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IX. Medical examinations and investigation of torture complaints

In August and September 2004, Human Rights Watch visited the Medico-Legal Institute in Baghdad and studied archive records relating to detainees referred there for medical examination in connection with torture allegations.¹⁶⁴  The organization looked through records for the period June 1 to September 14, 2004, focusing on the period following the appointment of the Iraqi Interim Government.  For comparison, Human Rights Watch also examined records for the first three months of 2004.

An investigative authority, which may be either a judicial authority or a police authority acting on the basis of a court order, refers all cases involving external trauma to the Medico-Legal Institute.  A panel of three doctors examines each individual referred, and the institute’s director, Dr. Fa’iq Amin Bakr, conducts an additional examination.  They determine whether there are visible traces of external trauma, whether these were inflicted by another person or more likely to be self-induced, the probable cause of such injuries, and their approximate age.  Dr. Bakr told Human Rights Watch that such referrals, particularly from the criminal courts and police stations, were made to the institute on a regular basis each month, but said he could not indicate the numbers of such referrals in an average month.¹⁶⁵

Medical records for male detainees covering the period beginning June to mid-September 2004, showed that authorities had made sixteen such referrals,¹⁶⁶ fourteen of them on the basis of court orders from the criminal courts or from judicial investigators based at police stations, and two from the Major Crimes Directorate.¹⁶⁷  The medical reports for ten of those cases, one of which involved a child, concluded there was evidence of external trauma, such as recent scar tissue, abrasions, contusions, bruising, discoloration of the skin, or internal bleeding.¹⁶⁸ These injuries most commonly related to the face, limbs, and back.  While the medical files examined by Human Rights Watch did not contain information relating to the date of arrest of the detainees in question, in half of the cases (five in all), the medical examiners assessed the injuries as having occurred within a range of twenty-four hours to two weeks prior to the medical examination taking place.¹⁶⁹  Medical records for female detainees covering the same period beginning June to mid-September 2004 indicated three referrals to the Medico-Legal Institute.¹⁷⁰  In two of the cases, the medical reports concluded that there was evidence of recent external trauma in the form of contusions and bruising.  The Office of the Undersecretary for Intelligence Affairs at the Interior Ministry referred one of these cases in which the medical examiners assessed the injuries as having occurred some seven to ten days prior to the medical examination.¹⁷¹ 

For the earlier period of January to March 2004, Iraqi authorities referred a total of eighteen cases,¹⁷² five of which involved detainees held at the Major Crimes Directorate and the remainder at various police stations.¹⁷³  Medical examiners found evidence of recent injuries, including scarring, abrasions, and contusions in eight of them, and concluded that the injuries sustained in six of them had occurred within a range of two to fourteen days prior to the medical examinations.¹⁷⁴  The lack of any marked differences in the number and types of cases involving males detainees referred to the Medico-Legal Institute during the two periods in question accorded with what most investigative judges had told Human Rights Watch.  They concurred that since July 1, 2004, the level and nature of allegations of abuse by detainees had not altered significantly.  One judge, however, did point to an increased level of allegations by detainees of electric shocks under interrogation, which he said police interrogators appeared to be increasingly using “since it leaves few traces except perhaps tiny burn marks on the earlobes or other places.”¹⁷⁵

Human Rights Watch noted that although medical reports at the Medico-Legal Institute included a description of the evidence of physical trauma, based on an eye examination, they also stated that it was not possible to identify the kinds of instruments likely to have caused the injuries.  Although investigative judges that Human Rights Watch spoke to said they relied fully on the institute’s assessments, one expressed the view that medical staff there were few in number and lacked the necessary means to carry out effective and timely examinations.  “The lack of resources also means that medical reports come back ambiguous, such that it is unclear whether the injuries detected are in fact torture or self-inflicted.”¹⁷⁶

When asked about this, one forensic doctor at the Medico-Legal Institute said that “the reliability of a medical report depends on the speed with which the person concerned is referred for examination.”¹⁷⁷  Only two of the letters of referral from the police contained in the medical records examined by Human Rights Watch mentioned the date on which investigative judges or judicial investigators had referred the detainees in question for medical examination, making it difficult to estimate the time lag involved in implementing these orders.¹⁷⁸  The forensic doctor told Human Rights Watch that this was often deliberate, and that there was on average a twenty-day delay between the issuance and implementation of a referral order, by which time much of the physical evidence of torture will have disappeared.  “Sometimes the detainees themselves tell us when they are brought in that there is no point in having a medical examination since they were tortured two months previously,” he added.¹⁷⁹  This statement was supported by another staff member at the institute.  The doctor told Human Rights Watch:

The most common kind of cases we see here involve beatings with cables, pipes and sticks, causing injuries such as abrasions and contusions, which disappear within a maximum period of some twenty-one days.  Because of the delays by the police in implementing the decisions of the courts, it makes it difficult if not impossible for us to identify the tools used in torture, particularly as these types of injuries could have been caused in any number of ways.  Sometimes the police deliberately cause delays.  For example, they bring in detainees without the required stamp on their left wrist and without their photographs being stamped.  They know that we will have to reject these cases until proper procedures are followed, so causing further delays before a medical examination takes place.  But there are also other types of torture that can be used, such as electric shocks, which leave no physical trace except for tiny burn marks on the skin and are not easily detected.¹⁸⁰

Human Rights Watch’s examination of the medical archives showed that relative to the many such reports it had received and the number of cases it documented, the level of referrals to the Medico-Legal Institute for verification or otherwise of torture allegations was very low.¹⁸¹  Of the detainees that the organization had interviewed from July through mid-September 2004, only one person appeared to have been referred for medical examination, despite the presence of visible external trauma in some of the cases suggesting torture or ill-treatment.¹⁸² 

