A/HRC/25/60 4. National Guidelines 59. In an attempt to regulate executive sharing and receiving information and in order to avoid allegations of complicity in acts of torture or other ill-treatment, States have adopted internal guidelines addressed to Executive agencies. 60. The Special Rapporteur welcomes recent initiatives by some States to establish and publish guidelines for intelligence services and commitments made not to participate in, solicit, encourage or condone the use of torture or other ill-treatment for any purpose, to the extent that they accord with States’ international legal obligations.54 However, some aspects of published guidelines fall short of standards required by the prohibition of torture and other ill-treatment. If a real risk of torture or ill-treatment is detected, a State must not proceed to work with a foreign agency. Any discretion afforded in the guidelines to executive actors to proceed to work despite a real risk of torture or ill-treatment is incompatible with the State’s obligation under the prohibition of torture. In addition, no distinction between torture and other ill-treatment should be made. Likewise, the excuse of exceptional circumstances contained in some national guidelines is inconsistent with the prohibition of torture and other ill-treatment.55 5. Effective oversight 61. While normative guidelines must be developed, and clarified where they exist, additional safeguards may be taken into consideration to encourage compliance with international law when using information that may be obtained by torture or other illtreatment. 62. There is currently a lack of comprehensive or effective independent oversight of the activities of the security and intelligence services. The structure of oversight mechanisms to guarantee non-use of information tainted by torture or other ill-treatment is of crucial importance, particularly in relation to cooperation between agencies. Any action by intelligence services should be governed by law, which in turn should be in conformity with international law and standards. IV. Conclusions and recommendations A. Conclusions Judicial branch 63. The exclusionary rule is fundamental for upholding the prohibition of torture and other ill-treatment by providing a disincentive to use such acts. The rule forms a part of the general and absolute prohibition of torture and other ill-treatment. As such, the exclusionary rule is not derogable under any circumstances and does also apply to States that are not party to the Convention. 64. Inadmissibility of unlawfully obtained confessions and other tainted evidence is not only one of the essential means of preventing torture and other ill-treatment but is also crucial to fair trial guarantees. The ineffectiveness of efforts to put an end to the 54 55 16 See UK Consolidated Guidance to Intelligence Officers and Service Personnel on the Detention and Interviewing of Detainees Overseas, and on the Passing and Receipt of Intelligence Relating to Detainees, July 2010; Ministerial Direction to Canadian Security Intelligence Service (CSIS): Information sharing with foreign entities, published in 2011. See e.g. CAT/C/CR/33/3, para. 4