What did they look like? - give a full description, did they
have any unusual characteristics?
- What weapons did they carry? - some weapons may be fairly
specific to a force
- What vehicles were used? - marked or unmarked. Was the number
plate or registration noted?
- Was there a riot or disturbance? How many people were there?
What kind of persons were they? How many state officials? Who were
they? What were they wearing? Were they armed and, if so, what
with?
- Was any form of restraint or crowd control used? What type and
how was it used? Was there any warning?
- Were any others present who would have seen the general or
specific incident? - if no detail is known, when and where was the
last time the victim was seen and in whose company?
- Was s/he arrested? Was any reason given for the arrest? Even if
no official reason was given, a reason may be suggested by the kind
of questions asked, or the circumstances of the arrest
- Was the victim armed, if so with what?
- Was the person taken into custody? Where was the person taken
into custody? - home, street, place of worship, outside a military
base
- Was there an attack on a group of people? Where were they? Why
were they in a crowd? Had anyone asked them, or forced them, to
gather together? What weapon(s) were used? Any evidence of who used
it?
- What happened at the scene after the attack? Did the killers
disappear? Did they take the body(ies)? Was the area roped off? Did
anyone tamper with evidence?
- What happened to the bodies? Were they abandoned, if so, where
were they found, by whom, how long after death? Was some attempt
made to hide them, e.g. by burial or burning?
(Note - The method of control, arrest, abduction or taking into
custody, and subsequent treatment, may itself be characteristic of
a particular group operating in your area, which might have been
established by previous submissions to the international bodies,
and helps to establish the identity of the perpetrators.)
You do not necessarily have to identify the individual
perpetrators, (though you should if you can) as long as you can
establish that they had a connection with the state.
|
TIP
If you think the evidence you are gathering may lead to a
criminal prosecution then you should consider obtaining further
advice from a more experienced NGO, or an IGO, and/or reporting the
matter to the prosecuting authorities. In such cases the evidence
gathering process becomes crucial because the standard of proof for
a successful prosecution is very high. Anything that could be
interpreted as having affected or interfered with the evidence
could undermine the prosecution's case. Although it is equally
important to be sensitive when investigating and handling evidence
in a human rights case, the standard of proof is not as stringent
because no individual is at risk of being punished.
|
4.3.2.1. Sources of evidence:
- Witness evidence: eye witnesses; people who live in the area or
know the location well; people who know the victim, or had
knowledge of the victim in the period prior to the killing;
informants who may be responsible and/or know those involved in the
activities which resulted in the killing; if a death in custody,
former or fellow detainees
- Photographic, video, closed-circuit television evidence
(CCTV)
- Custody and prison records, notebooks (including notes of
admission and release)
- Police records of the operation, notebooks, internal
investigation procedures, records of ammunition use or records of
use of force
- Maps and sketch maps (obtained through site visits)
- Physical evidence - anything of any importance found at the
scene (ropes, spent cartridges, clothing, knives, documents)
- Forensic testing of physical evidence - (of any object which
can provide information about the event e.g. weapons, area where
attack took place)
- Fingerprint analysis
- Primer residue testing - test to examine for traces of material
deposited on a person after the firing of a gun
- DNA testing
- Media reports
- Court records where hearings have taken place, which may
include statements of any suspects, or others closely linked with
the operation that resulted in the death
4.3.3. The general context
Allegations may be received in a wide range of contexts and
places. It is also useful for the human rights mechanisms to be
given some background material about the general context in which
the suspected violation occurred so that they have an overall
impression of the prevailing political, social, economic and legal
climate in countries where violations are taking place. You should
aim to provide details about the prevailing political climate, its
historical basis, whether there is a generalised atmosphere of
repression (e.g. is there press censorship, freedom of religion
etc.? is there corruption in public and private institutions? are
governmental institutions accountable and transparent?).
