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at all times, including during the investigation of serious crimes and in situations of
armed conflict, and is complemented by a range of attendant standards and
procedural safeguards.
7.
Nevertheless, the sophisticated normative frameworks in place often do not
translate into a reduction in practices of torture, ill-treatment or coercion during
questioning, which are frequently used by State agents worldwide during law
enforcement investigations of common and serious criminal offences, during
military and intelligence operations and during armed conflict.
8.
Persons interviewed by authorities during investigations may be confronted
with the entire repressive machinery of society. Questioning, in particular of
suspects, is inherently associated with risks of intimidation, coercion and
mistreatment. The risks are heightened for vulnerable persons and for persons
questioned in detention. This holds particularly true during apprehension and the
early stages of custody, when the authorities exerting control over the fact and
conditions of detention and conducting the investigation are the same.
9.
The persistent use of unlawful and improper interviewing practices is triggered
by a range of local factors, including the erroneous assumption that mistreatment
and coercion are necessary to obtain confessions or elicit information. The
misconception that torture is a “necessary evil” is especially prevalent during
interviews relating to organized crime and national security offences. In the
anti-terrorism context, Governments resort to “ticking bomb scenarios” in attempts
to justify the use of abusive and unlawful interviewing practices, implicitly
challenging the absolute and non-derogable nature of the torture prohibition under
any circumstances. While some have sought to proffer faulty legal interpretations to
support the use of torture, a more common policy option has been to refute that
certain practices amount to torture or ill-treatment under international law.
10. In many countries, detainees are mistreated during investigations of common
crimes. Pressure from politicians, supervisors, judges and prosecutors to solve high
volumes of cases and inadequate measures of police performance, including systems
of appraisal focusing only on the number of crimes “solved” or convictions, create
perverse incentives for arrests and mistreatment. A lack of forensic methodology,
training in modern criminal investigation techniques and equipment often also
creates the perception that torture, ill-treatment and coercion are the easiest and
swiftest ways to elicit confessions or other information.
11. Serious concerns arise in legal systems that place a premium on confessions to
establish criminal responsibility. While the admission and realization of guilt can be
significant to offenders’ rehabilitation and reintegration, the ability to convict
suspects solely on the basis of confessions without further corroborating evidence
encourages the use of physical or psychological mistreatment or coercion. Similarly,
legal systems that de jure establish that extrajudicial confessions are probati ve of
guilt only if corroborated by other evidence nevertheless provide de facto incentives
for mistreatment.
12. In some jurisdictions, structural and resource deficiencies in the criminal
justice system create conditions conducive to the proliferation of mistreatment.
When Governments do not invest sufficient resources in the administration of
justice, judges, prosecutors and law enforcement officials lack the necessary
training and are overworked, underpaid and more prone to corruption (see
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