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

regional and international courts and tribunals 4. Other actors
and members of human rights treaty bodies should
consider questions pertaining to torture or ill-treatment 263. International law obliges States to investigate
with due reference to the standards and principles allegations of torture or ill-treatment. Actors other
set out in this manual. However, the outcome of than States, such as civil society organizations, play
legal procedures should not be dependent on a prior an important independent and complementary role
full investigation of the allegations of torture or in seeking to achieve the objectives of investigations
ill-treatment. For example, in constitutional, civil to combat impunity, secure justice and uphold the
or administrative cases in which a victim presents rule of law. This role consists in documenting torture
credible allegations of torture or ill-treatment in or ill-treatment, representing victims, prompting
custody or an individual died in custody, the burden investigations or other inquiries or legal proceedings
of proof ought to shift and be on the State to provide a resulting in investigations, providing evidence and/
plausible explanation of how the harm was caused. 391 or expertise to investigative bodies, scrutinizing
proceedings and providing legal analysis of the
3. National human rights institutions and national adequacy of investigations. When documenting
preventive mechanisms torture or ill-treatment, for use in legal procedures
– such as investigations or judicial or quasi-judicial
262. National institutions that are, in accordance with the proceedings – for redress, prevention and accessing
principles relating to the status of national institutions services or in asylum or non-refoulement applications,
for the promotion and protection of human rights non-State actors should seek documentation that
(the Paris Principles), vested with the competence to is from a reliable and identifiable source, detailed,
promote and protect human rights should be mandated internally consistent and collected as soon as
to investigate all complaints of human rights violations, possible. Non-State actors should adhere to the
including torture and ill-treatment. 392 In exercising this principles set forth in this manual, so as not to
mandate, national human rights institutions should jeopardize the purpose of an investigation. States are
discharge their functions in respect of alleged acts, required to respect the role played by such actors
and patterns of torture or ill-treatment, in accordance and provide effective protection against any threats,
with the non-coercive investigatory techniques and harassment or other unwarranted interference. 395
the standards and principles set out in this manual,
particularly in respect of any legal investigations into
allegations of torture or ill-treatment that such an F. Use of evidence of torture
institution is mandated to carry out. 393 Monitoring or ill-treatment in other legal
bodies, such as national preventive mechanisms, while procedures
not tasked with investigating complaints, should also
be provided with training on the manual. 394 Such 264. The findings of investigations concerning alleged
bodies should be able to receive confidential allegations acts of torture or ill-treatment should be taken
of torture or ill-treatment and be mandated to identify into consideration in any other relevant legal
issues of concern, which must be raised with the proceedings. This includes: (a) proceedings relating
authorities concerned, as part of their regular visits. to the exclusion of confessions or statements made
under torture (exclusionary rule) in which the State
bears the burden of proof in demonstrating that
a person has not been tortured; 396 (b) civil and
administrative cases and fundamental rights and
human rights cases, particularly to establish liability
and identify adequate forms of reparation so as to

391 E/CN.4/2003/68, para. 26 (k). This is in line with the jurisprudence of regional and international courts and human rights treaty bodies, see United Nations Voluntary Fund
for Victims of Torture, “Interpretation of torture in the light of the practice and jurisprudence of international bodies” (2011), p. 9.
392 A/56/44, para. 46 (c).
393 Association for the Prevention of Torture, Asia Pacific Forum of National Human Rights Institutions and OHCHR, Preventing Torture: An Operational Guide for National Human
Rights Institutions, pp. 55–60.
394 See, inter alia, the Optional Protocol to the Convention against Torture. For the relationship between national human rights institutions and national preventive mechanisms,
see OHCHR, Preventing Torture: The Role of National Preventive Mechanisms– A Practical Guide, Professional Training Series No. 21 (New York and Geneva, 2018), p. 16.
395 General Assembly resolutions 32/31 and 70/161.
396 A/HRC/25/60.

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