You should aim to provide the main characteristics of the
general contexts including:
- Situations of political unrest or generalised repression of
human rights
- Conflict zones (you should be aware that violations in such
areas are likely to be perpetrated by both parties to the conflict,
whether governmental or not, and it is important to keep accurate
records of the alleged perpetrators in each case, or of any
characteristics which may help to identify them. Also, remember
that during conflicts fear and intimidation is likely to be a great
disincentive to civilians, who can be subject to persecution by
both parties, to discourage them from offering support and
assistance to the opposite party
4.3.4. Death in custody and non-custodial residential
settings
Such deaths require a specific approach by the human rights
documenter. It is clear that it may well be more difficult to
obtain details about the scene of the offence and, indeed, the
cause and manner of death. Given that the deceased was in the
custody of the state at the time death occurred then the state has
a clear duty to account for and investigate any death. It should
establish the "5 Ws" and take any necessary action to deal with
institutional failures and/or individual acts or omissions that
contributed to the death. However, this also means that the
victim's family and the human rights activist is greatly dependent
on any information provided by the state.
It may well be possible for the state to identify a suspected
killer or a range of suspects quite easily, for example, by
checking who was on duty at the time of death but the authorities
may be extremely reluctant to give out such information. This
section aims to give some guidance on the specifics of these types
of cases.
| Checklist - THE DEATH SCENE - Guidance for interviewing a
witness Witness Details
- Details of witness supplying information (name, address, date
of birth, occupation)
- Date of interview with witness
- Date and time of witness's observations of scene
- Time of their arrival at scene
- Reason for their arrival at the scene
Questions for witness:
1. Location
Describe:
- The path taken to and from the scene
- Weather and light conditions
- Location of scene (describe as exactly as possible - use grid
references if possible, consider sketch map and photographs)
- The scene itself (was it a street, a square, a transport point,
an open space, what were the surrounding buildings, was it a
residential or commercial area? etc.)
If inside a building:
- Type of building
- Layout and description of rooms in the building
- Entrance and exit points including windows - were they open?
locked? damaged?
- Furniture and décor - location? disarray? damage?
missing?
- Temperature and lighting?
- Mail and newspapers?
- State of food and drink left at scene?
2. People
Describe:
- ALL people present including the deceased (names; organisation
- police, military, ambulance, fire personnel; clothing including
description of uniform; all other identifying feature, e.g. sex,
approximate age, height, appearance) - Give them "names" for ease
of reference, e.g. Police X, Police Y, Victim A, Victim B etc.
- Locations and movements of all persons at the scene including
the deceased (use sketch map)
- Actions of all persons at the scene, including the
deceased:
- What did they do?
- What did they say? Which language?
- What was their demeanour and how did you know?
- Were they armed? Describe the weapons.
- Did they use their weapons? When and how?
After the apparent death:
- Did they touch anything?
- Did they move anything?
- Did they change anything?
- Did any other people arrive at the scene during or after the
incident? - describe them, their locations, movements and
actions?
- Was the scene barricaded off or protected? If so, when and
how?
3. Vehicles
- Describe ALL vehicles at scene: identify them as exactly as
possible (was there a registration plate, what were the numbers,
colour, make and model of vehicle?)
- Describe who and what was in the vehicle
- Describe their location - moving or parked? (use sketch
map)
- Describe their movements including which directions they
arrived from and left in
4. Other
Description and location of:
- Marks on surfaces e.g. footprints, tyre marks, drag marks,
blood - liquid/smears/spatters/spots? other body fluids?
- Evidence of use of weapons, e.g. empty cartridges, abandoned
weapons or items which could have been used as weapons, e.g. ropes,
razor blades (location and orientation)
- Other objects, e.g. broken glass, cigarettes and butts,
bottles/glasses of alcohol, evidence of drug use - syringes,
plastic bags, containers of medicines or illegal drugs
- Any distinctive odours, e.g. petrol, gas, perfume?
- Any other information which could possibly be relevant
|
4.3.4.1. Types of institution
In this section we give some detail about the types of
institution where deaths can occur and some guidance as to the
types of questions you may wish to explore when investigating a
death which has taken place in such an institution.
- Police station lock-ups. When people are being held in
custody before, they have been charged, they are usually held in a
cell in a police station, or some other kind of lock-up, which is
supervised by the police rather than the prison authorities. They
may well be interrogated during this period by the officers who are
investigating the matter for which they have been arrested.
