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further still and specifically provides that: "A confession of guilt by the accused shall be valid
only ifit is made without coercion of any kind.,,118
59. Nonetheless, jurisprudence from human rights courts is not unanimous as to whether
evidence obtained through ill-treatment should be, as a general rule, excluded from all
proceedings. The IACtHR has held that whenever it is proven that any form of coercion has
interfered with the spontaneous expression of a person's will, this necessarily requires the
exclusion of that evidence from the judicial proceeding. The Court stressed that statements
obtained under coercion are seldom truthful, because the person tries to say whatever is
necessary to make the cruel treatment or torture stop. I 19 Whereas the ECtHR has held that the
admission of evidence obtained through ill-treatment but falling short of torture, violates fair
trial rights only if it has been shown that the admission of evidence obtained through illtreatment had an impact on the Accused's conviction or sentence. 120
60. In a related body of jurisprudence, international criminal tribunals since Nuremberg have
recognised that evidence obtained through illegal means should be excluded. 121 The ICC and
ad hoc Tribunals have specific rules which prohibit the admission of evidence obtained by
methods which cast doubt on its reliability or where its admission would seriously damage the
integrity of the proceedings. 122 These rules may apply to evidence obtained through torture
and ill-treatment l23 but have also been applied as a procedural safeguard to protect the fair
ACHR, Article 8(3).
Cf Cabrera Garcia and Montiel Flores v. Mexico, paras 165-167; See also, Garcia Cruz and Sanchez
Silvestre v. Mexico, Judgement, 26 November 2013, para 58.
120 Gafgen v. Germany, para. 178 ("[T]he Court considers that both a criminal trial's fairness and the effective
protection of the absolute prohibition under Article 3 [torture and ill-treatment] in that context are only at stake if
it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the
defendant, that is, had an impact on his or her conviction or sentence."); El Haski v. Belgium, para. 85 ("the
admission of such evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3,
but falling short of torture, will only breach Article 6 [fair trial], however, if it has been shown that the breach of
Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on his or
her conviction or sentence.")
121
USA v. Greifelt et al. (RuSHA Case), Judgement of 10 March 1948, reprinted in Trials of War Criminal
Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Vol. V, p. 88 ("During the course
of the trial several witnesses, including some defendants who made affidavits that were offered as evidence by
the prosecution, testified that they were threatened, and that duress of a very improper nature was practiced by an
interrogator. The affidavits referred to were excluded from the evidence and have not been considered by the
Tribunal.")
122 ICC Statute, Article 69(7) ("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"); ICTY RPE 95 ("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"); ICTR RPE 95 (same).
123 Prosecutor v. Lubanga, ICC Pre-Trial Chamber (ICC-01-04-01l06), Decision on the Confirmation of
Charges, 29 January 2007 ("Prosecutor v. Lubanga"), para. 85, quoting H-J Behrens, "The Trial Proceedings" in
118
119
Decision on Evidence Obtained through Torture, Public, 5 February 2016
23
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