judicial process and the admission into a trial of evidence obtained in violation of an absolute human right would undermine and jeopardise the integrity of that process. In our view, criminal activity may not be investigated nor an individual’s conviction secured at the cost of undermining the absolute right not to be subjected to inhuman treatment as guaranteed under Article 3. To hold otherwise would involve sacrificing core values and bringing the administration of justice into disrepute.” Considering the above, it would be particularly helpful to reflect on whether the distinction made in Gäfgen is still appropriate or, rather, if it is time to opt for a stricter application of the exclusionary rule. The current approach carries the risk of rendering the rules on the admissibility of torture-tainted evidence - and their preventive rationale - irrelevant in practice. Moreover, the ECHR standards as developed by ECtHR set up a fairly complicated and articulated system, which can be challenging to implement. Some States may in fact limit themselves in applying the lower standards in all cases in which evidence was obtained by cruel, inhuman or degrading treatment, without making a distinction between confessions and other evidence. Example from the practice: The issue recently emerged in the CAT Committee reporting procedure regarding Finland. While evidence obtained through torture is absolutely prohibited, evidence obtained as a result of cruel, inhuman or degrading treatment is assessed differently and may be used “unless such use would endanger the conduct of a fair trial, taking into consideration the nature of the case, the seriousness of the violation of law involved in the obtaining of the evidence, the significance of the method in which the evidence was obtained in relation to its credibility, the significance of the evidence in respect of the decision in the case, and the other circumstances.” 11 In its periodic report, the State explained that its national law is consistent with the requirements of Article 6 ECHR and the case law of the ECtHR, and that consequently no amendment is warranted.12 The CAT Committee has yet to issue concluding observations in the eighth reporting cycle. In the previous reporting cycle, the CAT Committee noted with concern that the Code of Judicial Procedure allowed for the use of evidence obtained unlawfully, including through ill-treatment, if it does not prejudice a fair trial and recommended Finland to amend the Code of Judicial Procedure to prohibit the admissibility in judicial proceedings of evidence obtained through ill-treatment and remove the provisions that give courts discretionary authority when it comes to the use of evidence obtained unlawfully.13 Other procedural obligations and domestic procedures to exclude evidence Other factors that often cause challenges in the implementation of the exclusionary rule of torturetainted evidence concern several procedural aspects. A short survey is included in the following. The exclusionary rule should be provided explicitly in the law. In its concluding observations, the CAT Committee has recommended that the prohibition on the use of statements obtained by torture and other forms of ill-treatment as evidence in proceedings be clearly formulated in domestic law. 14 Yet some States do not comply with this recommendation. 11 CAT Committee, National Report by Finland (3 December 2020) CAT/C/FIN/8, § 110 ff. Ibid, § 112. 13 CAT Committee, Concluding Observations: Finland (20 January 2017) CAT/C/FIN/CO/7, § 10 ff. 14 E.g. CAT Committee, Concluding Observations: Belgium (25 August 2021) CAT/C/BEL/CO/4, §37; Concluding Observation: Belgium (3 January 2014) CAT/C/BEL/CO/3, § 24; Concluding Observations: Sweden (4 June 2008) CAT/C/SWE/5, § 21ff; Concluding Observations: Sweden (6 June 2002) CAT/C/CR/28/6, § 7 (h). 12 8