21
This may, for example, be the case where
suspects are mistreated by investigating officers
but where that mistreatment is not considered
severe enough to constitute torture. However, it
may not cover extensive periods of detention
pre-trial in inhumane prisons which, in practical
terms, will often result in confessions of guilt (as
a way of ending the detention).
ii)
protect against coercion. In some of these
countries, these protections explicitly cover
inhuman and degrading treatment. In the United
Kingdom, confessions are inadmissible if they
are ‘obtained […] by oppression’ and the definition
of ‘oppression’ includes ‘torture, inhuman or
degrading treatment, and the use or threat of violence
(whether or not amounting to torture)’.73
As discussed below, in many countries specific
rules apply in the context of confessions to
II.4
Evidence obtained by torture of a third party
II.4.1 International standards
The exclusionary rule prohibits the use of any
evidence obtained by torture in any proceedings. It is
not confined to criminal proceedings, nor to cases
directed against the victim of the torture: statements
procured through torture cannot be used in
proceedings against any person. This is because the
exclusionary rule is not only intended to guarantee
the right against self-incrimination; it also is intended
to guarantee the fairness of the trial as a whole. As
articulated by the Inter-American Court of Human
Rights:
‘[S]tatements obtained under duress are seldom
truthful, because the person tries to say whatever is
necessary to make the cruel treatment or torture stop.
Accordingly, the Court considers that accepting or
granting evidentiary value to statements or confessions
obtained by coercion, which affect the person or a third
party, constitutes, in turn, an infringement of a fair
trial’.74
The rule is not limited to the situation in which the
tainted evidence is sought to be brought before the
courts of the forum where the torture allegedly took
place. It is irrelevant whether the state where the
evidence is sought to be introduced had a role in the
torture or not, it would still be inadmissible in the
proceedings. The UN Committee Against Torture
addressed this in GK v Switzerland, which concerned
an extradition request from Switzerland to Spain the
basis for which was alleged to be (at least indirectly)
based on testimony extracted by torture of a third
person by Spanish authorities. Whilst the Committee
did not ultimately find a violation, it observed that:
‘the broad scope of the prohibition in article 15, proscribing the
invocation of any statement which is established to have been
made as a result of torture as evidence ‘in any proceedings’, is a
function of the absolute nature of the prohibition’.75 In its
conclusions and recommendations concerning the
United Kingdom’s fourth periodic report, the UN
Committee Against Torture indicated that ‘article 15 of
the Convention prohibits the use of evidence gained by torture
wherever and by whomever obtained’.76 Therefore, it is
irrelevant whether the forum state where the
evidence is sought to be introduced had a role in the
torture; it would still be inadmissible in
the proceedings.
II.4.2 National implementation
i)
Examples of clear exclusionary rules
Most of the countries examined prohibit reliance on
third party ‘torture evidence’. This largely derives
from the same express or implied prohibitions on
evidence obtained by torture of a defendant. For
example, in countries like Spain, where illegally
obtained evidence is prohibited, this typically applies
to all forms of evidence obtained by torture,
regardless of who was the victim of the torture.77 In
South Africa, the Constitutional rule on ‘torture
evidence’ expressly refers to any ‘evidence obtained in a
manner that violates any right in the Bill of Rights’.78 The
Constitutional Court confirmed that this applies to
third party evidence in the case of S v Mthembu.79
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