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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

[164] Authorization for access to these archives was obtained from judicial officials at the Central Criminal Court.

[165] Human Rights Watch discussion with Dr. Fa’iq Amin Baker, Medico-Legal Institute, Baghdad, August 10, 2004.

[166] The breakdown per month was as follows: June – 11; July – 4; August – 1.  There were no cases registered for the period September 1 through 14.

[167] The police stations from which the fourteen detainees were referred were the following: al-Bayya’, al-Rashad, al-Dora, Bab al-Shaikh, Hay al-‘Amel, Baghdad al-Jadida, Abu Ghraib, al-Sha’ab and al-Karkh Juveniles Police Directorate.  One of the cases connected to the Major Crimes Directorate was a referral from the Money Laundering Unit, and the other was on the basis of an order from an investigative judge at the Central Criminal Court.

[168] For the remaining six cases, the medical reports concluded that in four of them, there was no evidence of external trauma, and in a fifth case, that the scarred tissue was “old.”  The sixth case involved a child referred for medical examination to verify allegations of sodomy, though it was unclear from the records whether the allegations related to a co-detainee or to a police official.  In this case, the medical report concluded that sodomy could not be ruled out as having occurred, although there was no visible external evidence to that effect.  The doctors estimated the boy’s age to be between sixteen and seventeen.

[169] In the remaining five cases, the injuries were assessed as having occurred within a range of two weeks to two months (in one case the range given was two to four months) prior to the medical examination .

[170] There was one case in each of June, July, and August 2004.

[171] The second case was a referral from the Hay al-‘Amel police station, in which medical examiners assessed the injuries as having occurred within two to four weeks prior to the medical examination.  The third case, a referral from the al-A’dhamiyya police station, involved verification of allegations of sodomy and other sexual acts.  It was unclear from the records whether the allegations involved a police official.

[172] The monthly breakdown was as follows: January – 7: February – 2; March – 9.

[173] Three of the five cases emanating from the Major Crimes Directorate were connected to the Abduction and Murder Unit, the fourth to the Money Laundering Unit and the fifth to the Organized Crime Unit.  The other referrals emanated from the following police stations: al-Jamila, Hay al-‘Amel, al-Dora, al-Quds, al-Ma’mun and al-Karkh Juveniles Police Directorate.  In the latter case, an assessment of the age of the detainee determined that he was between nineteen and twenty years old.

[174] Human Rights Watch did not have the opportunity to examine records involving female detainees for the same period.  

[175] Human Rights Watch discussion with an investigative judge [name withheld by Human Rights Watch], Central Criminal Court, Baghdad, August 22, 2004.

[176] Human Rights Watch discussion with Zuhair al-Maliki, then chief investigative judge, Central Criminal Court, Baghdad, August 30, 2004.

[177]  Human Rights Watch discussion with a forensic doctor [name withheld by Human Rights Watch], Medico-Legal Institute, Baghdad, September 14, 2004.

[178] One of the two cases involved the referral by a Central Criminal Court judge of a detainee held by the Major Crimes Directorate in al-Rusafa.  His records at the Medico-Legal Institute showed that the judge referred him for a medical examination on July 8, 2004, but detaining officials did not implement the referral until July 17, ten days later.  The medical examination was carried out on July 18, and in this instance the report stated that no evidence of external trauma could be found.

[179]  Human Rights Watch discussion with a forensic doctor [name withheld by Human Rights Watch], Medico-Legal Institute, Baghdad, September 14, 2004.

[180]  Ibid.

[181] Investigative judges at the Central Criminal Court told Human Rights Watch that occasionally detainees alleging torture or ill-treatment are referred to a hospital rather than the Medico-Legal Institute for a preliminary medical examination, but the organization did not have the opportunity to check hospital records for details of such cases.  The judges concurred, however, that they only regarded medical reports issued by the Medico-Legal Institute as ultimately reliable.  At the institute, one of the doctors told Human Rights Watch that such preliminary examinations at hospitals are carried out by doctors on shift duty who were not specialists in the field of forensic medicine, and therefore unqualified to give a reliable assessment.  Referring cases there would only cause “unnecessary delays.”

