EL HASKI v. BELGIUM JUDGMENT
31
ensuring that it left no visible signs on the victim. All too frequently, those
who were charged with ensuring that torture did not occur – courts,
prosecutors and medical personnel – were complicit in its concealment. The
Court observed that, in a criminal justice system where the courts were
independent of the executive, where cases were prosecuted impartially, and
where allegations of torture were conscientiously investigated, one might
conceivably require a defendant to prove to a high standard that the
evidence against him had been obtained by torture. However, in a criminal
justice system which was complicit in the very practices which it existed to
prevent, such a standard of proof was wholly inappropriate (ibid., § 276).
87. As to the standard of proof for the application of the exclusionary
rule in respect of evidence allegedly obtained as a result of treatment
contrary to Article 3, a number of situations may arise. Firstly, such
treatment may be imputed to the authorities of the forum State or to those of
a third State and the victim may be the actual defendant or a third party.
Furthermore, in some cases the Court itself (see, for example, Levinta
v. Moldova, no. 17332/03, 16 December 2008), the courts of the forum State
(see, for example, the Harutyunyan judgment, cited above) or the courts of
the third State have confirmed the veracity and nature of the alleged illtreatment; in other cases there has been no such judicial decision.
88. The Court will not proceed to examine each of those situations. It is
sufficient in the present case for it to observe that, at least in a case where a
defendant asks the domestic court to exclude statements obtained in a third
State as a result, in his submission, of treatment contrary to Article 3
inflicted on another individual, it is appropriate to follow the approach set
out in the Othman judgment, cited above. Accordingly, in any event, where
the judicial system of the third State in question does not offer meaningful
guarantees of an independent, impartial and serious examination of
allegations of torture or inhuman and degrading treatment, it will be
necessary and sufficient for the complainant, if the exclusionary rule is to be
invoked on the basis of Article 6 § 1 of the Convention, to show that there is
a “real risk” that the impugned statement was thus obtained. It would be
unfair to impose any higher burden of proof on him.
89. The domestic court may not then admit the impugned evidence
without having first examined the defendant’s arguments concerning it and
without being satisfied that, notwithstanding those arguments, no such risk
obtains. This is inherent in a court’s responsibility to ensure that those
appearing before it are guaranteed a fair hearing, and in particular to verify
that the fairness of the proceedings is not undermined by the conditions in
which the evidence on which it relies has been obtained (see, mutatis
mutandis, Stojkovic v. France and Belgium, no. 25303/08, 7 April 2011,
§ 55).
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