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

the protection of human rights and the application Convention against Torture, a judge must not admit
of the rule of law and for ensuring fair trials any evidence alleged to have been obtained as a result
and the administration of justice without any of torture or ill-treatment in situations in which the
discrimination.” 383 Judges must be provided with prosecuting authorities cannot demonstrate that such
the requisite independence, training, resources and evidence was not thus obtained, other than as evidence
protection that enable them to adequately discharge against the person accused of obtaining such evidence.
their multiple functions in the context of investigations The prohibition on the use of evidence or information
and other legal proceedings relating to torture and alleged to have been obtained as a result of torture (the
ill-treatment in accordance with this manual. exclusionary rule) applies to any proceedings, including
court and non-court proceedings, such as penal and
258. Judges must be particularly vigilant in exercising an administrative hearings, and extradition hearings. 388
oversight role within the scope of their functions to
ensure the physical and psychological integrity and 260. Judges mandated to direct investigations into cases of
well-being of any persons deprived of their liberty. 384 torture or ill-treatment must ensure that all relevant
Judges have the judicial authority to order and investigative measures are taken in accordance
ensure that suspects and detainees are not arbitrarily with this manual, and direct investigative bodies to
detained, or detained or transferred to places where take further measures as required. In criminal trials
they could be tortured. In situations in which State against the alleged perpetrators of torture, judges
authorities or others acting in an official capacity, should hear and weigh all available evidence with
as well as judges, know or have reasonable grounds a view to establishing to the required standard of
to believe that torture or ill-treatment has been, is proof whether the accused are guilty – while fully
being or will be committed by State actors or private considering their right to a fair trial – and, if so,
actors and, where mandated to do so, they fail to what punishment is appropriate in the particular
investigate, prosecute and punish the actors, the circumstances. In particular, judges should examine
State bears responsibility. Officials who did not take the relevance and reliability of forensic evidence,
measures to prevent such treatment from taking which has been described as a type of expert
place should be held responsible for consenting to evidence, by considering the professional expertise,
or acquiescing in such impermissible acts. 385 The relevant circumstances and other evidence. 389 As
Committee against Torture cites the specific example emphasized by the Special Rapporteur on torture:
of the case in which a person is to be transferred or
sent to the custody of an individual or institution The Istanbul Protocol should be used for
known to have engaged in torture or ill-treatment or assessment of allegations of torture and medico-
not to have implemented adequate safeguards. 386 legal reports undertaken in compliance with
the standards and principles of the Protocol,
259. In situations in which judges suspect that a person including independence and impartiality, [which]
has been subjected to torture or ill-treatment, they present reliable findings on torture. These medico-
should use their judicial authority and power to initiate legal reports therefore should be considered
investigations or inform prosecutors to enable them as reliable evidence on the issue of whether
to intervene in the matter. In particular, in situations torture has or has not been perpetrated. 390
in which suspects or the accused raise allegations
of torture or ill-treatment in the course of legal 261. Judges should ensure that the principles and
proceedings or trials, judges must take action to ensure standards set out in this manual are upheld in all
that a prompt, impartial and effective investigation is legal proceedings, including fundamental and civil
carried out into such allegations in accordance with rights cases, administrative and civil proceedings,
this manual. 387 In accordance with article 15 of the and asylum and non-refoulement cases. Judges of

383 Human Rights Council resolution 35/12, fifth preambular paragraph. See also the Basic Principles on the Independence of the Judiciary.
384 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 4; and CAT/OP/2.
385 Committee against Torture, general comment No. 2 (2007), para. 18.
386 Ibid., para. 19.
387 CAT/C/54/2, para. 92.
388 Committee against Torture, P.E. v. France (CAT/C/29/D/193/2001), paras. 3.3, 6.2 and 6.3.
389 A/69/387, para. 49.
390 Ibid., para. 52.

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