INTRODUCTION: This manual has been written as an information resource for judges and prosecutors throughout the world in order to assist them to prevent and investigate acts of torture. Based on international standards, it also contains checklists of good practice and advice that should be applicable in any legal system. Given the different legal systems, rules of evidence and methods of procedure that exist in different countries it is not possible to produce a detailed legal reference book that will be universally applicable in every jurisdiction. This manual instead aims to provide a practical guide for judges and prosecutors whose decisions may, in many cases, have a direct impact on the problem of torture and other prohibited forms of ill-treatment.

Torture is absolutely prohibited under international law and cannot be justified under any circumstances. The United Nations (UN) has condemned torture as a denial of the purposes of its Charter and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights. Torture is also prohibited by most domestic legal systems in the world. Even where there is no specific crime of torture in domestic law, there are usually other laws under which the perpetrators can be held to account. Nevertheless, acts of torture and ill-treatment remain widespread across the world.

Preventing torture and other forms of ill-treatment is primarily an act of political or professional will and the responsibility to combat it extends to all those in authority in society. Judges and prosecutors, given their role in upholding the rule of law, have a particular responsibility to help prevent acts of torture and ill-treatment by promptly and effectively investigating such acts, prosecuting and punishing those responsible and providing redress to the victims. Preventing and investigating alleged acts of torture poses particular problems for judges and prosecutors, and for the administration of justice because the crime is usually committed by the same public officials who are generally responsible for upholding and enforcing the law. This makes it more difficult to deal with than other forms of criminality. Nevertheless, judges and prosecutors have a legal duty to ensure that the integrity of their profession and the justice they uphold are not compromised by the continued tolerance of torture or other forms of ill-treatment.

As well as considering the specific safeguards detailed in this manual it is important that all those in authority – particularly those responsible for law enforcement and the administration of justice – publicly condemn torture in all its forms whenever it occurs. They should make it clear that those responsible for committing acts of torture and those in charge of places of detention at the time such abuses are perpetrated will be held personally responsible for these abuses.

Torture and other forms of ill-treatment may take place in virtually any location. People are particularly at risk when they are deprived of their liberty, held in pre-trial detention or subject to interrogation. The greatest risk is in the first phase of arrest and detention before the person has access to a lawyer or court. People being held in incommunicado detention – without access to anyone in the outside world – are particularly vulnerable.

Judges and prosecutors have a responsibility to ensure that they do not themselves, unintentionally or otherwise, collude with acts of torture while carrying out their official functions. In some legal systems, prosecutors may be directly involved in conducting interrogations in which coercive methods of extracting confessions and information are used. In some situations, prosecutors may rely on information or confessions, when conducting cases, without satisfying themselves that these were not obtained by coercive means.

Sometimes judges and prosecutors fail to ensure that the laws and procedures designed to protect people in detention and prevent acts of torture and other forms of ill-treatment are upheld. They may also fail to require that a person making a statement or confession does so in their presence; fail to explore for signs of physical or mental distress on a detainee who is brought before them; return a detainee to the custody of law enforcement officials where there is reason to believe that the detainee will suffer ill-treatment; fail to react to signs which indicate that a person may have been ill-treated even in the absence of a formal complaint; fail to take complaints of ill-treatment sufficiently seriously; fail to investigate such allegations with a view to bringing proceedings against the perpetrators, and fail to exercise their powers to carry out thorough inspections of places of detention.

Conversely, judges and prosecutors may exercise their powers to prevent and investigate acts of torture. They may demand that a suspect be brought before them at the earliest opportunity and check that he or she is being properly treated. Where they have discretion, they may interpret the balance of proof, with respect to allegations of torture and the admissibility of evidence obtained through it, in ways that discourage law enforcement officers, and those in charge of places of detention, from carrying out or permitting others to carry out, torture and other forms of ill-treatment. They may also stay alert to all possibilities that their own courts or tribunals do not conform to the highest possible standards with respect to preventing and investigating torture.

While international law provides a basic minimum, there are also examples from different countries that can be drawn on when developing standards of good practice. The case studies contained in this manual, which only represent a brief snap-shot of such cases drawn from around the world, are intended to illustrate how judges and prosecutors have sought to combat torture within their own national jurisdictions.

The first chapter of this manual briefly sets out the prohibition of torture in international law and the obligations that flow from this prohibition. It also refers to some of the international supervisory mechanisms that exist. The second chapter outlines the safeguards that exist for people who have been deprived of their liberty not to be subjected to torture or any other forms of ill-treatment. It includes both treaty and non-treaty standards and regional as well as universal instruments. Together with the case law and reports of international monitoring bodies and institutions, these provide an important legal source that can help inform the domestic judge and prosecutor.

The third chapter describes the role of judges and prosecutors in ensuring that these standards are upheld in practice. This includes checklists of safeguards for those deprived of their liberty and advice on carrying out inspections of detention facilities. It also considers the role of judges and prosecutors when it is alleged that evidence in a criminal trial has been obtained by torture or other forms of ill-treatment. The positive duty to protect a person who may be at risk of torture in other countries – in the context of deportation or extradition proceedings, or claims for asylum – is also briefly discussed.

The fourth chapter outlines how those responsible for investigating acts of torture should respond to allegations and gather evidence relating to torture. It discusses who should carry out such investigations and the general principles governing them. It also provides advice on interviewing victims, witnesses and suspects and protecting witnesses during investigations and trials of suspected torturers.

The fifth chapter relates to the prosecution of those involved in torture or other forms of ill-treatment. It discusses the legal definition of torture and other crimes of ill-treatment, who should be held culpable for such crimes and how they can be identified and prosecuted. The issues of universal jurisdiction, amnesties, punishment and redress are briefly discussed.

The texts of some international instruments are contained as appendices to this manual. A table of the status of ratification of the principal human rights treaties is also attached.