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A practical guide to the Istanbul Protocol – for lawyers
cepted in international and national jurisprudence.49
If the accused complains that his or her confession has been extracted in this way, in the
course of a criminal trial against him or her,
the judge should order a hearing to determine the issue.
As to the standard of proof, the Special Rapporteur has recommended that “where allegations of torture or ill-treatment are raised
by a defendant during trial, the burden of
proof should shift to the prosecution to prove
beyond reasonable doubt that the confession was not obtained by unlawful means,
50
including torture and ill-treatment.”
Lawyers may object to the use of confessions
or statements extracted under torture in the
following ways:
• Object to the use of all evidence
obtained under torture, including third-party evidence, including evidence obtained by security services from individuals other
than the accused
• Where their client alleges he/she
has made a confession or statement under torture, call on the
judge to put it to the prosecution to prove beyond reasonable
doubt that no torture or ill-treatment took place at the time of the
confession or statement
• Where the prosecution is unable
to discharge this burden, request
the judge to refuse to allow the
confession or any statement to
be used as evidence.
III. INTERNATIONAL STANDARDS ON EFFECTIVE INVESTIGATION OF TORTURE ALLEGATIONS
The obligation on governments to carry out
effective investigations is firmly established
in international law. Whenever there are indications that torture might have been committed, governments are obliged to automatically undertake an effective investigation,
even without a formal complaint triggering
it.51 Accordingly, the Istanbul Protocol provides that, “even in the absence of an express complaint, an investigation should
be undertaken if there are other indications
that torture or ill-treatment might have occurred”.
The obligation on governments to conduct
an effective investigation is a corollary to
the right of victims to an effective remedy to
complain of acts of torture. This includes the
right to:
i. Be informed about available remedies
and complaints procedures52
ii. Have access to lawyers, physicians and
family members53 and, in the case of
foreign nationals, consular representatives54
iii. Lodge complaints with appropriate bodies in a confidential manner55 in any form
and without delay
iv. Have access to external bodies, such as
the judiciary56 and visiting bodies, including the right to communicate freely
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