Undertaking Effective Investigations A Guide for National Human Rights Institutions 5. WHAT PROBLEMS MIGHT ARISE DURING THE INVESTIGATION? Investigators should attempt to identify possible difficulties that, based on their knowledge of the case or past experience, may arise during the investigation. Possible solutions should be developed to avoid them or address those obstacles, should they arise. Lack of cooperation If an organization or individual involved in the investigation is likely to be uncooperative, brainstorm ways of pre-empting or circumventing the problem as the investigation is planned. Dealing with an obstructive agency or person is never easy for an investigator, but things can be made simpler if they have a strategy in place. For example, could that information be obtained from other sources? Would it be useful to make clear to all stakeholders when the investigation is launched that full cooperation is required and expected? If it is almost inevitable that any legal powers available to the NHRI will have to be used – such as a subpoena or power of entry – then build that into the plan. Fear of reprisal As discussed in the section on whistleblowers and confidential informants in Chapter 17 of this Manual, a fear of reprisal can be a major concern in many investigations. Intimidation, coercion or simply not wanting to get involved may prevent witnesses from coming forward and hamper the investigation. There may be things that can be done as the investigation is planned to encourage witnesses to come forward. Effective messaging will be an important part of this process (see section 7 below). There may be steps that can be taken to provide a degree of protection to those who come forward, including using any available “whistle blower” legislation. If so, plan how they will be used and in what circumstances. It may also be possible to put in place measures to increase confidentiality, such as interviewing witnesses at a safe(r) location and establishing private methods of communication. Culture and language Do cultural, language or other issues need to be considered during the investigation? Is there anything that can be done to address these issues before the investigation begins? If a translator is needed, this should be organized early in the investigation. Similarly, investigators may need assistance and advice to understand the culture and protocols of a group that is going to be a part of the investigation. There are a number of practical issues to consider. For example, will the leaders of the community involved in the investigation expect witnesses to be approached through them? Or is it appropriate for the investigator to contact witnesses directly? Access to sources of evidence Accessing sources of evidence is clearly very important. It is difficult to do a thorough investigation otherwise. As the investigation plan is developed, think about what impediments there may be to accessing that evidence. Based on experience, is it possible or likely that a key witness will be transferred to the other side of the country once it is known that they will be required for an interview? Will other witnesses be unavailable? Will there be “unavoidable delays” in an organization providing the documents that have been requested? Will the organization expect the investigation to be carried out through a designated “point of contact”, rather than going straight to the source?29 Destruction or tampering with evidence Are there grounds to suspect that evidence might be destroyed or tampered with before it can be secured? If so, plan what can be done to preserve the evidence. For example, the investigator can inform whoever has custody of that evidence that its existence is known and put the responsibility on them to preserve it. 29 36 The advantages and disadvantages of having a designated “point of contact” are discussed in Chapter 1.