Example from the practice: In Sweden, the rules of evidence are based on the principle of “free evaluation of evidence.” In its fifth cycle of reporting before the CAT Committee, Sweden explained that “If it is established that a statement has been made as a result of torture, the court can reject that statement as evidence due to the fact that it would not have any effect or legal value. If it is established during the hearing that torture has been used, the court could either reject the evidence or, in cases where the witness or suspect has already been heard in the proceedings, rule that the evidence in question has no legal value. Consequently, the Swedish penal and procedural system, which is based on the principle of free examination of evidence, contains several effective provisions, including procedural safeguards, to prevent public officials from using torture in criminal investigations.“ The same was repeated in the national report of 2018.15 In its concluding observations, the Committee recommended that Sweden ensure that the prohibition on the use of statements obtained by torture as evidence in proceedings is clearly formulated in domestic law.16 Ensure that the legality of evidence can be assessed early on in the process and the exclusionary rule becomes applicable as soon as there is a prima facie allegation that the evidence is extracted by torture or other ill-treatment, after which a shift of the burden of proof to the State authorities should apply. During the consultations, it emerged that even when a general prohibition is in place, this is not efficient or barely used in practice and very few cases on the matter reach high courts. The reasons are manifold and should be explored more in detail. Some include, amongst others, the lack of effective mechanisms for shifting the burden of proof to the State authorities as soon as there is a prima facie allegation that the evidence is extracted by torture or other ill-treatment, the lack of mechanisms for early exclusion of evidence, as well as the lack of practical guidance.17 In some countries, the situation is further exacerbated by a lack of appropriate procedural safeguards, such as audio-visual recording, access to a lawyer, access to independent medical examination, which makes it even more difficult for the defence to substantiate the allegations of torture and ill-treatment (see also below the contributions of Ilze Tramaka “Reducing reliance on torture evidence”, Rupert Skilbeck “Excluding Confessions obtained by torture”, Balázs Tóth “Theoretically effective, practically almost non-existent: the exclusion of evidence obtained by torture in criminal proceedings in Hungary”, Natalia Taubina “Evidence of crime obtained by torture: law and practice”). At the international level, there are consolidated standards on the burden of proof. Since the decision PE v France of 2002, the CAT Committee has consistently held that Article 15 derives from the absolute nature of the prohibition of torture and implies, consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is 15 CAT Committee, National Report by Sweden (21 December 2018) CAT/C/SWE/8,§ 166ff; and National Report by Sweden (10 February 2006) CAT/C/SWE/5, § 47ff. 16 CAT Committee, Concluding Observations: Sweden (4 June 2008) CAT/C/SWE/5, § 21ff; Concluding Observations: Sweden (6 June 2002) CAT/C/CR/28/6, § 7 (h). However, no recommendation on Article 15 was formulated in the CAT Committee, Concluding Observations: Sweden (20 December 2021) CAT/C/SWE/CO/8. 17 Workshop held on 13 May 2022. See also Fait Trial/Redress ‘Tainted by Torture Examining the Use of Torture Evidence’ (May 2018) <https://www.fairtrials.org/sites/default/files/publication_pdf/Tainted-by-Torture-Examining-the-Use-ofEvidence-Obtained-by-Torture.pdf> and Fair Trials, ‘Unlawful evidence in Europe’s courts: principles, practice and remedies’ (October 2021). 9