24 Tainted by Torture: Examining the Use of Torture Evidence | 2018 but also of other forms of evidence obtained as a result of torture (insofar as it can be shown that the evidence would not have been discovered but for the violation). This is the view taken by the InterAmerican Court, which indicated: ‘[T]he absolute nature of the exclusionary rule is reflected in the prohibition on granting probative value not only to evidence obtained directly by coercion, but also to evidence derived from such action. Consequently, the Court considers that excluding evidence gathered or derived from information obtained by coercion adequately guarantees the exclusionary rule’.101 The European Court of Human Rights has consistently refrained from deciding whether evidence in national jurisdictions is admissible, focusing instead on the separate question of the overall fairness of the trial: ‘It is […] not the role of the court to determine, as matter of principle, whether particular types of evidence – for example, evidence obtained unlawfully in terms of domestic law may be admissible. The question which must be answered is whether the proceedings as a whole, including the way in which the evidence was obtained, were fair’.104 The European Court of Human Rights has taken a nuanced approach to cases concerning derivative evidence; it has found that derivative evidence located as a result of torture must be excluded because it would necessarily violate the accused’s fair GÄFGEN V GERMANY Gäfgen had been convicted in Germany of the murder of a child. The question for the European Court of Human Rights was whether the admission of evidence during the trial constituted a violation of the right to a fair trial (Article 6). The evidence in question included the child’s corpse, its subsequent autopsy results and other evidence found in the vicinity of the corpse. The location of the corpse had been disclosed by Gäfgen following threats to torture him. The Court held that the threats violated the right not to be subjected to torture or to inhuman or degrading treatment or punishment, but that they constituted inhuman treatment rather than torture. It concluded that the derivative evidence obtained as a result of that ill-treatment did not render the trial unfair. The reasoning of the majority was based on its understanding that ‘contrary to Article 3, Article 6 does not enshrine an absolute right’ and, furthermore, it could not be shown that the ill-treatment had a bearing on the outcome of the proceedings. Thus, the causal link between the threat of torture and the conviction had been broken.108 This contrasted with the Grand Chamber’s conclusion in the earlier Jalloh case in which the evidence used in the criminal proceedings against the applicant was obtained as a direct result of ill-treatment (forced regurgitation).109 Dissenting judges in the case criticised the distinction made by the majority in their approach to evidence procured by torture as opposed to other prohibited ill-treatment: ‘From the moment of arrest to the handing down of sentence, criminal proceedings form an organic and inter-connected whole. An event that occurs at one stage may influence and, at times, determine what transpires at another. When that event involves breaching, at the investigation stage, a suspect’s absolute right not to be subjected to inhuman or degrading treatment, the demands of justice require, in our view, that the adverse effects that flow from such a breach be eradicated entirely from the proceedings’.110 CASE STUDY It is also the understanding of the UN Human Rights Committee, when it explains that ‘no statements or confessions or, in principle, other evidence obtained in violation of this provision [prohibition on torture and illtreatment] may be invoked as evidence in any proceedings covered by article 14 [fair trial]’, including during a state of emergency.102 In the context of international criminal law, the Extraordinary Courts in the Chambers of Cambodia interpreted Article 15 to find that there was as yet no international standard concerning the treatment of evidence derived from ‘tainted’ evidence. Having interpreted the preparatory work of the CAT and the customary law of free admissibility of evidence in Cambodia to not support a broadening of the scope of Article 15, the Court concluded that derivative evidence could be admitted ‘so long as the proposed use does not circumvent the prohibition against invoking the contents of torture-tainted confessions to establish their truth’.103 trial rights,105 but derivative evidence located as a result of other prohibited ill-treatment may only possibly violate the accused’s fair trial rights.106 In the Gäfgen case (see below) the Court concluded that the right to a fair trial was not violated as a result of admitting evidence derived from inhuman treatment because there was a break in the causal link between the ill-treatment and the conviction. By contrast, in the case of Jalloh, the European Court of Human Rights concluded that there was a violation of the right to a fair trial where the evidence was directly obtained as a result of the ill-treatment.107 Jalloh had been held down by police whilst a doctor inserted a tube through his nose and administered a salt solution and syrup to force him to regurgitate drugs that he had swallowed.