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Conclusions and recommendations
1.
International human rights law prohibits
reliance on evidence obtained as a result of
torture. This rule plays a key part in the overall
legal architecture which underpins the absolute
prohibition on torture. Reliance on ‘torture
evidence’ is prohibited because: (a) it is
involuntary, inherently unreliable and violates
the right to a fair trial; (b) to rely on such
evidence undermines the rights of the torture
victim; (c) it indirectly legitimises torture and in
so doing taints the justice system; and (d)
prohibiting reliance on the fruits of torture acts
as a form of deterrence and prevention.
We recommend that domestic legal regimes
be reviewed to ensure compliance with
existing international standards on the
exclusion of ‘torture evidence’. This should,
for example, form a part of country reviews
by relevant treaty monitoring bodies. Where
states fail to remedy shortfalls in protection
this should become a focus for advocacy,
including by domestic civil society actors.
3.
Given its crucial role in the prohibition on
torture, the exclusionary rule should be
accorded a more prominent role in the work
undertaken to combat torture. In particular,
we would urge the UN Committee Against
Torture to produce a general comment on
the topic.
2.
Despite this clear legal obligation, some
countries do not prohibit reliance on ‘torture
evidence’ at all. More commonly, countries have
some form of exclusionary rule but this is
incomplete and fails to meet the key
components of the rule as defined by
international law:
i)
ii)
Some countries do not have an absolute
prohibition on reliance on ‘torture
evidence’: frequently, countries require the
courts to carry out a balancing act when
deciding whether to admit unlawfullyobtained evidence, even in circumstances
where that evidence is obtained as a result
of torture.
A number of countries prohibit reliance on
statements obtained from the torture of the
defendant, i.e. a confession obtained as a
result of torture. However, it is quite
common for exclusionary regimes not to
extend to evidence obtained from the
torture of a third party, i.e. when a person
(who is not the defendant) is tortured and,
as a result, implicates the defendant.
There are two areas in particular on which
international standards do not provide clear
guidance as to the scope of the exclusionary
rule. This is reflected in (and perhaps results
from) varying approaches in domestic law:
i)
There is confusion about the application of
the exclusionary rule to evidence indirectly
derived from torture, i.e. physical evidence
located due to a statement made as a result
of torture. Although some countries do
have blanket prohibitions on relying on
such evidence, most apply a range of
considerations to determine whether this
kind of derivative evidence should be
excluded.
ii)
There is also a lack of clarity about the
extent to which the exclusionary rule
applies to evidence obtained as a result of
cruel, inhuman or degrading treatment or
punishment.
Clarity is needed on the extent to which the
exclusionary rule covers derivative evidence
and evidence obtained as a result of
inhuman or degrading treatment or
punishment (as opposed to ‘torture’). This
should be the focus of further research and
we urge the UN Committee Against Torture
to address these issues in a general
comment.
4.
In addition to having appropriate domestic laws
requiring the exclusion of ‘torture evidence’,
states must provide a fair and effective
procedure to apply those laws in practice.
Variations in countries’ criminal procedures
make it unworkable to develop a ‘one size fits
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