EL HASKI v. BELGIUM JUDGMENT
25
Court to confirm that the alleged torture had to be established “beyond
reasonable doubt”, and that, while general evidence of the human rights
situation in the country from where the statement had been obtained might
well be sufficient to trigger an inquiry by the domestic court into the
provenance of the statement in issue, this would rarely be sufficient to
establish “beyond reasonable doubt” that a particular statement had been
obtained using torture: evidence of a direct causal link would in principle be
necessary. They added that the standard of proof “beyond reasonable doubt”
also corresponded to the requirement of Article 15 of the UN Convention
against Torture, under which it had to be “established” that the statement in
question had been made as a result of torture for the exclusionary rule to
apply. That standard was moreover consistent with the approach taken by
other courts and tribunals, in particular the United Kingdom House of Lords
in A. and Others v. Secretary of State for the Home Department (no. 2).
75. The United Kingdom Government further observed that it was clear
from the Court’s case-law – in particular the judgments in Jalloh
v. Germany ([GC], no. 54810/00, § 105, ECHR 2006-IX) and Ashot
Harutyunyan v. Armenia (no. 34334/04, 15 June 2010) – that the
exclusionary rule did not apply where the domestic court was left with a
doubt as to whether the statement had been obtained by torture or where it
concluded that the ill-treatment did not reach the necessary threshold of
severity to be classified as “torture”. It emphasised in this context that the
above-mentioned Article 15 applied only in relation to torture and not to
cases of other prohibited ill-treatment.
In their view, in any event, the domestic courts retained in such cases
some discretion as to the admissibility of and assessment of weight to be
given to such a statement, to be exercised bearing in mind the special status
of Article 3 and the fact that the use of a statement obtained as a result of a
violation of one of the core rights guaranteed by the Convention raised
serious issues as to the fairness of the proceedings. The fairness of the
proceedings had then to be assessed on a case-by-case basis, considering the
proceedings as a whole.
2. NGOs European Center for Constitutional and Human Rights and
REDRESS
76. The third-party interveners pointed out that the “exclusionary rule”,
which prohibited the admission of evidence obtained by torture or cruel,
inhuman or degrading treatment or punishment, was enshrined in a number
of international instruments: 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, Article 15 of the
Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment, Article 10 of the Inter-American Convention to
Prevent and Punish Torture, the Robben Island Guidelines for the
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