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

1. Prosecutors standards, investigation methods and developments. 381
Prosecutors should exercise their discretion in a
253. Prosecutors, in the administration of justice, “shall manner that fully upholds the prohibition of torture
perform an active role in criminal proceedings, throughout any legal proceedings. They should not
including institution of prosecution and, where become complicit in the enabling or commission of acts
authorized by law or consistent with local practice, in of torture or ill-treatment or impunity for such acts.
the investigation of crime, supervision over the legality
of these investigations, supervision of the execution of 256. Upon receiving a complaint, or otherwise learning of
court decisions and the exercise of other functions as an allegation of torture or ill-treatment, prosecutors
representatives of the public interest”. 376 In doing so, should immediately take measures to ensure that a
“prosecutors shall give due attention to the prosecution prompt, impartial, effective and gender- and child-
of crimes committed by public officials, particularly sensitive investigation is carried out in accordance
corruption, abuse of power, grave violations of human with this manual. 382 Prosecutors should take or
rights and other crimes recognized by international request expeditious investigative measures to be
law and, where authorized by law or consistent with taken in accordance with this chapter. They should
local practice, the investigation of such offences”. 377 open an investigation to this effect and in situations
in which investigations are at any stage found to
254. As a general principle, “prosecutors shall, in have been inadequate in light of the standards set
accordance with the law, perform their duties fairly, out in this manual, the original investigation should
consistently and expeditiously, and respect and be reopened or a fresh investigation commenced.
protect human dignity and uphold human rights, Throughout proceedings, prosecutors should take all
thus contributing to ensuring due process and the possible measures to ensure the protection of victims
smooth functioning of the criminal justice system”. 378 and witnesses. This includes instituting proceedings
Prosecutors have a duty to refuse to take into account against anyone who endangers the physical or
evidence that they know or believe on reasonable psychological integrity of victims or witnesses or
grounds was obtained through recourse to torture or others involved in investigations. Prosecutors should
ill-treatment. They must ensure that any information, seek to establish the responsibility of any officials
confession or admission obtained from a person by or other individuals involved in acts of torture or
such means is inadmissible in evidence against that ill-treatment and bring charges for the criminal
person in any proceeding (the exclusionary rule). offence of torture or ill-treatment, or relevant similar
However, such evidence, information, confession offences under national law, in situations in which
or admission may be admitted against any person sufficient evidence is available. In cases in which
accused of torture as evidence that it was obtained by insufficient evidence is available to bring charges of
torture. 379 In such cases, prosecutors must inform the torture or ill-treatment, prosecutors should consider
court about the existence of such evidence and should bringing charges for lesser crimes or recommending
take all necessary steps to ensure that those responsible disciplinary measures as appropriate. When requesting
for using such methods are brought to justice. 380 punishment, particularly a custodial sentence,
prosecutors must ensure that it is commensurate with
255. Prosecutors must be professionally qualified and the gravity of the offence, taking into consideration
provided with regular training, adequate resources, the rights and views of victims of torture or
independence and protection to ensure that they can ill-treatment and their families as appropriate.
exercise their role in the context of investigations into
alleged acts of torture or ill-treatment in accordance 2. Judges
with this manual. The prosecuting authorities should
issue guidelines on the use of this manual and 257. “An independent and impartial judiciary … and the
prosecutors should receive regular training on relevant integrity of the judicial system are prerequisites for

376 Guidelines on the Role of Prosecutors, para. 11.
377 Ibid., para. 15.
378 Ibid., para. 12.
379 See, in particular, Convention against Torture, art. 15.
380 Guidelines on the Role of Prosecutors, para. 16.
381 A/69/387, para. 67.
382 CAT/C/54/2, para. 92.

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