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the absolute prohibition on torture22 and is reflected in
Article 15 of the UN Convention Against Torture:
‘Each State Party shall ensure that any statement
which is established to have been made as a result of
torture shall not be invoked as evidence in any
proceedings, except against a person accused of torture
as evidence that the statement was made’.
The prohibition on the use of such statements
is based upon a number of inter-related
rationales, including:
i)
To safeguard the fairness of a trial.23 Any
statement made under torture is ipso facto24
involuntary and inherently unreliable:
‘Any confession made as a result of physical violence
or other oppressive or inhuman treatment is not
voluntary. The accused makes it, as we have seen,
merely to avoid pain. He is not a free agent when he
makes it’.25
It also violates the presumption of innocence
which requires the state to prove guilt, and
protects a suspect’s right to remain silent and not
to be compelled to incriminate him or herself.26 In
consequence, human rights courts have regularly
determined that reliance upon statements
procured by torture in proceedings violates the
right to a fair trial. In Magee v UK,27 for example,
the European Court of Human Rights held that
the admission in evidence of statements made by a
person detained under the Prevention of
Terrorism Act 1984 at a police station in austere
detention conditions which were ‘intended to be
psychologically coercive’ and without access to a lawyer
breached Article 6(1) (Right to a Fair Trial) of the
European Convention.
ii)
iii)
To safeguard the torture victim’s rights in the
legal proceedings. Somewhat connected to the
first rationale, which focuses on the unreliability
of the evidence as the reason to exclude it in
particular proceedings, this rationale focuses on
the torture victim’s rights and is associated with
the need to provide the victim with a remedy (in
this case exclusion of the evidence) for the
violation of his or her right not to be subjected to
torture.28 This is discussed in further detail in
Chapter VII.
To use evidence procured by torture is an
outrage to basic human values and makes
the court complicit by indirectly legitimising
the torture. Thus, the admission of such
evidence taints the justice process and is an
offence to the rule of law. Such evidence must be
excluded in order to protect the integrity of the
justice system. As the European Court of Human
Rights recognised in the Othman case:
‘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’.29
iv) As a form of deterrence and prevention
serving the public policy objective of
disincentivising officials from resorting to
torture and prohibited ill-treatment in the
conduct of investigations.30 As the former UN
Special Rapporteur on Torture, Juan Mendez, has
noted, ‘[a] judicial practice that rewards torture by not
depriving it of all legal effects in fact encourages the
torturer’.31 Special Rapporteur Kooijmans wrote
similarly much earlier, in 1992:
‘Far too often the Special Rapporteur receives
information […] that courts admitted and
accepted statements and confessions in spite of the
fact that during trial the suspect claimed that these
had been obtained under torture […] It is no
exception that this chain of situations, which are
all extremely conducive to the practice of torture, is
in clear violation of the prevalent rules. Laxity
and inertia on the part of the highest executive
authorities and of the judiciary in many cases are
responsible for the flourishing of torture. […] It is
within their [the judiciary’s] competence to order
the release of detainees who have been held under
conditions which are in flagrant violation of the
rules; it is within their competence to refuse
evidence which is not freely given; it is within their
power to make torture unrewarding and therefore
unattractive and they should use that power’.32
One should not sanction the acts of torturers
around the world by giving their unlawful
conduct legitimacy through the courts.
Furthermore, to deter is not only a moral
imperative to forestall the use of torture, it is also
a legal imperative stemming from the clear
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