Eliminating incentives for torture
The use of torture is not only an egregious human rights violation in itself, but it also leads to other serious human rights violations, including the violation of the right to a fair trial. The use of torture, and evidence obtained by torture, taints the entire criminal justice process, eroding the rule of law and public trust in the system’s ability to deliver justice.
All 57 participating States of the Organization for Co-operation and Security in Europe (OSCE) have explicitly and unequivocally pledged to uphold the absolute prohibition of torture and other ill-treatment and committed themselves to strive for its elimination. Despite this, the use of torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) continues to be a problem in criminal justice systems across the OSCE region. While torture is used for numerous, often intertwining reasons, some common aspects of domestic laws, policies, practices, and institutional and workplace cultures incentivize and facilitate its use by law enforcement officials and other criminal justice actors.
A principal motivation for the use of torture by actors in criminal justice systems is the goal of obtaining evidence that will lead to more or more serious convictions. Accordingly, criminal justice systems that are overly reliant on the use of confessions as evidence incentivize the use of torture, especially by police.
The use of torture is also incentivized when evidence obtained through its use can be admitted as incriminating during trials.
Increasingly, OSCE participating States have been introducing trial-waiver systems, where suspects admit guilt and waive their right to a trial in exchange for some form of benefit.3 If not properly regulated, trial-waiver systems can provide additional incentives for police to use torture to extract confessions or to coerce defendants, suspects and those accused into plea agreements.
Police and prosecutors in some countries are put under pressure to reach a certain number of arrests and convictions through the use of performance quotas or targets. These quotas can affect pay and promotions, and this can incentivize police and other criminal justice actors to use any means necessary to reach their targets, including torture or other ill-treatment.
The failure of states to properly investigate, prosecute and punish perpetrators of torture and other ill-treatment is another factor that contributes to torture and other ill-treatment remaining a reality in the OSCE region.
In addition to direct incentives for acts of torture and other ill-treatment, there are also factors within criminal justice systems that facilitate their use, such as the overuse of pre-trial detention.
Another factor that facilitates the persistence of torture is a failure by states to conduct prompt and independent forensic medical examinations of those who allege torture. Independent medical examinations play an essential role in criminal investigations into acts of torture, in seeking compensation and in excluding evidence obtained by torture from proceedings.
This publication includes detailed policy recommendations on how to effectively address and eliminate each of these factors and incentives.