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A practical guide to the Istanbul Protocol – for lawyers
IV. INTERNATIONAL STANDARDS ON PROSECUTION OF
ALLEGED PERPETRATORS OF TORTURE AND PUNISHMENT
OF THOSE RESPONSIBLE
International law clearly establishes the obligation on Governments to prosecute those
accused of torture. This obligation exists
regardless of where the crime was committed, the nationality of the victim or alleged
perpetrator.146 As established in the Istanbul
Protocol, “States are required under international law to investigate reported incidents
of torture promptly and impartially. Where
evidence warrants it, a State in whose territory a person alleged to have committed or
participated in torture is present, must either extradite the alleged perpetrator to another State that has competent jurisdiction
or submit the case to its own competent authorities for the purpose of prosecution under national or local criminal laws.”147 Such
prosecution is based on the exercise of what
is known as universal jurisdiction.
1. GENERAL PRINCIPLES ON
THE PROSECUTION OF ALLEGED
TORTURERS
International law provides few, if any, exceptions to the obligation to investigate with
a view to prosecuting alleged perpetrators
of torture.148 It is generally agreed that there
should be no criminal immunity for persons
accused of perpetrating torture,149 and that
amnesties cannot be accorded to perpetrators of torture or otherwise prevent victims
from obtaining an effective remedy.150 The
Special Rapporteur on Torture has stated
that “A person in respect of whom there is
credible evidence of responsibility for torture or severe maltreatment should be tried
and, if found guilty, punished. Legal provisions granting exemptions from criminal responsibility for torturers, such as amnesties,
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indemnity laws etc., should be abrogated.”
The United Nations Secretary General has
also stressed the obligation to prosecute
when violations of torture are concerned,
as enshrined in the Vienna Declaration and
Programme of Action.152
Any punishment imposed on those responsible for torture should reflect the seriousness of the crime.153
The Istanbul Protocol establishes that States
are obliged to publish the results of investigations and are also obliged to ensure that
the alleged offender or offenders are subject
to criminal proceedings if an investigation
establishes that an act of torture appears
to have been committed. The UN Declaration of Basic Principles for Victims of Crime
and Abuse of Power154 calls for judicial and
administrative processes to be responsive to
the needs of victims – for example, by keeping them informed and allowing their views
and concerns to be considered at appropriate stages of the proceedings. The Europe155
an Court of Human Rights and the InterAmerican Court of Human Rights156 have
equally found a duty of States to inform the
complainants about the outcome of investigations and, the Inter-American Court, to
publish the results of an investigation. Both
the Committee against Torture and the Human Rights Committee have called on State
Parties to publish information relating to the
number and nature of complaints, investigations undertaken, and steps taken following
such investigations, including punishment
of the perpetrators.157 In its General Comment 20, the Human Rights Committee has
moreover urged States to provide specific
information on the remedies available to
victims of maltreatment and the procedure
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