3. INCIDENT PREVENTION AND RESPONSE
3.3. INVESTIGATIONS
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There is a specific obligation for states to investigate deaths, serious injuries and
disappearances that occur in the context of detention. Prison authorities need to launch an
internal inquiry in such cases. However, even where this is the case, impartial and thorough
investigations need to also be carried out by independent bodies, given conflicts of interest.204
The Mandela Rules do not include any detailed guidance on such investigations because
the Rules only provide guidance for prison administrations and staff, and because other
international standards deal with the conduct of independent investigations in such
contexts.205 Rather, the Mandela Rules focus on the obligations of prison administrations
and prison staff if a death, disappearance or serious injury occurs, or if suspicion of torture
or other ill‑treatment arises in their facility.
In all cases, the state bears the burden of evidentiary proof to rebut the presumption
of its responsibility for violations of the right to life and for torture and ill‑treatment of those
in its custody.206
RELEVANT RULES: INVESTIGATIONS
Rule 8(f):
The following information shall be entered in the
prisoner file management system in the course
of imprisonment, where applicable: (...)
(f) Information on the circumstances and causes
Rule 71:
1. Notwithstanding the initiation of an internal
investigation, the prison director shall report, without
delay, any custodial death, disappearance or serious
injury to a judicial or other competent authority that is
independent of the prison administration and mandated
to conduct prompt, impartial and effective investigations
204 205 206
2. The obligation in paragraph 1 of this rule shall equally
apply whenever there are reasonable grounds to believe
that an act of torture or other cruel, inhuman or
degrading treatment or punishment has been committed
in prison, irrespective of whether a formal complaint has
been received.
3
of any injuries or death and, in the case of the latter,
the destination of the remains.
into the circumstances and causes of such cases.
The prison administration shall fully cooperate with that
authority and ensure that all evidence is preserved.
3. Whenever there are reasonable grounds to believe
that an act referred to in paragraph 2 of this rule has
been committed, steps shall be taken immediately to
ensure that all potentially implicated persons have no
involvement in the investigation and no contact with
the witnesses, the victim or the victim’s family.
WHY IS IT IMPORTANT?
Accountability and identification of institutional shortcomings
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Investigations into deaths, disappearances and serious injuries are crucial to determine
the facts of individual cases and to hold anyone responsible to account. Institutions can also
learn from the findings of such investigations and improve policy and practice accordingly.
Even where the investigation reveals no serious failures or shortcomings in particular facilities,
the results of investigations can help inform and improve existing policy and practice in other
facilities, or to make system-wide improvements.
204. The UN Special Rapporteur on torture has clarified that, in cases of torture or other ill‑treatment the investigative body must be “independent
from those implicated in the allegation and with no institutional or hierarchical connection between the investigators and the alleged perpetrators”.
See: Report of the Special Rapporteur on torture, A/68/295, op. cit. note 57, para. 64.
205. Detailed guidance on the modalities of such investigations can be found in the UN Principles on Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly resolution 55/89, 4 December 2000; and the Principles on the
Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, Economic and Social Council resolution 1989/65, 24 May
1989; the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(‘Istanbul Protocol’), OHCHR, Professional Training series No. 8/Rev.1 (2004); the Minnesota Protocol on the Investigation of Potentially Unlawful
Death: the Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions, 2016;
and the Council of Europe, Effective investigation of ill‑treatment Guidelines on European standards, second edition 2014.
206. Report of the Special Rapporteur on torture, A/68/295, op. cit. note 57, para. 62.
Guidance document on the Nelson Mandela Rules
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