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international standards, there should be two distinct
stages: (a) the initial stage of triggering the procedure;
and then (b) the stage of establishing whether the
evidence was obtained by torture.
would not normally be in a position to establish how
they were treated. Furthermore, the defendant will
not always be the victim of the torture: a defendant
may be seeking to exclude statements made by third
parties. The defendant may have no knowledge of
the circumstances in which a particular statement was
procured, and it may be onerous to demonstrate why
the statement should be subject to challenge, other
than by way of generalised evidence about the
likelihood of torture in a particular context. In such
cases, which have typically arisen in the security
context, it would be unreasonable to require an
applicant to do more than raise a ‘plausible reason’150
why evidence may have been procured by torture.
After this the burden of establishing whether there is
a ‘real risk’ that the evidence has been obtained by
torture should transfer to the party seeking to rely on
the evidence.151
The UN Human Rights Committee has stated that
the defendant must first make a prima facie case by
advancing a plausible reason or producing a credible
complaint or evidence of ill-treatment in order to
trigger the procedure. The burden should then shift
to the prosecution to prove that a confession was
voluntary.145 Similarly, the UN Committee Against
Torture has determined that, once a defendant has
demonstrated their claim that torture occurred is
‘well-founded’, the burden of proof should shift to
the state to prove that the evidence was not obtained
by torture if it is to be admitted.146
At 5am one morning in July 1993, Singarasa was
arrested in his village in Sri Lanka along with 150 other
Tamil men. They were not informed of the reasons for
their arrest but were taken to an Army Camp and
accused of supporting the Liberation Tigers of Tamil
Eelam. During his detention Singarasa’s hands were tied
together, he was kept hanging from a mango tree and
was allegedly assaulted by members of the security
forces. Over the period until September 1993, he alleged
that he was subjected to torture which included being
pushed into a water tank and held under water, and then
blindfolded and laid face down and assaulted. He also
alleged that he was held in incommunicado detention;
had no access to a lawyer; and was not given any
opportunity to obtain medical assistance.
On 30 September 1993, Singarasa allegedly made a
statement to the police. The statement was challenged
during a ‘voir dire’ hearing,148 but the court concluded
that the confession was admissible: domestic legislation
required any statement to be admissible if the defendant
had not established that the statement was not made
voluntarily. Singarasa was convicted of a number of
terrorist offences and sentenced to
50 years’ imprisonment.
The UN Human Rights Committee found a violation of
Article 14 (Fair Trial) of the International Covenant on
Civil and Political Rights read in conjunction with Article 7
(Torture) as the complainant had been ‘forced to sign a
confession and subsequently had to assume the burden
of proof that it was extracted under duress and was not
voluntary’.149
The requirement for the state to bear the burden of
proof in establishing that evidence was not obtained
by torture recognises the fact that the state has
responsibility for the treatment of individuals in its
custody. The state should be able to demonstrate that
appropriate safeguards against mistreatment have
been complied with. A defendant, on the other hand,
CASE STUDY
SINGARASA V SRI LANKA (2004)147
Former UN Special Rapporteur on Torture, Manfred
Nowak, recognised this conundrum in his 2006
report. After reviewing two cases from Germany and
the United Kingdom which had grappled with the
burden and standard of proof in security-related
cases where the applicants were ill-placed to
discharge the initial burden, he explained:
‘The central question here is the interpretation of the
word ‘established’. It is of utmost importance in this
respect that there exists a procedure which affords
protection to the individual against whom the evidence
is invoked without imposing a burden of proof on either
party that they would not be able to discharge.
However, with an increasing trend towards the use of
‘secret evidence’ in judicial proceedings, possibly
obtained by torture inflicted by foreign officials, together
with a too-heavy burden being placed on the individual,
there exists the potential of undermining the preventive
element of Article 15’.152
Rapporteur Nowak concluded that a complainant
‘must first advance a plausible reason why evidence may have
been procured by torture’ after which it would be ‘for the
court to inquire as to whether there is a real risk that the
evidence has been obtained by torture and, if there is, the
evidence should not be admitted’.153 The Special
Rapporteur on human rights and counter terrorism
has stated:
‘If there are doubts about the voluntariness of
statements by the accused or witnesses, for example,
when no information about the circumstances is
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