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II. RELEVANT ETHICAL CODES ISTANBUL PROTOCOL

and can be required by judges in proceedings (c) Judges’ role in the prevention of and protection
before a court “to refrain from manifesting bias against torture
or prejudice, or engaging in harassment”. 237
137. In order to protect individuals from torture and
2. Principles guiding the conduct of judges ill-treatment, judges “may demand that a suspect be
brought before them at the earliest opportunity and
check that he or she is being properly treated. Where
(a) Duty to promote and protect human rights they have discretion, they may interpret the balance
of proof, with respect to allegations of torture and
135. As the ultimate arbiters of justice, judges play a special the admissibility of evidence obtained through it, in
role in the protection of human rights. Judges have an ways that discourage law enforcement officers, and
ethical duty to ensure that human rights are protected. those in charge of places of detention, from carrying
Judges can be responsible for human rights violations out, or permitting others to carry out, torture and
when “exercising or failing to exercise their authority other forms of ill-treatment.” 240 A former Special
in ways that seek to conceal violations perpetrated by Rapporteur on torture, Sir Nigel Rodley, specified
military, para-military, or law enforcement agents”. 238 that “when there is prima facie evidence that a
defendant has confessed under torture and if his/
her allegations are consistent with other evidence,
(b) Duty to decide matters impartially such as forensic evidence, the trial must be suspended
in accordance with the law by the judge”. 241 Furthermore, “if a confession
[obtained by means of torture or under duress] is the
136. Principle 6 of the Basic Principles on the Independence only evidence against a defendant, the judge should
of the Judiciary states that: “The principle of the decide that there is no basis for conviction”. 242
independence of the judiciary entitles and requires
the judiciary to ensure that judicial proceedings are 3. Principles guiding the conduct of prosecutors
conducted fairly and that the rights of the parties are
respected.” In addition, the Bologna and Milan Global (a) Duty to investigate and prosecute torture and
Code of Judicial Ethics calls for the strict independence other cruel, inhuman or degrading treatment
of the judiciary from the legislative and executive or punishment
branches of government and “that in the decision-
making process, judges should be independent and be 138. Prosecutors have an ethical obligation to investigate
able to act without any restriction, improper influence, and prosecute torture or other cruel, inhuman or
inducements, pressures, threats or interferences, degrading treatment or punishment committed by
direct or indirect, from any quarter or for any public officials. Article 15 of the Guidelines on the
reason”. 239 The Code also recognizes the importance Role of Prosecutors states: “Prosecutors shall give
of a competent, independent and impartial judiciary due attention to the prosecution of crimes committed
in the protection of human rights. Thus, in order to by public officials, particularly corruption, abuse of
protect individuals from torture and ill-treatment, power, grave violations of human rights and other
judges should have sufficient knowledge of the Istanbul crimes recognized by international law and, where
Protocol and its Principles and ensure that they are authorized by law or consistent with local practice, the
applied by relevant parties in judicial proceedings. investigation of such offences.” 243 Prosecutors should
“take all complaints of ill-treatment seriously” 244 and
carry out investigations actively (see para. 253 below)
and expeditiously. 245

237 American Bar Association, Model Code of Judicial Conduct, rule 2.3 (C).
238 International Commission of Jurists, Judicial Accountability: A Practitioners’ Guide, p. 9.
239 Bologna and Milano Global Code of Judicial Ethics, para. 4.4 (footnote omitted). The provisions of this Code were articulated to clarify previous international judicial codes
and are intended to apply to all judges.
240 Conor Foley, Combating Torture: A Manual for Judges and Prosecutors (Colchester, University of Essex, 2003), p. 2.
241 E/CN.4/2001/66/Add.2, para. 102.
242 Ibid.
243 Guidelines on the Role of Prosecutors, para. 15; and United Nations Office on Drugs and Crime, The Status and Role of Prosecutors.
244 Foley, Protecting Brazilians From Torture, p. 29.
245 Guidelines on the Role of Prosecutors, paras. 11–12; International Association of Prosecutors, Standards of Professional Responsibility, para. 4.2; and Foley, Protecting
Brazilians From Torture, p. 181.

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