84
OTHMAN (ABU QATADA) v. THE UNITED KINGDOM JUDGMENT
264. International law, like the common law before it, has declared its
unequivocal opposition to the admission of torture evidence. There are
powerful legal and moral reasons why it has done so.
It is true, as Lord Phillips observed in the House of Lords’ judgment in
the present case, that one of the reasons for the prohibition is that States
must stand firm against torture by excluding the evidence it produces.
Indeed, as the Court found in Jalloh, cited above, § 105, admitting evidence
obtained by torture would only serve to legitimate indirectly the sort of
morally reprehensible conduct which the authors of Article 3 of the
Convention sought to proscribe.
There are, however, further and equally compelling reasons for the
exclusion of torture evidence. As Lord Bingham observed in A and others
no. 2, § 52, torture evidence is excluded because it is “unreliable, unfair,
offensive to ordinary standards of humanity and decency and incompatible
with the principles which should animate a tribunal seeking to administer
justice.” The Court agrees with these reasons: it has already found that
statements obtained in violation of Article 3 are intrinsically unreliable
(Söylemez v. Turkey, no. 46661/99, § 122, 21 September 2006). Indeed,
experience has all too often shown that the victim of torture will say
anything – true or not – as the shortest method of freeing himself from the
torment of torture.
More fundamentally, no legal system based upon the rule of law can
countenance the admission of evidence – however reliable – which has been
obtained by such a barbaric practice as torture. The trial process is a
cornerstone of the rule of law. Torture evidence damages irreparably that
process; it substitutes force for the rule of law and taints the reputation of
any court that admits it. Torture evidence is excluded to protect the integrity
of the trial process and, ultimately, the rule of law itself.
265. These reasons underscore the primacy given to the prohibition on
torture evidence in the Convention system and international law. For the
Convention system, in its recent judgment in Gäfgen v. Germany [GC],
no. 22978/05, §§ 165-167, ECHR 2010-..., the Court reiterated that
particular considerations apply in respect of the use in criminal proceedings
of evidence obtained in breach of Article 3. It observed:
“The use of such evidence, secured as a result of a violation of one of the core and
absolute rights guaranteed by the Convention, always raises serious issues as to the
fairness of the proceedings, even if the admission of such evidence was not decisive in
securing a conviction.
Accordingly, the Court has found in respect of confessions, as such, that the
admission of statements obtained as a result of torture or of other ill-treatment in
breach of Article 3 as evidence to establish the relevant facts in criminal proceedings
rendered the proceedings as a whole unfair. This finding applied irrespective of the
probative value of the statements and irrespective of whether their use was decisive in
securing the defendant’s conviction.
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