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Legal investigations
Legal professionals play a crucial role in the fight against impunity and in enabling torture victims to gain access to justice. In order for a torture victim to get recognition in a court proceeding and to be awarded adequate reparation certain steps have to be followed, rules of procedures respected and particularities of torture cases taken into account.
There are different possibilities to initiate legal proceedings. There are considerable differences in the applicable rules of procedure and of evidence - including burden and standard of proof - depending on the type of claims brought forward, i.e., if it is an administrative, civil or criminal claim. In criminal cases, the state brings the suit, sometimes upon request of a plaintiff, and must show guilt beyond a reasonable doubt, while in civil cases the plaintiff brings the suit directly and must only show the defendant is liable by a preponderance of evidence. The framework of the court cases furthermore depends on the specific legal system, i.e., common law or civil law or hybrid system, extracting the rules from a range of statutes and/or case law or cases before an international adjudicator like the International Criminal Court (ICC).
Gathering of evidence
In all court proceedings, however, evidence needs to be produced in order to support the allegations made. The gathering of evidence usually takes place through a legal investigation with the aim to uncover the commission of the alleged acts and identify the offender.
Generally speaking, investigation requires thorough and systematic inquiry. Legal investigations are conducted in preparation or support of legal proceedings. The aim is to gather the necessary elements and facts of the case in order to reconstruct the circumstances of the case that will allow the court to pass a judgment with full knowledge and deliberation.
Before addressing the questions of who, how and what concerning the investigation, it needs to be emphasised that investigations into torture are particularly sensitive. One needs to be aware of the particular vulnerable position of the victim and witnesses. Re-traumatisation of victims has to be avoided: recurrence and intimidation has to be prevented. Witness protection is of utmost importance and where appropriate victims and witnesses should be placed in special witness protection programmes [1]. In every kind of investigation and evidence gathering, the security of a person should have priority!
Keeping in mind the differences in various legal systems, the below considerations are meant to provide an overview of general procedural issues to be considered in legal investigations and evidence gathering.
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1. Istanbul Protocol, Chapter III C. (d), Safety of witnesses, p. 20
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