52 Tainted by Torture: Examining the Use of Torture Evidence | 2018 magistrate which may be the first opportunity for the detainee to allege torture.280 A defendant will tend to raise the torture allegation because they want the practice to stop; they want to be transferred to a new location; they require medical treatment of some kind; or because they do not want the involuntary confession to be used against them. Typically, a defendant is not thinking about or actively pursuing a criminal investigation against the person(s) responsible for the torture. Nevertheless, this does not mean that a criminal investigation should not be opened. The obligation under international law to investigate torture is not contingent on the lodging of a criminal complaint. However, it is rare for an investigating magistrate, judge or prosecutor to cause a criminal investigation to be initiated unless the victim specifically requests it, even in those instances in which they have the mandate to do so. Of the countries surveyed, only in a small number of instances is there a special obligation on a competent official (including a judge, investigating magistrate or other) to take specific steps to initiate a criminal action when they learn about a possible case of torture. These tend to be civil law countries, namely Spain,281 Vietnam282 and Turkey.283 In Brazil, a judge can request a physical examination to detect possible abuse committed during the arrest, and can also open a criminal or administrative investigation in relation to the officers alleged to be responsible.284 Challenges have been noted in the practical application of these powers.285 The Brazilian Ministry of Justice has itself reported that there are difficulties in identifying, qualifying and determining the required course of action following an allegation of illegal use of force by the police.286 Part of the difficulty is timing. In the majority of cases, the examination is conducted after the custody hearing takes place (and only in cases where the torture report is considered valid and an investigation has been initiated) which may reduce the quality of the evidence and limit the prospects for a torture prosecution.287 In the report of its 2011 visit to Brazil, the UN Subcommittee on the Prevention of Torture strongly recommended that, when torture is suspected, judges immediately notify the prosecution so that an investigation can be initiated.288 In a case concerning Mexico, the Inter-American Court of Human Rights found that Mexico violated the prohibition on torture when the local courts, who were apprised of torture allegations, failed to cause a criminal investigation to be opened. The Court held: ‘[T]he fact that no independent investigation against the alleged perpetrators was conducted by the ordinary courts prevented any attempt to dispel or clarify the allegations of torture. Based on the foregoing, it is clear to this Court that the State failed in its duty to investigate ex officio the human rights violations committed against Messrs. Cabrera and Montiel. In the instant case, it was essential that the different domestic courts order new procedures to investigate the link between the signs found on the victims’ bodies and the acts allegedly suffered as torture’.289 However, even absent an explicit power to compel an investigation, regardless of the legal system, a judge should nonetheless be in a position to ask a defendant about treatment in detention and alert the competent investigating authorities to the existence of a potential crime. For instance, in China, the court has no power to open a criminal investigation against the alleged torturer, but in theory could report the torturer to the People’s Procuratorates who would then be required to carry out an investigation.290 Arguably, a judge has a responsibility not to ignore an allegation of torture and should report the alleged crime to the police. However, in the absence of strict regulations, how a judge decides to respond to an allegation of torture received in open court may in some countries depend on the personal disposition of that judge, or on cursory impressions formed at the time of the hearing.291 In the UN Special Rapporteur on Torture’s report following his visit to Indonesia, he noted as a problem ‘reports about nonaction of judges, prosecutors and other members of the judiciary vis-à-vis allegations of torture,’292 and recommended that: ‘Judges and prosecutors should routinely ask persons arriving from police custody how they have been treated, and if they suspect that they have been subjected to illtreatment, order an independent medical examination in accordance with the Istanbul Protocol, even in the absence of a formal complaint from the defendant’.293 Matters may be further complicated when the alleged torturers operate overseas, for instance when military personnel or members of the police are serving