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purview of the Chamber to address any matter that is relevant to this trial, particularly where
such matter has been presented on multiple occasions and will continue to confront these
proceedings moving forward. Since the briefmg of this issue, the Co-Prosecutors and the
NUON Chea Defence have invoked, or attempted to invoke, evidence that may have been
obtained through torture in a variety of circumstances, not limited to the specific scenario
raised by the NUON Chea Defence and addressed in this decision. 79 It is therefore in the
interests of judicial efficiency to address the issue fully, instead of in a piece-meal fashion.
This remains the case following the SCC Decision which did not address torture-tainted
evidence obtained from locations other than S-2l and left open several issues, including an indepth analysis of the exception contained within Article 15.
30. The Chamber also notes that it has already admitted more than five hundred S-2l
confessions, prison notebooks, and other evidence which may contain evidence obtained by
torture. In assessing whether these documents have met the minimum standards of relevance
and reliability (including authenticity) the Chamber has considered their permissible uses
under the law. 8o In Case 001 and Case 002/01, such documents were considered relevant to
facts such as the identity and number of persons who were arrested and placed in Security
Centres. The question now presented is whether these documents may be invoked (i.e. used)
for other evidentiary purposes in addition to those previously accepted, and if so, how this
may be done. Therefore the Chamber will not reconsider the admissibility of such documents,
but will instead clarify their permissible evidentiary uses as the admission of this evidence
was necessarily subject to those uses allowed by law. 81
31. The Chamber must first determine the applicable burden and standard or proof to
establish that evidence is the result of torture. Once evidence is established, for evidentiary
purposes, to have been obtained by torture, the question then arises as to its permissible uses
with particular regard to the Accused's right to a fair trial.
5.2. Standard and Burden of Proof
32. Subject to the exception to be examined below, Article 15 of the CAT provides that
evidence "which has been established" to be the result of torture shall not be invoked as
evidence in any proceedings. It does not set out the relevant standard of proof or indicate who
79
80
81
See infra. Section 5.5.2.
In admitting these documents, the Chamber made no reliance on these documents to establish facts.
Internal Rule 87(3)(d).
Decision on Evidence Obtained through Torture, Public, 5 February 2016
13
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