except against a person accused of torture as evidence that the statement was
made, (…), and recognizes that adequate corroboration of statements, including
confessions, used as evidence in any proceedings constitutes one safeguard for
the prevention of torture and other cruel, inhuman or degrading treatment or
punishment….”51
34.
Finally, the history of the exclusionary rule is also reflected in the rules of procedure
and evidence adopted for the various international criminal courts, which enshrine this
principle in line with their mandate to uphold international human rights protections for
defendants. In 1994, the International Criminal Tribunal for the Former Yugoslavia
(ICTY) adopted a rule on the admissibility of evidence obtained in violation of human
rights law. The rule, which was later amended in 1995 and 1997 provides:
“No evidence shall be admissible if obtained by methods which cast substantial
doubt on its reliability or if its admission is antithetical to, and would seriously
damage, the integrity of the proceedings.”52
35.
Likewise, the International Criminal Tribunal for Rwanda (ICTR) adopted an identical
provision to that of the ICTY.53
36.
The Rome Statute of the International Criminal Court (ICC), which was adopted in 1998
and entered into force on 1 July 2002, similarly provides:
“In respect of an investigation under this Statute, a person…[s]hall not be
subjected to any form of coercion, duress or threat, to torture or to any other form
”
of cruel, inhuman or degrading treatment or punishment… 54
“Evidence obtained by means of a violation of this Statute or internationally
recognized human rights shall not be admissible if:
(a) The violation casts substantial doubt on the reliability of the evidence; or
(b) The admission of the evidence would be antithetical to and would
seriously damage the integrity of the proceedings.”55
B.
ABSOLUTE AND NON-DEROGABLE NATURE
37.
The principle that States may not use information obtained by torture is part of the
general prohibition of torture and other cruel, inhuman and degrading treatment or
punishment.56 Like the other obligations in relation to the general prohibition against
torture, the exclusionary rule is absolute and non-derogable. This was confirmed by
the Human Rights Committee in its General Comment No 32:
“…as article 7 is non-derogable in its entirety, no statements or confessions or, in
principle, other evidence obtained in violation of this provision may be invoked as
evidence in any proceedings covered by article 14, including during a state of
51
Human Rights Council Resolution, UN doc. A/HRC/RES/13/19, at § 7 (Adopted on 26 March 2010).
International Criminal Tribunal for the Former Yugoslavia, Rules of Procedure and Evidence, IT/32/Rev.44
(1994 – as amended 1995 and 1997), rule 95.
53
International Criminal Tribunal for Rwanda, Rules of Procedure and Evidence, ITR/3/Rev.1 (1995 – as
amended 1998), rule 95.
54
Rome Statute of the International Criminal Court, article 55(1)(b).
55
Rome Statute of the International Criminal Court, article 69(7).
56
Human Rights Committee, General Comment No. 20, UN Doc. HRI/GEN/1/Rev.7, at § 12 (10 March 1992);
Committee Against Torture, Communication No. 193/2001, P.E. v. France, Views adopted on 21 November
2002, UN doc. CAT/C/29/D/193/2001, 19 December 2002 at § 6.3; Committee against Torture, Communication
No 219/2002, G.K. v. Switzerland, Views adopted on 7 May 2003, UN doc. CAT/C/30/D/219/2002, § 6.10.
52
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