THE ROLE OF PROSECUTORS
Prosecutors have an important role in preventing the use of torture evidence being gathered by police
investigators, as well as in deciding which evidence is to be submitted in legal proceedings. Not only are they
frequently among the first authorities (aside from the police) to have access to interviewed persons and/or
transcripts of their interviews, in many jurisdictions they are also responsible for compiling the evidence and
assessing whether the case should proceed to trial, which involves an assessment of whether the evidence has
been lawfully and fairly collected. In a number of Latin American countries, prosecutors or a specific police force
known as “judicial police” (policía judicial), which are usually hierarchically subordinated to / report to the judicial
branch (e.g. judiciary or Prosecutor’s office), conduct the interviews, rather than the regular police service, as is
the case in common law countries.
The separation of the police from an independent prosecution service in a number of States (particularly common
law countries) has an important effect of reducing the pressure on police to solve their investigations through
relying on extracting confessions as primary evidence. In such systems, confession evidence is seen as only one
part of the case material that the prosecution must weigh when considering whether to proceed to trial.
Well positioned to minimise the incentives and risks of torture-obtained evidence, prosecutors (and in some Latin
American systems, the judicial police) have the opportunity to:
• Inform, as well as ask the suspect and/or their lawyer whether they have been informed of their rights and that
procedural safeguards have been observed;
• ask the suspect and/or their lawyer about the treatment they have received from the police (without any police
officers being present);
• make their own assessment as to whether the suspect has been treated fairly and the evidence collected
legally;
• refer or provide information on rehabilitation services and support for suspected victims of torture;
• report complaints or other indications of ill-treatment to the appropriate investigating authority, and bring any
concerns to the attention of the judge at the appropriate time.
Effective training on the relevant domestic laws and
international standards, and on the professional skills
necessary to implement relevant legal provisions can
assist prosecutors to play this proactive role.
Because the State has responsibility for the treatment of
individuals in its custody, once an individual has made a
credible complaint about torture or other ill-treatment,
the State/prosecution bears the burden of proof in
establishing that evidence was not obtained by torture.
Prosecutors and judges (see next) share a responsibility
in this regard, also in respect of referring the allegation of
torture or ill-treatment for investigation.
“
Prosecutors shall, …examine proposed
evidence to ascertain if it has been lawfully
or constitutionally obtained; [and] refuse
to use evidence reasonably believed to
have been obtained through recourse to
unlawful methods which constitute a grave
violation of the suspect’s human rights
and particularly methods which constitute
torture or cruel treatment…”
International Association of Prosecutors’
Standards of Professional Responsibility and
Statement of the Essential Duties and Rights of
Prosecutors (1999) (Article 4.3)
Good State practices in handling complaints and
investigations of torture can be found in CTI’s UNCAT Implementation Tool No. 7/2019, Procedures and
mechanisms to handle complaints of and investigations into torture or other ill-treatment.
TOOL: Non-admission of evidence obtained by torture and ill-treatment
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