[182] In the case of Firas ‘Imad Sadeq al-Dulaimi (See Section VII, Case 2), Human Rights Watch verified that the investigative judge did refer him for medical examination, but found no records at the Medico-Legal Institute showing that detaining officials had implemented the referral order during the four subsequent weeks.

[183]  The same reasons were cited by investigative judges at four other criminal courts (al-Bayya’, al-Karrada, al-Rusafa and al-Thawra) with whom Human Rights Watch discussed inspection visits to police stations. 

[184] In February 2004 the CPA authorized the establishment of an Office of Inspector General within each Iraqi Ministry, headed by an Inspector General appointed for a five-year term (CPA/ORD/5 February 2004/57: Iraqi Inspectors General).  Section 5 of Order 57 sets out the functions of the Inspector General, which include receiving and assessing complaints of abuse of authority and forwarding these to the appropriate investigative authority; providing information and evidence regarding potentially criminal acts to appropriate law enforcement officials; referring matters for further civil, criminal and administrative action to appropriate administrative and prosecutorial agencies; and cooperating fully in assisting the work of law enforcement agencies, investigators and courts.  Section 6 grants the Inspector General full and unrestricted access to the ministry’s records, the power to subpoena witnesses, and the authority to require a Ministry’s employees to report to the Office of Inspector General information regarding fraud, waste, abuse, corruption, and illegal acts.  Section 9 requires the inspector general to “report the findings and recommendations of the Office’s work to the respective minister, to appropriate elected and appointed leadership, and, except for law enforcement sensitive or confidential information, to the public.”  At this writing, the Ministry of Interior’s inspector general was Major General Hassan al-Saray.

[185] Human Rights Watch discussion with a police official of the Major Crimes Directorate [name withheld by Human Rights Watch], Baghdad, August 7, 2004.

[186] Article 329 of the Penal Code.  The penalty for this offense is imprisonment for periods ranging from three months to five years, or a fine.

[187] Under Article 333 of the Penal Code, the crime of torture is punishable by up to fifteen years’ imprisonment.

[188] Human Rights Watch discussion with an investigative judge [name withheld by Human Rights Watch], Central Criminal Court, Baghdad, August 22, 2004.

[189] Under Article 3 of the CCP (Law 23 of 1971 as amended).

[190] Human Rights Watch discussion an investigative judge [name withheld by Human Rights Watch], Central Criminal Court, Baghdad, September 15, 2004.

[191] CPA/ORD/27 June 2004/98 (Iraqi Ombudsman for Penal and Detention Matters).  The detaining authority, according to the Order, included Iraqi, Multinational Force or contracted personnel.  The ombudsman, appointed by the prime minister on the recommendation of the minister of justice, is authorized to investigate complaints received after the entry into force of the Order (Section 4(1); to enter and inspect detention facilities and documents at any time “subject only to the limitation that the Multinational Force Commander or his delegate may deny access for reasons of imperative military necessity as an exceptional and temporary measure, or prevent the inspection of operationally classified documents” (Section 11); and to submit appropriate recommendations to the prime minister, minister of justice, and the relevant head of the detaining authority (Section 14(4).  In cases of “serious misconduct,” such recommendations may include “dismissal, removal or punishment” of the detaining authority under investigation (Section 15).  Additionally, Article 50 of the TAL, which provided for the establishment of a National Commission for Human Rights, stipulated that the Commission “shall include an Office of the Ombudsman to inquire into complaints.  This office shall have the power to investigate, on its own initiative or on the basis of a complaint submitted to it, any allegation that the conduct of the governmental authorities is arbitrary or contrary to law.”  To Human Rights Watch’s knowledge, no steps were taken following sovereignty transfer to set up the National Commission for Human Rights.   

[192] Human Rights Watch discussion with an investigative judge [name withheld by Human Rights Watch], Central Criminal Court, October 24, 2004.

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