EL HASKI v. BELGIUM JUDGMENT
27
they observed that the Committee against Torture seemed to require the
author to demonstrate that his or her allegations were “well founded” –
adding, however, that some legal writers took the view, in the light of that
jurisprudence, that it was sufficient for the alleged victim to submit “some
evidence” of ill-treatment – and that this view was supported by domestic
case-law. In the United States of America, the US District Court for
Columbia had merely verified that the petitioning detainees had made
“sufficient allegations” (Re Guantánamo Detainee Cases, 31 January 2005);
in Canada, the Supreme Court of British Columbia had looked at the
“persuasive nature of the allegations” (India v. Singh, 8 May 1996); and the
Supreme Court of the Netherlands had examined whether the allegations
were “plausible” (Hoge Raad, judgment no. 103.094, 1 October 1996).
In the submission of the third-party interveners, most of the case-law
indicated that the burden of proof could not rest with either the individual or
the State alone (they referred, inter alia, to the Human Rights Committee’s
decision in Saimijon and Bazarov v. Uzbekistan). They said that this had
also been the approach of the House of Lords in A. and others, cited above.
79. The third-party interveners further observed that under Article 15 of
the Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment it had to be “established” that the statement in
question had been obtained by torture for the exclusionary rule to apply, and
that similar wording was used in Article 10 of the Inter-American
Convention to Prevent and Punish Torture and in Article 12 of the United
Nations Declaration on the Protection of All Persons from Being Subjected
to Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, as in the jurisprudence of the Committee against Torture and
the Human Rights Committee. They added that in the case of A. and others,
cited above, the House of Lords had considered the meaning of
“established” in the context of the above-mentioned Article 15: the majority
(four Law Lords out of seven) had interpreted it as requiring evidence to be
excluded where it was “more likely than not” that torture had been used to
obtain it; in the same vein, the Hamburg Court of Appeal, in its El
Motassadeq judgment, cited above, had used certain testimonies despite the
fact that serious doubts remained as to how they had been obtained.
The interveners were, however, convinced by the opinion of the minority
of Law Lords in the above-cited A. and others judgment, to the effect that
the exclusionary rule had to apply where there was a “real risk” that
evidence had been obtained by torture. In their view, the position of the
majority of the Law Lords called into question the sharing of the burden of
proof between the State and the defendant, by imposing on the latter too
high a burden that in most cases would be impossible to meet. In their view,
the fact that the evidence in question was intended to be used against
someone accused of terrorism-related offences could not justify such a shift;
they referred to the Court’s finding in Hulki Güneş v. Turkey (no. 28490/95,
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