ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
documenting and reporting signs of torture or other ill-treatment. The experts noted the link to Rule
57(2) which calls for protection from reprisals in the context of complaints.
This may imply the temporary transfer of any relevant officer to a different part of the facility, or
even to a different prison. The experts noted that it may be necessary to move the alleged victim
and others (if reprisals are feared on a larger scale); however, it was cautioned that this will usually
have the effect of punishing the victim and experts noted risks of retaliation during the transfer/
transport itself which need to be prevented. The UN Special Rapporteur on Torture recommended
to take into account witness protection programmes ‘that fully cover persons with a previous
criminal record and staff’.498
Both the UN Special Rapporteur on Torture and the UN Committee against Torture have
recommended that those potentially implicated in deaths, injuries or torture/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’.499
The experts noted that the modalities of the enquiry by the external, independent body go beyond
the remit of the SMR, and referred to the Principles on Effective Investigation and the Principles
on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions
and the UN Istanbul Protocol (1999) Manual on the Effective Investigation and Documentation of
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment500 for guidance. The
experts also recommended the Council of Europe document, Effective investigation of ill-treatment
– Guidelines on European standards, for further guidance.501
Impediments documented with regard to the investigation of cases of torture included fear of
reprisals which impede the ability to gather evidence, lack of effective legal representation for
victims, failure to follow a protocol of investigation, lack of a systematic approach to investigations
and lack of enforcement of penalties handed down where violations were established.502
Outcome of investigations
Principle 34 of the UN Body of Principles503 stipulates that: ‘[t]he findings of such inquiry [into the
cause of death or disappearance] or a report thereon shall be made available upon request, unless
doing so would jeopardize an ongoing criminal investigation’.
The experts pointed to the view of the UN Committee against Torture that the family of the
deceased should be informed of the outcome of an investigation.504 They shared the assessment
of the Special Rapporteur on Torture that information related to the circumstances surrounding
Special Rapporteur on Torture report 2013, A/68/295, para. 66, with reference to Commission on Human Rights, 60th
Session, Torture and other cruel, inhuman or degrading treatment or punishment: Report of the Special Rapporteur,
Theo van Boven, 23 December 2003, E/CN.4/2004/56, para. 40.
498
Special Rapporteur on Torture report 2013, A/68/295, para. 66, referring to Principle 3(b) of the Principles on Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment). CAT
SMR revision observations, CAT/C/51/4, para. 44.
499
See respective recommendation in IACHR Report on Persons Deprived of Liberty, para. 518.
500
Council of Europe, Effective investigation of ill-treatment: Guidelines on European standards, Strasbourg, 2009.
501
SPT Report on visit to Argentina, CAT/OP/ARG/1, para. 104.
502
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by General
Assembly resolution 43/173 of 9 December 1988.
503
CAT SMR revision observations, CAT/C/51/4, para. 42.
504
Penal Reform International and the Essex Human Rights Centre
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