expressed in article 69(7) of the Rome Statute of the International
Criminal Court, which has its counterpart in the Rules of Procedure and
Evidence of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda:
“Evidence obtained by means of a violation of this Statute
or internationally recognized human rights shall not be
admissible if:
(a)
the violation casts substantial doubt on the
reliability of the evidence; or
(b)
the admission of the evidence would be
antithetical to and would seriously damage
the integrity of the proceedings.”
The appellants contend that admission as evidence against a party to
legal proceedings of a confession or an accusatory statement obtained by
inflicting treatment of the severity necessary to fall within article 1 of
the Torture Convention will “shock the community”, infringe that
party’s rights and the fairness of the proceedings (R v Oickle: see para
17 above), shock the judicial conscience (United States v Hensel 509 F
Supp 1364 (1981), p 1372), abuse or degrade the proceedings (United
States v Toscanino 500 F 2d 267 (1974), p 276), and involve the state in
moral defilement (The People (Attorney General) v O’Brien: see para
17 above).
(7) The impact of terrorism
40.
The European Court has emphasised that article 3 of the
European Convention is an absolute prohibition, not derogable in any
circumstances. In Chahal v United Kingdom (1996) 23 EHRR 413, para
79, it ruled:
“79. Article 3 enshrines one of the most fundamental
values of democratic society. The Court is well aware of
the immense difficulties faced by States in modern times
in protecting their communities from terrorist violence.
However, even in these circumstances, the Convention
prohibits in absolute terms torture or inhuman or
degrading treatment or punishment, irrespective of the
victim’s conduct. Unlike most of the substantive clauses
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