Page 94 - ประมวลสรุปความรู้เกี่ยวกับพิธีสารอิสตันบูลและพิธีสารมินนิโซตา

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

other form of intimidation that may arise pursuant to in which an investigation leads to prosecution or
the investigation and specific investigative measures, another public truth-telling forum, the investigator
such as identity parades. Those potentially implicated should recommend measures to prevent harm to the
in torture or ill-treatment should be removed from alleged victim by such means as expunging names
any position of control or power, whether direct and other information that identifies the person
or indirect over complainants, witnesses and their from the public records or offering the person an
families as well as those conducting investigations. opportunity to testify through image or voice-altering
Investigators must give constant consideration to the devices or closed-circuit television. These measures
effect of the investigation on the safety of the person must be consistent with the rights of the accused.
alleging torture or ill-treatment and other witnesses.
The rights of witnesses, such as the right to privacy, (v) Use of interpreters
may only be interfered with to the extent absolutely
necessary for the investigation and in conformity with 219. Interpreters fulfil a critical role in investigations.
recognized international human rights standards. An interpreter is the gatekeeper and conduit for
information flowing both ways between the interviewer
217. One technique suggested for providing a measure of and interviewee. The absence of a good interpreter
safety to interviewees, including persons deprived of risks jeopardizing the efficacy of the investigation.
their liberty in countries in conflict situations, is to Working through an interpreter when investigating
keep a secure record of the identities of people visited torture is not easy, even with professionals (see
so that investigators can follow up on the safety of paras. 296–298 below). It will not always be possible
those individuals during a return visit. Investigators to have interpreters on hand for all different languages
must be allowed to talk to anyone and everyone, and dialects and sometimes it may be necessary
freely and in private, and be allowed to repeat a to use interpreters from the person’s family or
visit to the same person (thus the need for traceable cultural group. This is not ideal, as persons may not
identities of those interviewed) as the need arises. Not always feel comfortable talking about the torture or
all countries accept these conditions and investigators ill-treatment experience through people they know.
may find it difficult to obtain such guarantees. In Children should not be expected to interpret for
cases in which witnesses are likely to be put in danger their parents in interviews that relate to torture or
because of their testimony, the investigator should ill-treatment. Ideally, the interpreter should be part
seek other forms of evidence referred to in this chapter of the investigating team, professionally trained
that can be secured without creating such a risk. and vetted, and knowledgeable about torture and
ill-treatment issues as well as words and euphemisms
218. Persons deprived of their liberty are at higher risk used to refer to body parts and sexual acts in order
of reprisals as a result of their cooperation with to recognize hints if sexual torture is being disclosed
investigators. Persons deprived of their liberty might and react appropriately. When interviewing children,
have different reactions to different situations. In only interpreters who have received special training
one situation, persons deprived of their liberty may and have prior experience of working with children
unwittingly put themselves in danger by speaking should be used (see annex II). Interpreters should:
out too rashly, thinking that they are protected by (a) speak directly to victims and witnesses; (b) only
the very presence of the “outside” investigator. This use direct speech (“can you please describe what
may not be the case. In other situations, investigators happened” not “the investigator is asking what
may come up against a “wall of silence”, as persons happened”); (c) use active listening techniques
deprived of their liberty may be too intimidated to (posture, nodding and respectful eye contact); (d) be
trust anyone, even when offered talks in private. In able to control their emotional responses and show
the latter situation, it may be necessary to start with empathy and sensitivity; and (e) not editorialize, that
“group briefings” (but not group interviews), so as is interpret exactly what is said and nothing more.
to be able to explain clearly the scope and purpose
of the investigation and subsequently offer to have (vi) Information to be obtained from the person
interviews in private with those persons who wish to alleged to have been tortured or ill-treated
speak. If the fear of reprisals, justified or not, is too
great, it may be necessary to interview all persons 220. The investigator should attempt to obtain
deprived of their liberty in a given place of custody, as much of the following information as
so as not to pinpoint any specific person. In situations

53