E/CN.4/2003/68
page 12
for the Protection of All Persons under Any Form of Detention or Imprisonment, prisoners
should be segregated according to gender, age and seriousness of the crime, alleged/committed;
first-time prisoners should be segregated from repeat offenders and pre-trial detainees from
convicted prisoners;
(k)
When a detainee or relative or lawyer lodges a torture complaint, an inquiry
should always take place and, unless the allegation is manifestly ill-founded, the public officials
involved should be suspended from their duties pending the outcome of the investigation and any
subsequent legal or disciplinary proceedings. Where allegations of torture or other forms of
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, including torture and similar ill-treatment. Serious consideration should also be given to
the creation of witness protection programmes for witnesses to incidents of torture and similar
ill-treatment which ought to extend fully to cover persons with a previous criminal record. In
cases where current inmates are at risk, they ought to be transferred to another detention facility
where special measures for their security should be taken. A complaint that is determined to be
well founded should result in compensation being paid to the victim or relatives. In all cases of
death occurring in custody or shortly after release, an inquiry should be held by judicial or other
impartial authorities. 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 amnesty laws
(including laws in the name of national reconciliation or the consolidation of democracy and
peace), indemnity laws, etc. should be abrogated. If torture has occurred in an official place of
detention, the official in charge of that place should be disciplined or punished. Military
tribunals should not be used to try persons accused of torture. Independent national authorities,
such as a national commission or ombudsman with investigatory and/or prosecutorial powers,
should be established to receive and to investigate complaints. Complaints about torture should
be dealt with immediately and should be investigated by an independent authority with no
connection to that which is investigating or prosecuting the case against the alleged victim.
Furthermore, the forensic medical services should be under judicial or another independent
authority, not under the same governmental authority as the police and the penitentiary system.
Public forensic medical services should not have a monopoly on expert forensic evidence for
judicial purposes. In that context, countries should be guided by the Principles on the effective
investigation and documentation of torture and other cruel, inhuman or degrading treatment or
punishment (the Istanbul Principles) as a useful tool in the effort to combat torture;
(l)
Legislation should be enacted to ensure that the victim of an act of torture obtains
redress and fair and adequate compensation, including the means for the fullest rehabilitation
possible. Adequate, effective and prompt reparation proportionate to the gravity of the violation
and the physical and mental harm suffered should include the following elements: restitution,
compensation, rehabilitation (including medical and psychological care as well as legal and
social services), and satisfaction and guarantees of non-repetition. Such legislation should also
provide that a victim who has suffered violence or trauma should benefit from special
consideration and care to avoid his or her retraumatization in the course of legal and
administrative procedures designed to provide justice and reparation;
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