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5.4.2. Derivative Evidence
63. In addition to evidence established to have been obtained by torture, parties may seek to
use other evidence derived from tainted evidence, that is evidence which was not itself the
product of torture, but was nonetheless discovered through torture-tainted evidence. 127
Cambodian law is silent on the use of derivative evidence an.d Article 15 refers exclusively to
the exclusion of "any statement which is established to have been made as a result of torture"
without further precision. For these reasons, the Chamber considers the preparatory work of
the CAT and other international jurisprudence.
64. The preparatory work of Article 15 suggests that the drafters did not intend to
encompass derivative evidence within the exclusionary rule. An early draft of Article 15
submitted by the International Association of Penal Law supported the exclusion of "[a]ny
oral or written statement or confession obtained by means of torture or any other evidence
derived therefrom.,,128 The underlined language was excluded from the final version of Article
15, suggesting the drafters intentionally omitted derivative evidence.
65. The Chamber further notes that in Cambodia, as in most civil law countries, the general
rule is that all evidence is admissible. 129 This weighs in favour of permitting the invocation of
derivative evidence. However, there is no consensus among the. international sources as to
whether the exclusionary rule should apply to derivative evidence and, if so, under what
circumstances. 130
66. The European Court of Human Rights addressed the issue in a case in which it found
that during police investigations an accused was subjected to a method of interrogation
amounting to inhuman treatment not reaching the threshold of torture. The Court declined to
categorically extend the exclusionary rule to derivative evidence obtained under these
circumstances, instead finding that the invocation of such evidence will render a proceeding
unfair only if it has an impact on an Accused's conviction or sentence. l3l Where evidence
127 A typical example of such evidence would be the body of the victim found after the authorities had tortured
the suspect to confess as to its location. See Gafgen v. Germany, paras 15-16,73-74, 171..
128 UN Doc. E/CNAINGO/213, Draft Convention for the Prevention and Suppression of Torture, Submitted by
the International Association of Penal Law, 15 January 1978 (emphasis added).
129 Cambodian Code of Criminal Procedure, Article 321; Internal Rule 87(1).
130
Gafgen v. Germany, paras 69-74, 174 ("The Court notes that there is no clear consensus among the
Contracting States to the Convention, the courts of other States and other human rights monitoring institutions
about the exact scope of application of the exclusionary rule.")
131
Gafgen v. Germany, para. 178; See also, JaUoh v. Germany (Application no. 54810100), ECtHR Grand
Chamber, JUdgment, 11 July 2006, paras 104-108.
Decision on Evidence Obtained through Torture, Public, 5 February 2016
25
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