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Tainted by Torture: Examining the Use of Torture Evidence | 2018
all’ approach for identifying and excluding
‘torture evidence’. Nonetheless, certain
minimum
standards,
identified
from
international standards on fair trial rights, do
need to be met. Currently, many countries fail to
meet such standards and, in particular, place an
unreasonable burden on the alleged torture
victim to ‘establish’ that evidence was obtained
by torture.
We urge those working to advance
compliance with the exclusionary rule to
consider the legal procedure to be applied in
relation to the identification and exclusion
of ‘torture evidence’, taking account of
applicable international standards on the
right to a fair trial. In particular, domestic
legal regimes should be reviewed to ensure
compliance with international standards on
the burden of proof for establishing whether
evidence was obtained as a result of torture.
5.
A lack of data on the use of exclusionary
regimes precludes an assessment of how legal
frameworks are operating in practice. However,
it is clear that, in practice, preventing reliance on
‘torture evidence’ requires more than just good
domestic laws. Other factors include: (a) access
to trained professionals and an understanding of
the broader institutional incentives at play in the
justice system as a whole or in individual cases;
and (b) practical barriers to the application of
the exclusionary rule such as failures to protect
torture victims, the inability to obtain evidence
and the operation of incentives to plead guilty
rather than challenging evidence in court.
Concerns about reliance on ‘torture
evidence’ will not be solved by changes to
the law alone. We recommend approaches
which address how the law is operating in
practice. This should include the collection
of statistical data on the application of
exclusionary regimes as well as qualitative
engagement with the stakeholders who are
key to making the law work in practice.
6.
In some countries, the main evidence on which
convictions are founded is confessions. This
creates a considerable risk of coercion, including
torture. In response, some countries apply
special legal protections in the context of
confessions, including a requirement for
corroborating evidence and/or the need to
demonstrate that procedural safeguards
have been complied with during police
interviews. This approach is starting to gain
traction at an international level as a protection
against torture.
Reducing reliance on confessions in
criminal prosecutions has the potential to
address a major driver of torture. We
welcome the growing recognition that
increasing respect for suspects’ procedural
rights in the period following arrest is
important to torture prevention. We
recommend an increased focus on rightscompliant police investigations.
7.
The exclusion of ‘torture evidence’ should
operate as part of the wider anti-torture
architecture under international law. This
includes accountability (through criminal or
disciplinary sanctions). However, in practice,
where torture is identified in the course of
proceedings and the related evidence is
excluded, there is rarely an obligation on
competent officials to initiate a criminal action
against the perpetrators. In general, criminal
investigations require a formal complaint to be
made by the victim. The exclusionary rule is also
just one of a wide range of remedies and
reparations for victims that are mandated by
international law.
We recommend that states review the
process for ensuring accountability where
torture is identified in the course of
proceedings and the related evidence is
excluded: this should not rely on a
complaint by the victim. Similarly, whilst
the exclusionary rule should be recognised,
in part, as a means of reparation, it is not a
sufficient form of remedy or reparation on
its own.
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