Page 90 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

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

an accurate written report. This report should authorized by a court empowered to enforce the
include at least the following (see annex I): transfer. For general considerations about written
reports following allegations of torture, see chapter
(a) The circumstances of the interview. The name of IV. Chapters V and VI describe in detail the physical
the subject and name and affiliation of those present and psychological assessments, respectively.
at the examination; the exact time and date, location,
nature and address of the institution (including,
where appropriate, the room) where the examination C. Procedures involved
is being conducted (e.g. detention centre, clinic or in an investigation of torture
house); any appropriate circumstances at the time of or ill-treatment
the examination (e.g. the nature of any restrictions
on arrival or during the examination, the presence of 1. Determination of the appropriate investigative
security forces during the examination, the demeanour body
of those accompanying the prisoner and any
threatening statements to the examiner); and any other 201. States must ensure that any investigation of torture
relevant factors; is carried out by an independent and impartial
body, which has no institutional links to the alleged
(b) The background. A detailed record of the subject’s perpetrator(s) and is free from bias. 359 In cases
account of events as given during the interview, in which persons acting in an official capacity are
including alleged methods of torture or ill-treatment, suspected of being involved in torture, including
the time at which torture or ill-treatment was alleged possible orders for the use of torture by ministers,
to have occurred and all complaints of physical and ministerial aides, officers acting with the knowledge
psychological symptoms; of ministers, senior officers in State ministries, senior
military leaders or others in similar positions of
(c) A physical and psychological examination. A record authority, or tolerance of torture by such individuals,
of all physical and psychological findings upon clinical an objective and impartial investigation may not be
examination, including appropriate diagnostic tests, possible unless a specially constituted independent
body diagrams to record the location and nature of all body is established (such as a commission of
injuries and, where possible, colour photographs of inquiry). A specially constituted independent
all injuries; investigative body may also be necessary in situations
in which the public interest would be served by
(d) An opinion. An interpretation as to the probable it, particularly where investigations by regular
relationship of physical and psychological findings to investigative agencies are in question because of a
possible torture or ill-treatment. A recommendation lack of capacity, expertise or impartiality or for other
concerning any necessary medical and/or psychological reasons, including the importance of the matter, the
treatment or further examination(s) should apparent existence of a pattern of abuse, complaints
also be given; from the person or other substantial reasons.

(e) A record of authorship. The report should clearly 202. States must consider the following factors when
identify those carrying out the examination and their deciding to establish a specially constituted
authority and should be signed. independent body or mechanism, such as a commission
of inquiry. First, persons subject to an inquiry
200. Reports should be confidential and communicated to should be guaranteed the minimum procedural
the subjects or their nominated representative. Reports safeguards recognized in international law at all
should be provided in writing, where appropriate, stages of the investigation. Second, investigators
to the authority responsible for investigating the should have the support of adequate technical
allegation of torture or ill-treatment. It is the and administrative personnel, as well as access
responsibility of the State to ensure that reports to objective, impartial legal advice to ensure that
are delivered securely to these persons. Reports the investigation will produce admissible evidence
should not be made available to any other persons, for criminal or other legal proceedings. Third,
except with the consent of the subjects or when investigators should receive the full scope of the State’s

359 Nelson Mandela Rules, rule 71; Committee against Torture, general comment No. 3 (2012), para. 23; and CAT/C/DEU/CO/5, para. 19.

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