Following arrest, it is possible that prisoners could be
intoxicated from drugs or alcohol, have mental or physical health
problems, or any combination of these. They may have been detained
by the use of force and may be injured. In addition, they may be at
risk of torture and ill-treatment during the interrogation which
could exacerbate medical conditions or cause injuries possibly
resulting in death. The conditions and supervision of their
detention at this time is absolutely crucial to ensure there is no
harm inflicted upon them by police officers or other detainees and
that they are protected from foreseeable self-harm or death from
causes associated with a medical condition, or their alcohol or
drug induced state. Certain groups may be particularly vulnerable
to ill-treatment or lack of treatment whilst being held in police
stations: members of minority groups, young prisoners, or those who
are mentally ill.
- Institutions of long-term detention would include
prisons (holding both remand, i.e. awaiting or under trial, and
convicted prisoners), other places where prisoners awaiting trial
are kept, sometimes for a very long time, and juvenile detention
centres. In such institutions, if you are focusing on treatment
inside the institution, you are unlikely to be concerned with
questions of arrest or abduction. Instead, you will need to ask
more searching questions about the conditions of imprisonment, the
prison regime, relations with the warders and individual incidents
of ill-treatment. You should also be open to the possibility of
group ill-treatment, harassment and bullying, e.g. on the grounds
of race or sexuality, or excessive use of force or brutality in
response to disciplinary problems such as riots. You should also
consider the steps taken by the authorities to prevent bullying and
violence between detainees (which may even have been encouraged by
the prison authorities, e.g. by requiring bully and bullied to
share a cell or using certain detainees to "police" others) or to
deal with situations like mass uprisings of prisoners. In addition,
the state may have failed to take appropriate steps to obtain
medical or psychiatric assistance for detainees or to monitor a
detainee who was clearly a suicide risk (or left such a person in
possession of the means to commit suicide).
- Non-punitive custodial settings, such as children or old
people's homes, or psychiatric institutions. Again your focus may
need to be on the general environment and conditions, relations
with the supervisory staff, and any individual incidents of
ill-treatment. In such contexts, ill-treatment may often take the
shape of physical or sexual abuse and may include psychological
abuse. A practice common to many children's and psychiatric
institutions, which gives rise to controversy is the use of
restraints on residents. Lack of medical care, lack of nutritional
food and bullying between residents may also be issues, which the
state has caused or is failing to prevent. (NB - Remember that it
is best for children to be interviewed by someone with at least
some experience of working with children - see
Section
3.2.3.12 above).
- In places of detention for foreigners, the issue may be
ill-treatment of the foreigners by the local police or other
authorities (which should generally be approached in a similar way
to other forms of short-term custody), but it is most likely to
concern the process for the deportation of persons to countries
where they are believed to be at risk of an arbitrary execution. In
such cases, you will need to go through each stage of the
deportation process in detail, and obtain copies of the relevant
decisions. You will also need to interview the person about their
reasons for fearing that they will be killed in order to establish
a strong basis for not deporting them. You will need to ask about
any previous threats or torture undergone by the interviewee or
close relatives, and any other reasons to fear that there is a risk
to the person. Remember that you should focus on current not prior
risk.
When collecting allegations in camps for refugees and
internally displaced persons, be aware that you may receive
allegations about abuses which occurred prior to arriving in the
camp, and which have occurred inside the camp. It is very important
to keep very accurate records of the perpetrators of alleged
incidents and to be very thorough in seeking to identify them. This
applies equally to allegations made in connection with conflict
zones generally.
4.3.4.2. Circumstances and location of detention
The history or context of the detention will inform the cause of
death and whether it is possible to establish that there has been a
human rights violation.
- Incommunicado detention (i.e. detaining somebody either without
acknowledgement or without allowing them access to anyone, such as
their lawyer or family) is probably the single highest risk factor
for torture and killing in custody because it means that there is
no external monitoring of the interrogation or detention process.
Sometimes, the security forces only officially register the
detainee once they have completed the initial interrogation.
- Abductions. In temporary abductions the victim is released
several hours or days later. In the case of a 'disappearance',
evidence indicates that the victim is held by, or with, the
acquiescence of the authorities, yet this is not acknowledged by
the authorities. The victim may not be found, or may be found dead.
Both forms of abduction may involve killings as a means of
instilling fear or intimidation in the community. Cases of
disappearance involve violations other than the right to life (i.e.
right to be free from torture, right to liberty and security of
person) and the disappearance could also, itself, be found to
amount to torture for the relatives of the victim.
