A/69/387
addition, forensic evaluation of victims contributes to the assessment of acute and
long-term medical and psychological care and rehabilitation they require. Lastly,
medical and psychological documentation can help monitor and collect statistics on
torture and other ill-treatment so that official bodies and the general public are
aware of torture practices in order to develop appropriate public policies to prevent
torture and encourage reform.
1.
Legal procedural framework
48. Forensic evidence is a type of expert evidence. The purpose of expert evidence
is to provide the court with information based on scientific methods, the
interpretation of which is outside the experience and specialized knowledge of a
court. It is the task of the court to decide whether there is a need for expert
evidence, to order its procurement and to establish the compet ency of each expert
witness. Accordingly, where forensic evidence forms only part of the total factual
matrix, as in most cases, the issue for a decision-maker in a criminal trial is to
determine what use can and should be made of that forensic evidence.
Standards for assessment of documentary evidence
49. Regarding the probative value of documentary evidence, a judicial body
typically examines its relevance and reliability. Once a minimum threshold of
expertise is established, the expert testimony is admissible and the Court will assess
whether the evidence is persuasive. The European Court of Human Rights has
specifically focused on the promptness of the examination, its level of detail, and
whether it could be relied on as being collected independentl y. 27 This entails the
promptness and the surrounding circumstances of the examination, free access to
medical records, and no interference by police or other State officials with the work
or the independence of the medical examiner. The Special Rapporteur n otes that it is
the exception that victims are examined shortly after the torture actually happened.
More commonly, while the victim is in custody, the State often is the only one in a
position to undertake examinations and in these circumstances, examinat ions are
frequently conducted that are neither independent nor impartial or victims are
examined only after alleged victims manage to get released from detention and some
even flee the country, in which case the lesions have healed, leaving no scars or onl y
a few. Therefore, it is important for the courts to consider in assessing the reliability
and relevance of documentary evidence the circumstances in which procurement of
that evidence may have been affected or delayed.
Standards for assessment of expert opinions
50. In addition, criterion for considering an expert opinion as evidence is that the
person providing the opinion is in fact an expert. If the author is accepted as an
expert, the probative value of the opinion will depend on the degree of cer tainty that
the court attaches to the opinion in comparison to the existence of supporting or
__________________
27
14-61535
See European Court of Human Rights, Akkoc v. Turkey (app. nos. 22947/93 and 22948/93),
10 October 2000, para. 118; see also European Court of Human Rights, Böke and Kandemir v.
Turkey (app. nos. 71912/01, 26968/02 and 36397/03), 10 March 2009, para. 56; and Asger
Kjaerum, “Desk study: combating torture with medical evidence”, TORTURE Journal on
Rehabilitation of Torture Victims and Prevention of Torture, vol. 20, no. 3, 2010.
15/23
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents