Page 85 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

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

183. The Convention against Torture envisages three main 185. Investigations may take the form of a criminal
pillars in the fight against torture: the obligation of investigation into specific acts of torture, particularly
States to ensure justice and to prevent and redress as defined in article 1 of the Convention against
all acts of torture. The obligation to investigate is Torture or torture as an element of war crimes, crimes
central to the realization of all three main pillars. 315 against humanity or genocide, or other forms of
The Special Rapporteur on torture specified that: cruel, inhuman or degrading treatment or punishment
(ill-treatment). 319 Investigation of such acts may also
The obligation to investigate acts of torture come within the mandate of national human rights
is initiated by the existence of reasonable institutions, fact-finding missions or commissions
grounds. Evidence of torture that rises to the of inquiry, which exercise important investigative
level of “proof” in criminal proceedings (that functions. 320 Evidence of torture is relevant, and often
is, beyond a reasonable doubt) should not of critical importance, in a range of legal proceedings,
be necessary to establish State recognition for example: civil and public law inquiries, claims
and responsibility for torture or to trigger concerning reparation for torture, applications for
the obligations that do not involve assigning asylum and non-refoulement, national, regional and
individual guilt and punishment, such as the international human rights complaints procedures,
implementation of public policies for prevention and criminal proceedings, including the exclusion of
and administrative or civil remedies, including evidence obtained as a result of torture. Irrespective
rehabilitation. This is important because States of the legal context in which it takes place, in order
often claim that torture and their corresponding to combat impunity any investigation or other
obligations to address it do not exist because procedure to establish the facts of, and responsibility
torture has never been “proven” in court. 316 for, torture or ill-treatment should be carried out in
conformity with the standards set out in this manual.
184. States are required under international law to
investigate reported incidents of torture promptly, 186. Under the Convention against Torture, States must
impartially and effectively. 317 In situations in which take legislative, institutional, administrative, budgetary
evidence warrants it, a State within whose jurisdiction and other measures to ensure that an adequate
a person alleged to have committed or participated framework for prompt, impartial, independent,
in torture is present must submit the case to its own effective and gender- and child-sensitive investigations
competent authorities for the purpose of investigation is in place. 321 The Special Rapporteur on torture
and prosecution under national or local criminal has recommended adopting and implementing the
laws unless it extradites the alleged perpetrator to manual “as an investigative tool and standard”. 322
another State that has competent jurisdiction. 318 The States are required to make torture a specific offence
fundamental principles of any viable investigation under national law, which is subject to proportionate
into incidents of torture are competence, impartiality, penalties that reflect the gravity of the crime; 323
independence, adequate resources, promptness, establish jurisdiction over the offence of torture,
effectiveness, thoroughness, sensitivity to gender, age, including by providing for the exercise of the principle
disability and similarly recognized characteristics, of universal jurisdiction; 324 and remove legal barriers,
victim involvement and public scrutiny. These such as amnesties, immunities, statutes of limitation
elements can be adapted to any legal system and or other such procedural restrictions, 325 including
should guide all investigations of alleged torture. pardons or other measures resulting in impunity. 326
States must guarantee the rights of victims and

315 A/69/387, para. 21.
316 Ibid., para. 25.
317 Convention against Torture, arts. 12–13. See also A/69/387, paras. 22–28.
318 Convention against Torture, arts. 5–8.
319 See, inter alia, Rome Statute, arts. 8 (2) (a) (ii) and (c) (i), 7 (1) (f) and 6 (b).
320 OHCHR, Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice (New York and Geneva, 2015).
321 Convention against Torture, art. 2; and Committee against Torture, general comment No. 2 (2007), para. 2.
322 A/69/387, para. 67.
323 Committee against Torture, general comment No. 2 (2007), paras. 8–11.
324 A/HRC/4/33, paras. 41–47.
325 Committee against Torture, general comment No. 2 (2007), para. 5; and general comment No. 3 (2012), para. 38.
326 Inter-American Court of Human Rights, Barrios Altos v. Peru (see footnote 102); and Barrios Altos and La Cantuta v. Peru (see footnote 103). See also Committee against
Torture, Urra Gurridi v. Spain (CAT/C/34/D/212/2002), para. 6.7.

44