The practice of holding detainees for several weeks, and in some cases for several months, before bringing them to court for the first time appears to have been a major factor contributing to the non-referral of alleged torture victims for medical examination.  The problem is compounded by the fact that in many cases, police apprehended the suspects without presenting them before a judge in the requisite twenty-four hours.  This practice is facilitated by the failure to obtain arrest warrants in the first place, which meant that no judicial authority was aware of their detention.  While the Central Criminal Court’s investigative judges are authorized to carry out inspection visits of the Major Crime Directorate’s detention facilities, in practice this rarely happened.  The judges cited current security conditions and a large caseload as the prime reasons for the failure to conduct these inspections.¹⁸³  Human Rights Watch sought to discuss this issue with the representative of the Public Prosecution to the Central Criminal Court’s investigative court, who is also authorized to carry out such inspections, but he declined to meet with the organization.  Human Rights Watch is not aware of any steps taken by the Ministry of Interior’s inspector general to assess the extent to which the conduct of law enforcement personnel and those involved in detentions is in compliance with legislation currently in force, nor whether any complaints regarding the illegal detention or abuse of detainees have reached the Inspector General’s Office.¹⁸⁴  A police official attached to the Major Crimes Directorate told Human Rights Watch that within the Ministry’s Office of Inspector General, a body known as the Interior Security Forces Inspection Commission (Hay’at Taftish Qiwa Amn al-Dakhiliyya) is tasked, among other things, with examining relevant records to ensure that detentions are authorized by the judicial authorities, but that “in practice no one comes to verify this”.¹⁸⁵

Torture most commonly takes place during the immediate period following arrest, when detainees are held incommunicado while undergoing interrogation, and are at their most vulnerable. By the time they are brought before an investigative judge, much if not all of the physical evidence of torture will have disappeared.  At that point, unless physical injuries are still visible, investigative judges see little purpose in ordering a referral to the Medico-Legal Institute even if the detainees have alleged that police extracted their statements or confessions under duress.  In the absence of physical evidence, it is unlikely that the judges will initiate a criminal investigation into the conduct of the offending officials.  They can initiate legal proceedings against police officials for failures or delays in the implementation of orders issued by the judicial authorities,¹⁸⁶ such as an order to refer a detainee for medical examination, which carries a lesser penalty than the crime of torture under the Penal Code.¹⁸⁷  While investigative judges have initiated proceedings against police officials for delays in implementing court orders, Human Rights Watch did not have information on the status of these cases at this writing.

In other instances, detainees themselves requested that they not be referred for medical examination, fearing that this would prolong their pre-trial detention and delay an earlier resolution of their cases.  Several investigative judges told Human Rights Watch that they would generally comply with such requests.  Other detainees feared the consequences of talking about any torture that they may have endured before coming to court.  Among those interviewed by Human Rights Watch, several said that police officials threatened that they would receive the same treatment if they stated before the judge that they had been ill-treated or tortured.  Once the initial appearance before an investigative judge takes place, detainees are supposed to be taken to the Transfer Prison under the jurisdiction of the Iraqi Correctional Service.  In practice, detainees held by one or another of the Ministry of Interior’s agencies often continued to be held by that same authority even after their appearance in court.  In other words, they remained in the custody of the same authority that was responsible for their torture or ill-treatment. 

Investigative judges with whom Human Rights Watch discussed this problem said it was not so much a question of where the detainees were being held as opposed to which officials were responsible for investigating the alleged crimes. Several recommended that a separation of powers between the arresting and detaining authority on the one hand, and the investigative authority on the other, would afford better protection for detainees from physical abuse.  At the same time, they expressed doubt as to whether this could be achieved in the foreseeable future.  One judge added:

Only the judicial authorities should have the power to carry out criminal investigations, as is the case in some European countries.  Only then will torture stop, otherwise it will continue.  It is one of the reasons why defendants don’t talk when they come before me, although I can see that they have been beaten up.¹⁸⁸

In instances where there are grounds to believe that police have tortured a detainee, the investigative judge will nevertheless proceed with the case provided other evidence is available indicative of the crime having been committed.  According to one judge, detainees usually retract their initial confessions, saying that they gave them under torture or threats.  But unless there remains physical evidence of such abuse, the judge will not initiate any criminal investigation against the alleged perpetrators.  In such cases, a criminal investigation can only be initiated on the basis of a formal complaint submitted by the detainee concerned.¹⁸⁹  This is a rare occurrence, given that the detainee remains for a time in the custody of the officials against whom he is submitting a complaint.¹⁹⁰  Human Rights Watch is not aware of the existence of any other mechanism whereby such complaints could be made.  On the eve of sovereignty transfer, the CPA authorized the appointment of an ombudsman for penal and detention matters, allowing detainees to submit complaints relating to the behavior of a detaining authority.  To Human Rights Watch’s knowledge, no such appointment had been made at this writing.¹⁹¹              

Human Rights Watch learned that, as of late October 2004, investigative judges had initiated investigations into the conduct of twenty police officers, some of them on the basis of information that they had abused detainees in their custody.  Of these, five or six had resulted in the conviction of the police officers, who received non-custodial sentences, such as fines.  The rest were still pending at this writing, and in their efforts to secure compliance by the officers under investigation to obey court summons, judicial officials said they had received little cooperation from ministry officials.  One judge said: “On one occasion, I saw one of these police officers walking around in court.  I went to inform the Internal Affairs officials, who keep an office at the court.  I pointed out the officer and asked why no action was being taken.  They told me this would require approval from a higher authority”.¹⁹²