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

the interviewer should use care not to put them the alleged victim. The investigator must be sensitive
in danger. The interviewer must choose a place in tone, phrasing and sequencing of questions,
for a private interview where the witness feels given the traumatic nature of the alleged victim’s
comfortable to talk freely, as much as possible, testimony. The witness must be told of the right to
and make every effort to obtain such conditions. stop the questioning at any time, to take a break if
needed or to choose not to respond to any question.
212. Investigations occur in a variety of political
contexts. This results in important differences 215. Psychological counsellors or those trained in working
in the manner in which investigations should with torture victims should be accessible, if possible,
be conducted. The investigator must adapt the to the alleged victim, witnesses and members of the
following guidelines according to the particular investigating team. Retelling the facts of torture
situation and purpose of the investigation. or ill-treatment may cause the person to relive the
experience or suffer other trauma-related symptoms
213. Investigations taking place in challenging contexts, (see paras. 277–280 below). Hearing details of
such as during armed conflict or in extremely torture may result in secondary trauma symptoms to
resource-limited contexts, must nevertheless take all interviewers, and they must be encouraged to discuss
reasonable steps to comply with the standards set their reactions with one another, respecting their
out in this manual. 366 In situations in which strict professional ethical requirements of confidentiality.
compliance with the standards proves impossible, Wherever possible, this should be with the help of
for instance in contexts in which the capacity or an experienced facilitator. There are two particular
resources are not present, States should endeavour risks to be aware of: first, there is a danger that
to draw on international expertise and support the interviewers may identify with those alleging
in order to comply with their obligations. torture and not be sufficiently challenging of the
account of events; and, second, the interviewers
214. The political context may be hostile towards the may become so used to hearing histories of
alleged victim and the examiner, for example, when torture that they diminish in their own minds the
detainees are interviewed while they are held in prison experiences of the person being interviewed.
by their Governments or while they are detained
by foreign Governments in order to be deported. (iv) Safety of witness
In countries where asylum seekers are examined in
order to establish evidence of torture or ill-treatment, 216. The victim’s testimony is crucial in establishing
the reluctance to acknowledge claims of trauma and the occurrence of torture or ill-treatment. Other
torture or ill-treatment may be politically motivated. witnesses play an important role in investigations
The possibility of further endangering the safety of torture or ill-treatment, including as eyewitnesses
of the detainee is very real and must be taken into of relevant acts or omissions, or by testifying on
account during every part of the investigative process. the condition of the alleged victim before and after
Even in cases in which persons alleging torture or the alleged torture or ill-treatment, on detention
ill-treatment are not in imminent danger, investigators conditions, other relevant circumstances, the
should use great care in their contact with them. The identities of perpetrators or as expert witnesses.
investigator’s choice of language and attitude will Witnesses may be vulnerable, uncooperative or
greatly affect the alleged victim’s ability and willingness hostile, and can therefore pose a challenge for the
to be interviewed. The location of the interview investigating authorities. States need to consider
should be as safe and comfortable as possible, the difficult position in which witnesses typically
including access to toilet facilities and refreshments. find themselves when involved in investigations of
Sufficient time should be allotted to interview the torture or ill-treatment. The State is responsible for
alleged victim. Investigators should not expect to get protecting complainants, victims and witnesses, their
the full account of events during the first interview. families and legal representatives, and human rights
Questions of a private nature may be traumatic for defenders from violence, threats of violence or any

366 See also European Court of Human Rights, Mocanu and Others v. Romania, application Nos. 10865/09, 45886/07 and 32431/08, Judgment, 17 September 2014,
para. 319: “Even where the events leading to the duty to investigate occur in a context of generalised violence and investigators are confronted with obstacles and constraints
which compel the use of less effective measures of investigation or cause an investigation to be delayed, the fact remains that Articles 2 and 3 [of the European Convention
on Human Rights, the right to life and the prohibition of torture, respectively] entail that all reasonable steps must be taken to ensure than an effective and independent
investigation is conducted.”

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