Identifying and reporting ill-treatmentPrinciples of the Istanbul Protocol

Hans Draminsky Petersen, MD,

Member of the SPT & the IMAP

The Istanbul Protocol, 2004Manual on the Effective Investigation and Documentation of Torture & CIDT

• International and regional legal standards, instruments and bodies

• Ethical codes, incl. medical:– Compassionate care, moral independence, respect dignity,

– Informed consent,

– Confidentiality

– Dual obligations: Best interest of the patient vs. duty to society /justice:

• Legal fundament, no contravention of medical norms, do no harm, • Inform the person! Keep record!• Seek advise and support, e.g. with the Medical Association

• Legal investigation of torture– State responsibility and obligation

• Independent, prompt and effective, incl. expert health professionals

The Istanbul Protocol, 2004Manual on the Effective Investigation and Documentation of Torture & CIDT

• The interview in private: – History of social background and pre-detention health

– Detention and abuse

– Circumstances of detention, place and conditions

– Methods of torture and ill-treatment

– Immediate reactions and acute symptoms

– Sub-acute and chronic symptoms

• The physical examination

• The psychological assessment

The description of the individual lesion

• Description:– Localisation and orientation

– Single or in groups

– Size

– Shape

– Border

– Colour

– Surface

• Classification:• Bruises, lacerations, incisions /stabs, abrasions,

Para-clinical investigations:

– Ultrasound, MR, CT, bone scintigraphy

– Biopsy of the skin: – Experimental– invasive procedure, requires injection of local anaesthesia, leaves marks– What to do with a negative result

– Muscular enzymes,

• even without visible lesions and

• with forced physical exercise

Assessment of the individual lesion as to age and origin

• Colour (yellow* /red**), crust, pigmentation, etc

• Region of the body, shape, surface, etc

– “Not consistent” = not caused by the trauma described

– “Consistent with” = non-specific, may have been caused as stated

– “Highly consistent” = may have been caused as stated, and there are few other possible causes

– “Typical of” = appearance usually found with this type of trauma, but there are other possible causes

– “Diagnostic for” = could not have been caused in other way than stated

• Could be commented, e.g. – Localised in body regions often exposed to everyday traumas– Remarkable shapes of lesions, evt multiplicity and in groups

• *If yellow colour is present: the age of the lesion is at least 18 hours• **If red only: age not more than 48 hours

Psychological consequences of torture

– Re-experiences of the traumatic event, awake and at sleep– Avoidance of thoughts and activities – incl. talking about

torture– Hyper-arousal:

• Sleep disturbances

• Irritability and outburst of anger, startled responses

• Impaired concentration and memory

– Depression– Anxiety– Damaged self-concept and foreshortened future– Sexual dysfunction and somatic symptoms– Substance abuse

The psychological assessment

• Social background• Medical and psychiatric history, incl. substance use and abuse• History of detention, torture and ill-treatment• Current psychological complaints• Current medication and substance abuse• Post-torture history, social situation and functioning, stress factors

• Assessment of mental status

• Scales and questionnaires?

Questions for the psychological assessmentThe Istanbul Protocol

• Are psychological findings consistent with alleged torture?• Are psychological findings expected and typical for extreme

stress in the given context?• Given the fluctuating course of trauma related mental disorders, what is the time

frame in relation to the torture event?• Where is the individual in the course of recovery?*

• What are the coexisting stressors impinging on the individual (ongoing persecution, migration, exile?

• What impact do these issues have on the individual?**

• Which physical conditions contribute to the clinical picture? Head injuries?

• Does the clinical picture suggest false allegations? ***

Some reservations /caveats

• The torture situation is extremely complex and designed to cause more fear and confusion. Observations may be perceived wrongly.

• Impaired concentration and memory are common with survivors *• The detainee may have lost consciousness**• Individual elements of the event may be overridden by others

• The survivor may not want to talk about all details***:– It may be too painful– It may cause harm to others– may think that seemingly absurd details shall be inferred as fabrications– May fear that torture / rape shall cause stigmatisation or ostracism– +

– May explain some discrepancies in statements given to different interviewers

Photos

• Identical scarification of nails in two individuals,

one alleging torture as origin, the other refusing torture

The overall conclusion of the expert examination

• The degree of consistency between the:

– History of torture /ill-treatment - Knowledge of local practices /HR record– The physical symptoms, immediate, intermediate and chronic– The observed physical evidence (or lack of evidence) – The psychological symptoms and signs– (diagnostic tests)

• Suggestion for classification:

– Beyond any reasonable doubt– High, no reservations and significant corroborative clinical findings– Moderate, some reservations / no or few unspecific corroborative clinical

findings– Low, many reservations and no corroborative clinical findings

Substantiation of the overall conclusion

• Is the history of torture may be qualified as e.g. being detailed and complex and consistent with the general pattern (in the region /country /institution in question) known from other sources (named)

• Acute, intermediate and chronic physical and psychological symptoms may be qualified as commonly seen /typical after torture as alleged

• The specificity of findings should be mentioned: “Typical”, “diagnostic”

• If inconsistencies are deemed insignificant, the reasons should be given

• The absence of torture related scars does not contradict the consistency of torture considering the reported methods of torture

