BEWARE THE GIFT OF POISON FRUIT
The various good practices of law enforcement agencies in the
collection of evidence might be applied to the use of torture-tainted
information. The strict rule of exclusion for any evidence obtained in
violation of the prohibition against torture and ill-treatment should
be the starting point for any active process of receiving information
from another State.
As noted in a recent OSCE publication providing guidance for
investigations by law enforcement officials, “[t]he information or
intelligence obtained by such illegal means, even when not intended
to be used in court proceedings, should always be treated in the
same way that a court would treat evidence obtained by illegal
means and, thus, be disregarded.”48 This, it provides, is because the
reliability of such information will always be doubtful.
If it is now well understood that confessions are suspicious when
they provide the only evidence of guilt, that torture-tainted evidence
is inherently unreliable, and the use of such evidence damages the
integrity of the judicial process, then it must also be recognised that
any use of torture-tainted information in an executive process is just
as problematic.
Is receipt of torture-tainted information
ever really ‘passive’?
There is considerable confusion among executive actors as to where
activities of agencies changes from mere passive receipt into tacit
consent and acquiescence, at which point the receiving agency
becomes part of the commission.
States have attempted to avoid liability for their role in abuse of
persons by describing their role as merely passive, when, in reality,
there is a much more active relationship. Often, States exchange
information on a continuous and systematic basis, perhaps even
subject to a formal agreement. As information is rarely offered
without an agreement of intelligence sharing or some similar
reciprocal understanding, whether information could ever be
received passively is open to some doubt. As a result, even though
information appears to be shared passively, international duties and
obligations could still apply.
48
36
OSCE, Human Rights In Counter-Terrorism Investigations: A Practical Manual For
Law Enforcement Officers (2013), p.28.
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