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

should be informed of and have access to any hearing opinion. Commission of inquiry reports should
and all information relevant to the investigation and contain, at a minimum, the following information:
must be entitled to present evidence. This particular
emphasis on the role of the alleged victims as parties (a) The scope of the inquiry and terms of reference;
to the proceedings reflects the especially important role
their interests play in the conduct of the investigation. (b) The procedures and methods of
However, all other interested parties should also have evaluating evidence;
an opportunity to be heard. The investigative body
must be entitled to issue summonses to witnesses, (c) A list of all witnesses, including age and gender,
including the officials allegedly involved, and to who have testified, except for those whose identities
demand the production of evidence. All these witnesses are withheld for protection or who have testified in
should be permitted legal counsel if they are likely to camera, and exhibits received as evidence;
be harmed by the inquiry, for example, when their
testimony could expose them to criminal charges or (d) The time and place of each sitting (this might be
civil liability. Witnesses may not be compelled to testify annexed to the report);
against themselves. There should be an opportunity
for the effective questioning of witnesses by the (e) The background of the inquiry, such as relevant
commission. Parties to the inquiry should be allowed social, political and economic conditions; 374
to submit written questions to the commission.
(f) The specific events that occurred and the evidence
10. Evaluation of evidence upon which such findings are based;

249. The commission must assess all information and (g) The law upon which the commission relied;
evidence it receives to determine reliability and
probity. The commission should evaluate oral (h) The commission’s conclusions based on applicable
testimony, taking into account the demeanour and law and findings of fact;
overall credibility of the witness. The commission
must be sensitive to social, cultural and gender issues (i) Recommendations based on the findings of the
that affect demeanour. Corroboration of evidence commission.
from several sources will increase the probative
value of such evidence and the reliability of hearsay 251. The State should reply promptly and publicly to
evidence. The reliability of hearsay evidence must the commission’s report and, where appropriate,
be considered carefully before the commission indicate which steps it intends to take in response to
accepts it as fact. Testimony not tested by cross- the report, particularly with a view to expeditiously
examination must also be viewed with caution. In and effectively implementing its recommendations.
camera testimony preserved in a closed record or
not recorded at all is often not subject to cross-
examination and, therefore, may be given less weight. E. Role of prosecutors, judges,
national human rights institutions
11. Report of the commission and other actors in the
investigation of torture
250. The commission should issue a public report within
a reasonable period of time, which “should be 252. “Judges, prosecutors and lawyers play a critical
published widely and in a manner that is accessible role in upholding human rights, including the
to the broadest audience possible”. 373 Furthermore, absolute and non-derogable right of freedom
when the commission is not unanimous in its findings, from torture and other cruel, inhuman or
the minority commissioners should file a dissenting degrading treatment or punishment.” 375

373 A/HRC/19/61, para. 77.
374 According to the Special Rapporteur on torture, “beyond a recitation of facts, the report of a commission of inquiry should attempt to provide an accurate picture of the social
and political background against which the acts of torture and other international crimes took place. Crucially, the report should identify loopholes in the public and private
institutional order that have allowed for the breakdown of legal and procedural protections and led to a culture of impunity for the crimes investigated by the commission”
(Ibid., para. 75).
375 Human Rights Council resolution 35/12, thirteenth preambular paragraph. See also Foley, Combating Torture (see footnote 240).

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