A/69/387
taken place and identify the perpetrator. Non-State actors, such as health
professionals documenting torture and other ill-treatment are not under any such
procedural obligation and may thus, depending on the circumstances, reliably
document torture through less elaborate measures that those prescribed in the
Istanbul Protocol. Articles 12 and 13 of the Convention against Torture expressly
require prompt or immediate investigations upon receipt of complaints of torture. 7
Promptness relates not only to the time within which the investigation must be
commenced, but also to the expediency with which it is conducted. The authorities
must take whatever reasonable steps they can to secure the evidence concerning the
incident, including inter alia forensic evidence. Any deficiency in the investigation
that undermines its ability to establish the cause of injury or the person responsible
falls foul of this standard. The European Court of Huma n Rights considered that the
failure to secure the forensic evidence in a timely manner was one of the important
factors contributing to the ineffectiveness of the investigation. 8 An impartial
examination requires a competent body, independent from the alleged perpetrator,
equipped with full investigative powers in order to secure evidence and establish the
facts so that its findings can be brought before the authorities responsible for
criminal proceedings.
3.
Burden of proof of torture
25. There are different thresholds for the “proof” of torture. 9 The obligation to
investigate acts of torture is initiated by the existence of reasonable grounds.
Evidence of torture that rises to the level of “proof” in criminal proceedings (that is,
beyond a reasonable doubt) should not be necessary to establish State recognition
and responsibility for torture or to trigger the obligations that do not involve
assigning individual guilt and punishment, such as the implementation of public
policies for prevention and administrative or civil remedies, including rehabilitation.
This is important because States often claim that torture and their corresponding
obligations to address it do not exist because torture has never been “proven” in
court.
26. Regarding the exclusionary rule (for example, article 15, Convention against
Torture) and the use of torture-tainted information in judicial proceedings, in his last
report to the Human Rights Council, 10 the Special Rapporteur noted with great
concern that, in practice, the burden of proof on the admissibility of material
obtained by torture or other ill-treatment in courts seems to lie with the defendant
rather than with the State, creating a real risk that such evidence is admitted in court
because the individual is unable to prove that it was obtained under torture. Being in
detention makes it difficult to meet this burden and produce any forensic, medical
and other evidence required by the high standards of proof in criminal proceedings.
This impedes effective investigations and establishment of the facts from the start. 11
Instead, the burden is on States to prove that statements made by the accused have
been given of their own free will. 12
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7
8
9
10
11
12
14-61535
See also Human Rights Committee, General Comment 20, para. 14.
See European Court of Human Rights, Bati and Others v. Turkey (app. nos. 33097/96 and
57834/00), § 134, 2004-IV.
See Convention against Torture, arts. 3, 12 and 13.
See A/HRC/25/60, para. 31.
See A/HRC/13/39/Add.5, para. 176.
See CAT/C/30/D/219/2002; CAT/C/29/D/193/2001, para. 3.4; CAT/C/RUS/CO/4, para. 21; and
CAT/C/TGO/CO/1, para. 24.
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