42 Tainted by Torture: Examining the Use of Torture Evidence | 2018 Hicks, an Australian national, was apprehended by US officials in Afghanistan in 2001 and detained in Guantanamo Bay, Cuba. He claims he was subjected to torture and ill-treatment and was held without charge for years – repeated attempts to try him in Guantanamo Bay at the military commission were blocked as unconstitutional. Hicks was finally charged in 2007 and entered into a deal in which he pleaded guilty to providing material support for terrorism, in return for a seven year sentence and deportation to Australia, where he would serve the sentence imposed in Guantanamo Bay. CASE STUDY HICKS V AUSTRALIA The UN Human Rights Committee held Australia responsible for its part in the negotiation of the plea deal, recognising that Hicks had no choice but to accept the terms of the deal offered to him. The Committee considered that, by giving effect to the remainder of the sentence imposed under the plea deal, Australia had violated Hicks’ rights to liberty and security of the person.222 China is considering expanding its trial waiver systems to reduce reliance on torture and other unlawful methods of interrogation.223 Nonetheless, without other systematic procedural safeguards for defendants, the confession-based justice system is effectively preserved by reliance on trial waivers, and means that increased respect for human rights in criminal proceedings has not necessarily resulted.224 Japan is also planning to introduce the right to plea bargain in mid-2018. One of the rationales given for the change is the introduction of audio-visual recording of police interviews: ‘The number of cases subject to audio-visual recordings to improve the transparency of investigations is limited to around 3 percent of total offenses. Still, investigators claimed the recordings would make it harder for them to obtain statements from suspects, which prompted them to seek the introduction of plea bargaining as an alternative method to collect evidence’.225 This suggests that, where cameras are not installed, investigators are able to do other things to ‘obtain statements from suspects’. 189 The one exception to this is Brazil where data has been gathered in recent years about the new custody hearings procedure (at which point they examine incidents of torture). 190 UN Committee against Torture, List of issues prior to submission of the third periodic report of Japan due in 2017, 15 June 2015, CAT/C/JPN/QPR/3. 191 UN Committee Against Torture (CAT), Concluding observations of the Committee against Torture : Indonesia, 1 July 2008, CAT/C/IDN/CO/2, para 14. 192 Action by Christians for the Abolition of Torture (ACAT) and Freedom without Borders (FWB), Alternative report on torture and cruel, inhuman or degrading treatment or punishment in Tunisia submitted to the Committee against Torture during the review of Tunisia’s third periodic review, 57th session, 18 April – 13 May 2016 (2016), para 150. 193 Confidential inquiries under Article 20 of the Convention against Torture. 194 For example, Amnesty International, Prisons within Prisons: Torture and Ill-Treatment of Prisoners of Conscience in Vietnam, 7 July 2016; Human Rights Watch, Public Insecurity: Deaths in Custody and Police Brutality in Vietnam, 16 September 2014. 195 UN Committee Against Torture (CAT), Concluding observations on the combined fifth and sixth periodic reports of Mexico as adopted by the Committee at its forty-ninth session (29 October–23 November 2012), 11 December 2012, CAT/C/MEX/CO/5-6, para 15. 196 Amnesty International, ‘No End in Sight: Torture and Forced Confessions in China’, Amnesty International Publications (2015), p.35. 197 See Law No.2011-206 of 22 October 2011, amending article 155 Code of Criminal Procedure: ‘accounts and confessions of the accused and statements of the witnesses will be deemed null and void, if it can be established that they were obtained under torture or duress’. 198 UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 2 February 2012, A/HRC/19/61/Add.1, para 17. 199 Ibid. 200 For an example of this approach to research, taken in the context of decision-making on pre-trial detention, see Fair Trials, ‘A Measure of Last Resort? The practice of pretrial detention decision making in the EU’, April 2016. 201 UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak: addendum: mission to Indonesia, 10 March 2008, A/HRC/7/3/Add.7, para 76. 202 UN Committee Against Torture (CAT), List of issues prior to the submission of the third periodic report of Indonesia, 15 February 2011, CAT/C/IDN/3, Article 10, para 19. 203 UN CAT, Concluding observations on the combined fifth and sixth periodic reports of Mexico, para 15(d). 204 Code of Criminal Procedure (2011), Article 152. 205 Conectas Human Rights, Shielded Torture: how the institutions of the justice system perpetuate violence in custody hearings, February 2017, p.12. 206 Shai Danziger, Jonathan Levav and Liora Avnaim-Pesso, ‘Extraneous factors in judicial decisions’, Proceedings of the National Academy of Science, 108 no. 17 (2011). 207 Luis Pasara, ‘Pre-trial detention and the exercise of judicial independence: A comparative analysis’, Due Process of the Law Foundation (2013). 208 Ibid, pp. 9-10. 209 Cf. Fair Trials, ‘Advancing Defence Rights in the EU’, 31 March 2014, para 43. 210 Cf. Fair Trials, ‘The Practice of Pre-trial Detention Decision-Making’, 2017, para 43. 211 Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, 14 August 2006. 212 United Nations Office on Drugs and Crime, ‘Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems’, United Nations (2013), A. 5. 213 Cf. Fair Trials, ‘The Practice of Pre-trial Detention Decision-Making’; Daniel Newman, Legal Aid Lawyers and the Quest for Justice (Hart Publishing, 2013). 214 UN Committee against Torture (CAT), Concluding observations on the third periodic report of Tunisia, 10 June 2016, CAT/C/TUN/CO/3, para 21. 215 Ibid, para 13. 216 Criminal Procedure Code of Vietnam (2015), Article 174. 217 Sami Ozbil; Muslum Turfan. 218 Fair Trials, The Disappearing Trial: Towards a rights-based approach to trial waiver systems (2017). 219 United States of America v Ali Yasin Ahmed, Madhi Hashi, Mohamed Yusuf, No. 12 Cr. 661, 2012 WL 6721134 (E.D.N.Y. Nov. 15, 2012); 18 U.S.C. § 2339B (2012).