A/68/295
64. Although article 12 of the Convention against Torture does not exclude the
possibility of the investigation being carried out by prison administration, in most
cases internal investigations lack transparency and are marred by a conflict of
interest. Allegations of torture and other ill-treatment should be investigated by an
external investigative body, independent from those implicated in the allegation and
with no institutional or hierarchical connection between the investigators and the
alleged perpetrators. 11
65. It is important that the Rules provide detailed guidance on the purpose,
modalities and overall parameters of effective investigations and documentation of
torture and other ill-treatment, as reflected in the Principles on Effective Investigation
and the Principles on the Effective Prevention and Investigation of Extra-legal,
Arbitrary and Summary Executions. More specifically, Rule 44 should, at a minimum,
require the administration to ensure that, notwithstanding internal investigations, all
complaints or reports of torture or other ill-treatment, including prison violence,
threats and intimidation, as well as incidents of deaths in custody (irrespective of their
cause) or shortly following release, are transmitted without screening to an external
independent body for investigation. In the event that the investigation confirms
allegations of torture or other ill-treatment, the victims should be guaranteed both
rehabilitation and redress (see general comment No. 3 of the Committee against
Torture). There should be protocols and guidelines for the prison administration about
cooperating with the authorities by not obstructing the investigation and by collecting
and preserving evidence. Even in the absence of an express complaint (including in
the case of withdrawal of a complaint, provided that the security of the complainant is
guaranteed), an investigation shall be undertaken if there are other indications that
torture or other ill-treatment might have occurred (see Principles on the Effective
Investigation, principle 2). Furthermore, information related to the circumstances
surrounding the death of a person in custody should be made publicly accessible,
considering that public scrutiny outweighs the right to privacy unless otherwise
justified. The prison administration should systematically identify and collect the
patterns of deaths for further examination by independent bodies.
66. The Rules should ensure that those potentially implicated in torture or other
ill-treatment should immediately and for the duration of the investigation be
suspended, at a minimum, from any duty involving access to detainees or prisoners
because of the risk that they might undermine or obstruct investigations (see
Principles on Effective Investigation, principle 3 (b)). Serious consideration should
also be given to the creation of witness protection programmes that fully cover
persons with a previous criminal record and staff (see E/CN.4/2004/56, para. 40).
Protection and special needs of vulnerable groups deprived of their liberty
67. Ensuring non-discrimination and special protection for vulnerable groups and
individuals is a critical component of the obligation to prevent torture and other
ill-treatment. The Special Rapporteur recognizes that while all people deprived of
their liberty are vulnerable to neglect, abuse and mistreatment, for certain
marginalized groups that vulnerability is heightened. These groups include, in
addition to those identified in Rule 6 (see para. 28 above), particular categories of
detainees or prisoners (e.g. sex workers, drug users, lesbian, gay, bisexual,
transgender and intersex persons, prisoners who have tuberculosis or terminal
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11
13-42285
Jordan v. United Kingdom, application No. 24746/94, para. 106.
17/23
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