Obstacles to legal investigations into torture

In investigating torture, several obstacles can impede the victim’s possibilities to access justice: 

• Absence of the definition of torture as a criminal offence in national legislation can be a reason for judges to refrain from trying alleged perpetrators. Instead of applying international law, cases are dismissed and the perpetrators go unpunished; 
• Significant discretion or hesitation by the authorities to open an investigation or raise allegations, as torture is a crime which per definitionem has been committed by an agent of the State; 
• Prosecution of perpetrators can be impeded by extensive application of immunities [15]; 
• Application of statutes of limitation contrary to international law; 
• Limitation on access to information or limited access to the crime scene for those trying to secure or investigate evidence; 
• Prosecutor’s office comprised of a limited pool of forensic experts allowed to give evidence, which restricts victims’ access to independent forensic experts;
• Challenges in gathering evidence if the crime has been committed in another State;
• Hesitance of third States to extradite alleged perpetrators of torture; 
• Hesitance of courts to apply universal jurisdiction and prosecute extraterritorial cases in application of the “principle of subsidiarity”, giving priority to the prosecution by the territorial courts.

To enable proper investigation and prosecution of cases of torture, States must be held responsible to the obligations they have committed to when signing and ratifying the relevant treaties [16].

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15. See Fostering a European Approach to Accountability for Genocide, Crimes against humanity, War crimes and Torture – Extraterritorial Jurisdiction and the European Union, REDRESS and FIDH, Final Report, April 2007, II.5, p.16 ss. 

16. See Scilingo case, Spain National Court, Criminal Chamber, 19 April 2005, setting a precedent in the application of international criminal law in national courts.