measures could be taken to ensure that evidence obtained by torture and ill-treatment is not
used in criminal proceedings. The current debate at the EU level regarding the admissibility of
evidence could offer an interesting opportunity. With the adoption of legislation on EU crossborder investigations (e.g. Directive 2014/41/EU on the European Investigation Order),
ensuring the admissibility of evidence gathered in another Member State at trial has become
a crucial interest of the EU. Moreover, as the rules on the collection, use, and admissibility of
evidence are currently left to the laws of the Member States, academics have argued in favor
of a new legislative EU proposal laying down common rules for the admissibility and exclusion
of evidence in criminal proceedings (https://eucrim.eu/articles/admissibility-evidencecriminal-proceedings-eu/). While the discussions at the EU level do not only concern evidence
tainted by torture and ill-treatment but illegal evidence more broadly, they could offer an
opportunity to conduct further research in the area and on fundamental rights challenges and
promising practices in the EU area.
Academia and research institutes could research on exclusionary rules and how they are
implemented in law and practice at the national level and issue evidence-based
recommendation to national stakeholders. Based on these assessments, practical guides and
training material could be developed to raise awareness about international standards and
how to implement them into the national context. The development of such material can be
particularly valuable if developed by/in close coordination with those who have to apply it in
the first place. In Mexico, the Directorate General for Human Rights of the Supreme Court of
Mexico has published a Protocol for judges on cases of Torture in 2021, including a chapter on
exclusionary rules (see also below the contribution of Juan E. Méndez* “Torture-tainted
evidence and the exclusionary rule”).27
Civil society organizations and relevant professional categories (e.g. judiciary and bar
associations) should be closely involved in all initiatives mentioned above and can additionally
develop joint efforts and initiatives to strengthen the operation of exclusionary rules. These
could include strategic litigation before national and international courts, participating in the
monitoring of the execution of international decisions, including by submitting opinions to the
department for the Execution of ECtHR Judgments of the Council of Europe, as well as
participation in UN treaty body procedures with alternative reports. Furthermore, they can
engage in awareness raising and capacity-building activities and support in the gathering of
data on the implementation of the rule and the development of practical guidance (see also
below the contributions of Valentina Caledo and Tomás Pascual “Implementing the
exclusionary rule in practice: the potential of civil society organisations”, Catherine Kent
“Implementing the Exclusionary Rule: Procedural Aspects, the Role of the Legal Profession and
National Law, Policy and Practice”).
27
Mexico: Suprema Corte de Justicia de la Nacion, Protocolo para Juzgar Casos de Tortura y Malos Tratos, 2021
https://www.scjn.gob.mx/derechos-humanos/sites/default/files/protocolos/archivos/202201/Protocolo%20para%20juzgar%20casos%20de%20tortura%20y%20malos%20tratos.pdf
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