Securing evidence

While health personnel and sometimes also lawyers might not play an active role in the process of legal investigation, they can have a crucial role in securing evidence. As traces of the crime are often difficult to discover and to preserve, thorough and timely preservation is essential.

In the context of gathering evidence for proceeding with cases of torture, the following considerations should be kept in mind for legal as well as for medical personnel. It is important that: 

• All kinds of evidence of injuries sustained are secured (medical records, testimonies, photos);
• A connection is established between the State and the act of torture or ill-treatment (either that the victim was in the custody of, or held with acquiescence of, the authorities or that the authorities failed to protect the victim);
• Supporting evidence is collected in order to prove an allegation. This supporting evidence can be a medical report, a psychological evaluation, victim statement, witness statement, expert testimonies, other third party evidence and objective reports. It has to be noted that medical evidence is supportive but rarely conclusive [9].

Evidence can be secured through:

• Interviews: an interview consists of receiving oral information from the alleged victim and/or other witnesses. The aim is to get a coherent account of the incident while respecting the needs and the security of the interviewed person. Before starting an interview informed consent of the interviewee is needed [10]. It is important to take the cultural background of the interviewee into account. In order for lawyers to ask the right questions they have to understand the physical and psychological effects of torture on victims. Consultation and cooperation with medical personnel proves crucial, as outlined in the Practical Guide to the Istanbul Protocol for Lawyers, Part I.A. Chapter IV of the Istanbul Protocol as well as the Essex Torture Reporting Handbook Part II.3 provide a detailed section on how to conduct an interview. 
• Witness statements: a written statement signed by the victim or witness might reinforce the credibility of the allegation. The statement should also be signed by the person who has taken the statement and if possible by another witness[11]. 
• Expert witness: expert witnesses shall convince the court of the scientific truth concerning the allegations made. 
• Medical reports: medical reports can be a tool to establish the facts[12] or to confirm a possible relationship between the physical findings and the ill-treatment [13].

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9. See Istanbul Protocol Chapter III. C (f) p.21 and The Torture Reporting Handbook, Camille Giffard, Human Rights Centre, University of Essex, Part II.4 and II.5.
10. Istanbul Protocol, Chapter III, C.2, p.19.
11. See The Torture Reporting Handbook, Camille Giffard, Human Rights Centre, University of Essex, Feb. 2000, Part II.5.2.
12. ECtHR Karakaffl and Yefflilirmak v. Turkey, 28 June 2005, final version, 28 September 2005, Appl.No. 43925/98.