- For secret or inaccessible places of detention, the combined
testimonies of different individuals may establish that the place
actually exists, and may help to identify it. It may even enable
you to construct a map of the layout of the establishment. You
should therefore record as much detail as possible.
4.3.4.3. Conditions of detention
Obtain as much detail as possible about the place in which the
deceased was held, particularly the cell or place where they slept
and any other rooms where they were taken, including for any
interrogation. (Witnesses may themselves have been blindfolded - if
this is the case, you should ask them for descriptions using senses
other than sight - what did they hear, smell or touch?)
Below is the sort of information you need to document about
conditions:
- What information was gathered and recorded about a detainee?
Their age, medical conditions, mental state, level of intoxication
or aggression towards others?
- The level of supervision: were they checked periodically, e.g.
every 15 minutes, one hour, or not at all? Did the authorities
ensure they were deprived of the means of self-harming or
committing suicide? Did the authorities ensure they were in a cell
where there was little risk of them attacking others or being
attacked by others?
- Medical facilities: Was a doctor or any other form of
healthcare professional present or available? Could any of the
prisoners be examined or treated in a separate medical facility
such as by a family doctor or hospital? Were medicines available?
Who were they provided by?
- Others held in the room: Were any other people held there? If
so, how many? Are any of them possible witnesses? Would they have
noticed anything about the state of health of the victim? What
state of health were the other people in?
- The allocated room or cell: How long was the person held in
there? What size was it? What were the walls, floor, ceiling, door
made of? What shape was it? Was there anything unusual about
it?
- Isolation: If the victim was in isolation, for how long and in
what manner were they isolated?
- Content of the room: What was in the room - bedding, furniture,
toilet, sink, etc.?
- 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 they go to the toilet or bathe? What was the general
hygiene of the place like? Was it infested in any way?
- Clothes: What clothes did they wear and could they be washed or
changed?
- 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? If so,
for how long and how often?
- Regime: Were there any especially stringent or monotonous
aspects to the regime?
- Family visits: Was there access to family visits? If so, where
did these take place? Could conversations be overheard? Did the
family know where the person was?
- Legal representation: Was there access to a legal
representative? When was access first given, i.e. how long after
the victim 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 victim appear
before a magistrate or court? When did this happen, i.e. how long
after the victim was first taken into custody?
- Bribes: Did any bribe have to be paid for any of these
facilities?
4.3.4.4. Sources of evidence:
- Witnesses - family members, lawyers, religious personnel &
doctors who had visited the deceased, other prisoners/detainees,
police and prison officers or other employees at the
institution
- Records of admission and release in police stations and prisons
(inconsistencies and gaps in such records are often a sign of an
irregular practice)
- Custody records (all records made during the period when the
person was in the institution)
- Medical records of the victim
- Court files
- Prosecution files
- Video or tape footage of custody areas
- Previous government or non-governmental reports on an
institution or investigations into previous deaths
- Newspaper and media reports
4.4. The state's response
You need to provide an overview of what the state has done to
regulate and respond to a report of a suspicious death or to a
death threat. As the state is obliged to establish procedures which
prevent unlawful deaths occurring, it is important to document
whether those procedures exist and how they have been implemented
in this particular case. Of particular importance is the duty upon
the state to investigate an unlawful killing. This will involve
obtaining some familiarity with the regulatory and legislative
framework that applies to the work you are doing.
In cases where killings seem to be the responsibility of a
private individual or non-state individual agency, it is
particularly crucial to understand how the state has regulated
their behaviour and what action it has taken following the death.
This may be the only way of establishing that the state has some
responsibility for the killing in human rights law.
