A/HRC/25/60
torture implies that states are under an obligation to refuse to accept any results arising from
its violation by another state.37
43.
International law intends to bar not only actual breaches but also potential breaches
of the prohibition against torture as well as any cruel, inhuman or degrading treatment or
punishment and obliges States to put in place all those measures that may pre-empt the
perpetration of torture.”38
44.
The obligation to take effective preventive measures transcends the items
enumerated specifically in the Convention. Article 2, paragraph 1, provides authority to
build upon subsequent articles, 3 to 15 of the Convention, referring to specific measures
known to prevent acts of torture and other ill-treatment and to expand the scope of
measures required for such prevention. Thus, States must take effective preventive
measures -- including by good faith interpretation of the existing provisions-- to eradicate
torture and ill-treatment.39
45.
In this sense, the customary non-refoulement provision as contained in article 3 of
the Convention is one obligation under the overarching aim to prevent torture and other illtreatment. It contains the States’ obligation not to return a person if there are substantial
grounds for believing that he or she would be in danger of being subjected to torture, even
outside of a States own territory and control. In the case Soering v United Kingdom the
European Court of Human Rights ruled that even though the European Convention on
Human Rights and Fundamental Freedoms does not contain a specific non-refoulement
provision prohibiting the extradition of a person to another State where he would be subject
or be likely to be subjected to torture or other ill-treatment, such obligation was already
inherent in the general terms of the prohibition against torture by referring to the
recognition of its absolute nature and its fundamental value for democratic societies.
46.
The interpretation and extension of the prohibition against torture under the nonrefoulement provision, provides important guidance regarding rules applicable to executive
actions that purposely and objectively promote torture by taking advantage of its results.
The non-refoulement obligation is a specific manifestation of a more general principle that
States must ensure that their actions do not lead to risks of torture anywhere in the world.
There is a clear negative obligation not to contribute to a risk of torture.
47.
As mentioned earlier in this report, the exclusionary rule provides for an absolute
prohibition in international law on the use of evidence obtained by torture or ill-treatment in
any proceedings. It is considered a preventive measure, reasonably required to give effect to
the absolute prohibition of torture and ill-treatment and the obligation to prevent and
discourage such acts, alongside other provisions of the Convention and customary law. On
the basis of the purpose and object of the exclusionary rule and in the general prohibition of
torture and other ill-treatment, the exclusionary rule must be interpreted to apply much
more widely, to include the activities of executive actors.40 Information obtained by torture
or other ill-treatment, even when not intended to be used in formal proceedings, must
always be treated in the same way that a court would treat evidence obtained by illegal
means and thus, be disregarded.41 Articles 2 and 16 of the Convention require States to
37
38
39
40
41
12
Ibid., para. 159, 163; A v. SSHD (2005), op. cit., para. 34
International Criminal Tribunal for the Former Yugoslavia, Furundzija, (1998), IT-95-17/T10,
para.148; A/59/324, para. 27
Committee against Torture, General comment No.2, (CAT/C/GC/2), para. 25
A/ HRC/16/52, paras. 53-57; A/67/396, paras. 48-49.
See e.g. OSCE, Human Rights In Counter-Terrorism Investigations: A Practical Manual For Law
Enforcement Officers (2013), p. 28
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