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

existence of documents, such as a statement signed (viii) Statements from alleged perpetrators
under threat of torture or ill-treatment.
222. Investigators should make every possible effort to
(vii) Statement from the person who is alleging torture interview alleged perpetrators. Where necessary,
and other witnesses the investigators should use identity parades
or other investigative measures to identify the
221. The officially mandated investigator with the mandate alleged perpetrators. Investigators must provide
and capacity to keep the records safe should tape- the alleged perpetrators with legal protections
record a detailed statement from the person and have it guaranteed under international and national law.
transcribed. The investigator should use broad open- This includes safeguards against arbitrary arrest
ended questions (i.e. questions that require a narrative and detention, the presumption of innocence, and
answer) to obtain a broad uninterrupted account and the right to a fair trial. Such guarantees do not
more specific open-ended questions to obtain particular include amnesties, immunities or other mechanisms
details and clarify the account. The statement or that result in the impunity of the perpetrators.
interview notes should be based on answers given in
response to “tell, explain and describe” open-ended (b) Securing and obtaining physical evidence
questions (e.g. “Please tell me how …”, “Please explain
to me what …” and “Please describe to me …”) and 223. One of the most important aspects of a thorough
“wh” open questions concerning the “what”, “who”, and impartial investigation of torture or ill-treatment
“when”, “where”, “how” and “how do you know” of is the collection and analysis of physical evidence.
the alleged torture or ill-treatment. “Why” is usually Physical evidence consists of any physical objects
not a productive question type as it can invite an or matter that can provide relevant information to
opinion response rather than a fact-based response help establish that torture has taken place or provide
and may also be stigmatizing or blaming. Investigators a link between the torture and its alleged victim or
should not use leading questions. Non-leading between the torture and its alleged perpetrator(s). It
questions do not make assumptions or conclusions includes: (a) physical material, such as blindfolds,
and allow the person to offer the most complete and tape, clothes or electric devices; (b) weapons, such as
unbiased testimony. Examples of non-leading questions knives, batons or other torture devices; (c) biological/
are “What happened to you?” and “Where did this forensic materials, including saliva, blood, vomit,
happen?” rather than “Were you tortured in prison?”. semen and vaginal fluids; (d) electronic/digital items,
The latter question assumes that what happened to such as phones or computers; (e) toxicological analysis,
the witness was torture and limits the location of the showing the presence of drugs, poison or alcohol; (f)
actions to a prison. Avoid asking questions with lists, traces, such as fibres or hair; (g) impressions, including
as this can force the individual into giving inaccurate fingerprints, footprints and marks; and (h) the sites
answers if what actually happened does not exactly of alleged violations, such as detention centres.
match one of the options. Allow persons to tell their
own account of events without interrupting them to 224. Provided the investigators have the legal authority
first obtain a free recall account, but assist by asking and professional training required to collect and
questions that increase in specificity. Encourage store relevant physical evidence, and the resources
persons to use all their senses in describing what to properly and safely store, transport and preserve
happened to them. Ask what they smelled, heard such evidence, they should gather as much physical
and felt. This is important, for instance, in situations evidence as possible to document an incident or
in which the person may have been blindfolded pattern of torture or ill-treatment. Investigators who
or experienced the assault in the dark. Similar lack the authority, capacity or resources should not
considerations apply, with appropriate adjustments collect physical evidence and instead document the
made, to taking statements from other witnesses, evidence by recording notes, drawing sketches and
including relatives of alleged victims, co-detainees photographing and/or video recording the evidence.
and officials, in relation to establishing relevant facts Investigators should document the chain of custody
relating to the alleged torture or ill-treatment, including involved in recovering and preserving physical
prior to, during and following such treatment. evidence in order to use such evidence in future legal
proceedings, including potential criminal prosecutions.

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