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Making progress on preventing torture: development of the universal protocol

admin - October 18, 2018 - Torture, UN Convention Against Torture, The disappearing trial

Despite its absolute prohibition under international law, the use of torture as a method of obtaining confessions in investigative settings continues around the world. Evidence now clearly demonstrates that torture and ill treatment are ineffective methods of producing accurate testimony from witnesses and suspects – rather, under pressure and trauma, people under torture will frequently make mistakes of memory or confess to things they haven’t done in order to avoid more pain.

There is an alternative to coercive questioning though, and one that doesn’t require expensive technology or training: investigative interviewing. Utilizing an evidence-based, rapport-building interview technique, investigative interviewing produces more accurate testimony and preserves key relationships between law enforcement and informants that continues to pay dividends in investigations over time.

Fair Trials is on the Steering Committee of an effort, coordinated by the Anti-Torture Initiative (ATI), the Association for the Prevention of Torture (APT), and the Norwegian Centre for Human Rights (NCHR), to develop a Universal Protocol for Investigative Interviewing and Associated Safeguards, which would provide a handbook for investigators and other stakeholders, laying out the investigative interviewing method and the associated safeguards key to prevent torture in the vulnerable post-arrest hours. Many of these are the key procedural rights Fair Trials has achieved binding protections for in EU law – including the right of access to a lawyer upon arrest, to information about rights upon arrest, to interpretation and translation, and to the presumption of innocence.

On Monday, October 15, Fair Trials’ Senior Legal and Policy Officer, Rebecca Shaeffer joined  for a side-event on the margins of the UN General Assembly, on “Progress on the Development of the Universal Protocol on Investigative Interviewing and Associated Safeguards”. The panel included also Nils Melzer, Special Rapporteur on Torture, Jens Modvig from the Committee against Torture, Malcom Evans from the Subcommittee on the Prevention of Torture, and Gisle Kvanvig from NCHR, and was moderated by Andrew Gilmour, Assistant Secretary-General for Human Rights. Rebecca represented the Steering Committee on the panel, and presented the progress currently being made on the drafting of the Protocol, while other panellists advocated for its adoption by states and its use as a benchmark in states obligations under the United Nations Convention against Torture (UNCAT).

Fair Trials has increasingly turned its attention to the matrix between torture and criminal procedure. Our recent report with Redress, “Tainted by Torture”, examines the admissibility of evidence tainted by torture in its collection. The report analyses existing legislation in respect of 10 countries’ laws on the exclusion of such torture-tainted evidence, finding that the rule is poorly administered in many jurisdictions – and doesn’t exist at all in others.  

Besides respect for the absolute prohibition on torture, the Universal Protocol also aims to move investigative bodies and justice systems away from “confession-based” convictions. Too many judges around the world are content to convict suspects based on their confession alone, with no corroborating evidence, incentivising coercive interrogations. The need to move away from coercive policing practices and confession-based justice is gaining traction at an international level as a comprehensive and proactive approach to torture prevention and good governance.

Fair Trials has examined new forms of confession-based justice that threaten fair trial rights and work in tandem with torture and ill treatment. Our report “The Disappearing Trial” from 2017 documents the global spread of trial waiver systems and highlights the risks these pose to procedural rights. In relation to torture,  waivers of trial rights may operate as a double-edged sword – they may offer an option instead of torture, but can also be used to hide gross human rights abuses.

Fair Trials’ Senior Legal and Policy Officer Rebecca Shaeffer said: “Confession-based justice systems operate around the world and continue to incentivise coercive investigation techniques, including torture and ill-treatment, despite their absolute prohibition. Deep cultural change in the form of a transition to investigative interviewing, together with better protection of procedural safeguards including the exclusion of torture-tainted evidence are absolutely key to eradicating torture and strengthening public faith justice systems and the rule of law.”

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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