30.
In 1992, the Special Rapporteur on Torture referred to the admissibility of evidence
obtained under torture as one of the elements which contributes to impunity and makes
torture feasible. He indicated:
“If each and every State took such measures and vigorously supervised their
implementation by the various branches of State authority, no torturer could do his
dirty work in the expectation that he could evade punishment. For it is impunity
which makes torture attractive and feasible. Far too often the Special Rapporteur
receives information… that courts admitted and accepted statements and
confessions in spite of the fact that during trial the suspect claimed that these had
been obtained under torture, …that, consequently, those who are responsible for
the prohibited acts go unpunished and those who are the victims of these acts are
46
left without an effective remedy and without appropriate redress.”
31.
The Special Rapporteur on Torture has also referred to the exclusionary rule in
subsequent reports.47 Likewise, other UN mandate holders such as the Special
Rapporteur on the Promotion and Protection of Human Rights and Fundamental
Freedoms while Countering Terrorism has also referred to this important principle.48
32.
In 2007, the Human Rights Committee adopted its General Comment No. 32 on Article
14 of the ICCPR on the right to equality before courts and tribunals and to a fair trial,
and observed further:
“A fortiori, it is unacceptable to treat an accused person in a manner contrary to
article 7 of the Covenant in order to extract a confession. Domestic law must
ensure that statements or confessions obtained in violation of article 7 of the
Covenant are excluded from the evidence, except if such material is used as
evidence that torture or other treatment prohibited by this provision occurred
(…).”49
33.
Moreover, in their annual resolutions on torture, the UN General Assembly and the
Human Rights Council have also adverted to the exclusionary rule. For example, in
2009 and 2010, respectively, the following wording was adopted by consensus:
“The General Assembly…
13. Strongly urges States to ensure that no statement that is established to
have been made as a result of torture is invoked as evidence in any proceedings,
except against a person accused of torture as evidence that the statement was
made….”50
“The Human Rights Council,
7. Strongly urges States to ensure that no statement that is established to have
been made as a result of torture is invoked as evidence in any proceedings,
46
Above note 5 at § 589 (emphasis added).
See e.g. Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, UN doc. A/54/426 at §12 (1 October 1999).
48
Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while
Countering Terrorism, UN doc. A/63/223, at § 31-33 (6 August 2003) and Joint Study on Global Practices in
Relation to Secret Detention in the Context of Countering Terrorism of the Special Rapporteur on the Promotion
and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, the Special
Rapporteur torture and other cruel, inhuman or degrading treatment or punishment, the Working Group on
Arbitrary Detention and the Working Group on Enforced Disappearences, UN doc. A/HRC/13/42, at § 292 f (19
February 2010).
49
Human Rights Committee, General Comment No. 32, UN doc. CCPR/C/GC/32, at § 41(2007).
50
General Assembly Resolution, UN doc. A/RES/64/153, at § 13 (Adopted on 18 December 2009).
47
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