OVERVIEW OF THE MAIN IMPLEMENTATION CHALLENGES AND RELATING INTERNATIONAL STANDARDS Scope of application of the exclusionary rule Time and again it was reported that there is still confusion as to the scope of application of the exclusionary rule. The prohibition of the use of confessions and statements obtained through cruel, inhuman and degrading treatment Many countries prohibit in absolute terms the use of confessions and statements obtained through torture. An absolute prohibition means that the exclusionary rule operates without discretion for the judiciary, in other words there can be no balancing act. However, doubts continue to arise on whether the use of confessions and statements obtained as a result of cruel, inhuman or degrading treatment is subjected to the same standards. Although not always consistent, international standards on the matter do show that the prohibition should be applied also to the use of confessions and statements obtained through cruel, inhuman and degrading treatment. While Article 15 CAT only refers to torture, in its 2008 General Comment on Article 2, the CAT Committee considered that ”articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment”.3 Similarly, in the reporting procedure, the CAT Committee has criticised a country’s legal framework for not explicitly providing for an exclusionary rule also for cruel, inhuman and degrading treatment.4 However, the CAT Committee takes a more cautious approach in its jurisprudence, where it concluded that Article 15 does not apply to cruel, inhuman or degrading treatment in the case Kirsanov v Russia (see also below the contribution of Juan E. Méndez* “Torturetainted evidence and the exclusionary rule”). 5 The European Court of Human Rights (ECtHR) has further clarified that statements and confessions obtained as a result of torture as well as other forms of ill-treatment under Article 3 ECHR are always inadmissible, irrespective of their probative value and of whether their use was decisive in securing the defendant’s conviction (see also below the contribution of Nikolaos Sitaropoulos “Unfair trial due to torture-tainted evidence - European Court of Human Rights’ judgments and their execution”). 6 In Gäfgen v Germany,7 the ECtHR stated that: “… In respect of confessions … the admission of statements obtained as a result of torture … or of other ill-treatment in breach of Article 3 … as evidence to establish the relevant facts in criminal proceedings rendered the proceedings as a whole unfair. This finding applied irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction” 3 CAT Committee, ‘General Comment No 2 on the Implementation of Article 2’ (2008) UN Doc CAT/C/GC//2. E.g. CAT Committee, ‘Concluding Observations: Finland’ (2019) UN Doc CAT/C/FIN/CO/710. See also CAT/C/FIN/8, § 110112. 5 CAT Committee, Kirsanov v Russian Federation, No 478/2011, § 11.4. Fort further details see Giuliana Monina, ‘Article 15: Non-Admissibility of Evidence Obtained by Torture’ in Nowak, Birk, Monina, The United Nations Convention Against Torture and Its Optional Protocol: A Commentary (2nd edition 2019 OUP) 417. 6 ECtHR, Jalloh v Germany, App no 54810/00 (11 July 2006), § 105. 7 ECtHR, Gäfgen v Germany, App no 22978/05 (1 June 2010), § 166. 4 6