You should aim to provide details (and ideally copies) of the
law, procedures and regulations governing the following:
- Rules relating to procedures following a report of a suspicious
death and deaths in custody (e.g. obligations to report to coroner,
procedure for autopsies and inquests)
- The operation or situation in which the killing occurred (e.g.
national police codes of conducts on use of force and firearms,
custody rules, rules of engagement, prison rules, regulations for
alternative care institutions)
- Complaints and internal disciplinary procedures of the relevant
state agencies
- Laws, codes and statutes which allow for the criminal
prosecution of unlawful killings
- Laws codes and statutes which allow for an individual or an
agency to be sued for damages if they are responsible for a
death
- Constitutional protections of the right to life and details of
other human rights provisions or institutions (e.g. national human
rights commissions or ombudsperson)
- Compensation provisions for victims of crimes or abuses of
state power
- Amnesties, pardons, truth commissions or other inquiry
mechanisms for those responsible for state killings
These documents should go some way towards enabling the human
rights system to analyse whether the state has met some of its
international obligations to regulate and prevent activity, which
can lead to lethal force being used by the state or by private
individuals or agencies. If your organisation has the time and
resources you may find it helpful to establish a permanent library
of such information. A useful and time-saving exercise would be to
undertake an analysis of the regulatory framework and how it is
implemented and to evaluate whether this is in line with the
international human rights standards detailed in Appendix
IV. Such an analysis could, itself, be provided to human rights
reporting procedures to demonstrate a generalised pattern of
violations through the failure to properly implement human rights
obligations. Your analysis could then be used to support individual
cases without having to repeat the same exercise. In each case you
subsequently deal with, it will then be easier to establish whether
it is the regulations themselves that fall short of international
standards, or just the way they have been implemented or complied
with.
However, you should also try to evaluate and document how the
regulations have been applied in the circumstances of the
particular case, unless you are dealing with a state where the
regulatory system is so weak that it is not functioning. If this is
the case, then explain that it is, and provide some examples of how
it is not working, e.g. there are no facilities to preserve bodies
and an insufficient number of doctors and facilities for autopsies
to be routinely carried out.
You will need to know whether:
- the state has been notified of the death. If so, when, how, by
whom? Is there any official record of this?
- steps were taken to make an inquiry into the death (to
establish the "5 Ws"). What was done? Who by? When was it
done?
- an autopsy was carried out. If so, who was notified of the
results and where is the report?
- a police investigation was set up to recover evidence, and
identify possible witnesses in order to identify and apprehend
those involved with the killing?
- all the relevant expertise was available and used. If not, why
not?
- steps were taken to bring any perpetrator before a court, or
military or disciplinary tribunal. How long did the procedures
take? What was the outcome? If not, what reasons were given for
failing to do so?
- the victim's relatives were compensated for the loss. Did they
receive an apology or any other form of reparation?
- if there were special circumstances (e.g. a death for which the
LEOs or prison officers were clearly responsible), a special
impartial investigation was set up
- there were internal investigations by the agencies responsible
for the death. If so, what did they conclude? Were changes to
policy and practice implemented as a result? If so, how? And if
not, why not?
- there was a public inquiry into the situation which resulted in
the killing. Was it acted upon by the government? If so, how? And
if not, why not?
- there was a finding of a human rights violation by a national
court. If so, did the state act upon it and change its systems? If
so, how? And if not, why not?
- there was an investigation by an ombudsman. If so, what
happened as a result?
Where the killing resulted from a generalised failure of the
state to bring about law and order in a community, e.g. where there
are many firearms in the hands of private citizens, or where there
are communities which are dominated by gangs, you need to analyse
what steps have been taken to draw the state authorities. attention
to the situation and what steps they have taken to enforce the law.
You will need to show that the state has failed to act in order to
demonstrate that there is a human rights violation, e.g. a failure
to investigate the killing effectively, a failure to prosecute the
perpetrator, etc.
4.4.1. Sources of evidence
4.4.1.1. General legislation and regulations:
- Public or university libraries
- Court libraries
- Offices of individual lawyers
- NGOs
- IGO offices
- Media or journalists
- "Insiders", e.g. friendly police or military who will let you
have copies
- Internet research
4.4.1.2. Documentation on the state's response in the
individual case:
- Police records (receipts of reports made, name of officer
responsible for the case, statements taken, police investigation
file)
- Court papers and records (copies of court documents about the
case)
- Letters from the police, court, government departments (to
victims and witnesses)
- Witnesses: statements from victims of death threats, witnesses,
relatives and friends of victims
- Autopsy reports
- Media reports about court cases, inquiries (investigative
journalists may also have background information)
- Other NGOs who may be working on similar cases