• Do not be too cocksure, neither in assessment of lesions, nor in rejection of allegations

The assessment of the generalist, the doctor in the detention centre, a gatekeepers

• Informed consent 1-2

• Brief history of ill-treatment• Physical and psychological symptoms• Physical signs and psychological observations• Opinion as to consistency• Identification of health needs, • Start treatment /refer for further examination /treatment, if appropr

• Informed consent 3

• Report to higher authority, incl. the director, who must– protect the complainant against reprisals and – prevent recurrence– Refer to expert examination

The assessment of the generalist

• A preliminary medical assessment

• The basis for referral to expert examination

• Often done shortly after ill-treatment, i.e. lesions are still present• While the expert examination may be delayed considerably

• The document of the doctor should be part of the case file

• Requires high quality, often great space for improvement

Study groups

1991-1994 2000-2005

Number of persons 100 124

Number of documents 318 425

Allegations of ill-treatment

1991-1995 2000-2005

Number of persons 46 (46%) 76 (59%)

P>0.05

Number of documents 77 (24%) 127 (30%)

Allegations of ill-treatmentNumber of documents = examinations

1991-94N=77

2000-5N=127

Physical, incl.beatings 78% 52%

Asphyxiation, a plastic bag 31% 21%

Asphyxiation, water 4% 0

Electrical shocks 8% 2%

Forcible physical exercise 6% 43% P<0,0001

Psychological, incl. threats 17% 48% P<0,0005

Lacking information

1991-94

N=318

2000-05

N=425

Formal structure 98% 98%

Subjection to ill-treatment 43% 40%

Relevant symptoms

Physical examination

53%

36%

34%

49%

P<0.0001

P<o.0005

Overall conclusion on allegations of ill-treatment

96% 100%

Conclusions on age and origin of described lesions

74% 36%

Reporting alleged ill-treatment to higher authority

100% 100%

Quality of conclusions on age and origin of lesions

1991-1991

N=31

2000-2005

N=64

Acceptable 3% 39%

P<0.001

Unacceptable 29% 25%

Insufficient premises 52% 27%

Questionable 16% 9%

Obligation to report torture and ill-treatment

• With informed consent and considering the risk of reprisals

• Report to– The director of the institution– Ministry, register

• Refer to independent expert examination

• Inform detainee about the possibility to address a complaint body or the Ombudsman

• Directors obligation:– Initiate inquiry by independent body or General Prosecutor

Hierarchy of responsibility

GovernmentMinistries of

Interior, Justice, Health

Director ofinstitution

Police officers The doctorsVisiting

mechanisms

Referral to expert examination in accordance with

the Istanbul Protocol

• The doctor in the detention centre• The doctor in the prison• The personal doctor of the person• The judge• The (doctor of the) NPM• The Ombudsman• +

• Informed consent

A prompt and impartial investigation

• .. competent authorities shall proceed a prompt and impartial investigation to whenever there is reasonable ground to believe that an act of torture has taken place (CAT § 12)

• Medical /expert documentation of torture must amount to

“reasonable ground”

Counter-reactive use of the result of the expert examination

• In case that the examiners do not positively document torture the complainant shall be prosecuted for defaming the police(e.g. Mexico, Spain)

• (Many) vulnerable persons who have been subjected to TCIDT would hardly run the risk of – another confrontation with the body that committed the torture – A sentence

• Which level of consistency in the medical assessment should be the critical cut-off point?

If allegations are not convincingly documented to be fabricated* such an approach amounts to judicial reprisals

A central register on allegations of torture

Recommended by the UN General assembly, November 11th, 2011

• All cases of alleged torture or ill-treatment, whether documented or not

• Cases of multi traumatisation

? Cases where the doctor for other reasons – e.g., presence of multiple symptoms indicating possible exposure to torture?

The central register of the ministryFighting impunity and preventing torture

• A tool to ensure that allegations of torture are investigated

• A tool to give a overview of allegations of torture with a view to identify risk institutions and risk situations - with the aim to remedy risks

• Knowing that information, documents have to be read and inferred before filing them would encourage doctors and other local actors to comply with standards set by the ministry

• The NPM and the Ombudsman should have access to the register.

• No access for police authorities

The central register of the ministry

• Hour, date and place for alleged torture• Security body implicated, if possible ID of implicated officers• Place of apprehension and detention• Nature of the allegations, forms of torture and reasons for its use• Relevant findings and conclusions of the doctor in the police station. • Most important findings and conclusions of the expert examination• Details of the body that did the criminal /disciplinary inquiry,• The result of the inquiry and any prosecution• The implementation of sanctions

Principles for the effective investigation and documentation of TCIDT

• Clarification of facts and establishment of individual and state responsibility• Means to prevent recurrence• Facilitation of prosecution and indication of needs for redress and health

care• Experts health professionals are part of the investigation team

• State responsibilities – investigation is prompt, independent and competent; that resources and

powers of investigative body are appropriate– Victims and witnesses are protected– Victims have access to all information and can present other evidence– Agents possibly implicated in TCIDT removed from position of power– Respond to the written report and indicate steps to be taken

• With some additional tools and practices the implementation of the Istanbul Protocol will be useful in the prevention of torture

Thank you for your attention

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