government has since acknowledged that Khalid Sheikh Mohammed was waterboarded 183 times.116 The Hamburg court based its decision to allow the evidence on a narrow reading of article 15 of the Convention against Torture, which rules out the use of any statements “established” to have been obtained under torture. In the el Motassadeq case, the court concluded that it was impossible to establish that torture had been used, despite the acknowledgement that the three men were held in secret, incommunicado detention, and despite significant information presented to the court about the torture of terrorism suspects in US custody. The court sentenced el Motassadeq in August 2005 to seven years in prison for membership in a terrorist organization.117 Both the UN Special Rapporteur on Torture, Manfred Nowak, and the Council of Europe’s Commissioner for Human Rights, Thomas Hammarberg, have criticized this approach to the burden of proof in relation to torture evidence. Recalling that the UN Committee Against Torture requires applicants to demonstrate only that their allegations of torture are wellfounded, Nowak argues that: the Hamburg Court failed to shift the burden of proof to those Government authorities who actually invoked the contested evidence. In light of wellfounded allegations of the torture and enforced disappearances of the witnesses in United States custody, it was the responsibility of the Prosecutor (or the Court) to prove beyond reasonable doubt that the testimonies were not extracted by torture, rather than to prove that they were actually obtained by torture (emphasis added).118 Thomas Hammarberg has also expressed his opinion that “the burden to prove beyond a reasonable doubt that evidence has not been obtained under...unlawful conditions should be shifted to the public prosecutor and not rest upon the defendant.”119 Human Rights 116 Scott Shane, “Waterboarding Used 266 Times on 2 Suspects,” The New York Times, April 19, 2009, www.nytimes.com/2009/04/20/world/20detain,html (accessed December 9, 2009). 117 This was a retrial. The Higher Regional Court in Hamburg had sentenced el Motassadeq in February 2003 to 15 years in prison for 3,066 counts of accessory to murder and membership in a terrorist organization. The German Supreme Court overturned this ruling in March 2004 and sent the case back to the Higher Regional Court for a retrial. 118 Manfred Nowak, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/61/259, August 14, 2006, http://www.icj.org/IMG/NowakGAReport2006.pdf (accessed September 18, 2009), para. 64. 119 Thomas Hammarberg, Report of the Commissioner for Human Rights Thomas Hammarberg on his visit to Germany, 9-11 and 15-20 October, 2006, CommDH (2007)14, July 11, 2007, “No Questions Asked” 42