Page 101 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

ISTANBUL PROTOCOL III. LEGAL INVESTIGATION OF TORTURE OR ILL-TREATMENT

(b) Competence. Commission members must be from violence, threats of violence or any other form
capable of evaluating and weighing evidence and of intimidation (see paras. 204–207 above). If the
exercising sound judgment. If possible, commissions commission concludes that there is a reasonable fear
of inquiry should include individuals with expertise in of persecution, harassment or harm to any witness
law, medicine and other appropriate specialized fields; or prospective witness, the commission may find it
advisable to hear the evidence in camera, keep the
(c) Independence. Members of the commission should identity of an informant or witness confidential,
have a reputation in their community for honesty use only evidence that will not risk identifying the
and fairness; witness and take other appropriate measures.

(d) Representation. The composition of the commission 6. Proceedings
should be such as to ensure adequate representation
of gender and persons with characteristics and 245. It follows from general principles of criminal procedure
experiences relevant in the specific context. that hearings should be conducted in public, unless in
camera proceedings are necessary to protect the safety
242. The objectivity of the investigation and the and/or privacy of a witness. In camera proceedings
commission’s findings may, among other things, should be recorded and the sealed, unpublished record
depend on whether it has three or more members kept in a known location. Occasionally, complete
rather than one or two. A single commissioner secrecy may be required to encourage testimony
should in general not conduct investigations and the commission may want to hear witnesses
into torture or ill-treatment. A single, isolated privately, informally or without recording testimony.
commissioner will generally be limited in the depth
of the investigation that the commissioner can 7. Notice of inquiry
conduct alone. In addition, a single commissioner
will have to make controversial and important 246. Wide notice of the establishment of a commission
decisions without debate and will be particularly and the subject of the inquiry should be given. The
vulnerable to State and other outside pressure. notice should include an invitation to submit relevant
information and written statements to the commission
4. Commission’s staff and instructions to persons willing to testify.
Notice can be disseminated through newspapers,
243. Commissions of inquiry should have impartial, magazines, radio, television, leaflets and posters.
expert counsel. Where the commission is investigating
allegations of State misconduct, it would be advisable 8. Receipt of evidence
to appoint counsel outside the ministry of justice.
The chief counsel to the commission should be 247. Commissions of inquiry should have the power
insulated from political influence, through civil to compel testimony and produce documents, as
service tenure or as a wholly independent member of well as the authority to compel testimony from
the bar. The investigation will often require expert officials allegedly involved in torture or ill-treatment.
advisers. Technical expertise should be available to Practically, this authority may involve the power to
the commission in areas such as pathology, forensic impose fines or sentences if government officials or
science, psychiatry, psychology, gynaecology and other individuals refuse to comply. Commissions
paediatrics. To conduct a completely impartial of inquiry should invite persons to testify or submit
and thorough investigation, the commission written statements as a first step in gathering evidence.
would almost always need its own investigators Written statements may become an important source
to pursue leads and develop evidence. The of evidence if their authors are afraid to testify, cannot
credibility of an inquiry would thus be significantly travel to proceedings or are otherwise unavailable.
enhanced to the extent that the commission Commissions of inquiry should review other
would be able to rely on its own investigators. proceedings that could provide relevant information.

5. Protection of witnesses 9. Rights of parties

244. The State shall protect complainants, witnesses, 248. Those alleging that they have been tortured (or
those conducting the investigation and their families suffered ill-treatment) and their legal representatives

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