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based on the fact that a statement was made. The reliability of the information contained in
the tainted evidence is not implicated if its use is limited in this way.146 For example, when
information is disclosed to interrogators because a statement has been made by an individual
subject to torture, the disclosure of the information in itself is a fact which exists
independently of the truth of the statement. Such facts can be used as evidence of the cause of
an action taken following a confession, such as proof of further arrests triggered by the
disclosure of names or of a purge policy or process. By limiting the permissible uses of such
evidence in this way, concerns about the unreliability of torture-tainted evidence are
attenuated.
76. Third, the exclusionary rule is also meant to preserve the integrity of the proceedings by
preventing the Chamber from according any judicial legitimacy to the abhorrent conduct
which procured the evidence. 147 This concern however must be considered in tandem with the
need to ensure the availability of evidence to prosecute those accused of torture. The Chamber
considers that the limited use of torture-tainted evidence as envisaged would not legitimise
torture, but would permit a full assessment of the alleged conduct in this case. Given the
restrictions on its use, the evidence will assist the Chamber in ascertaining the truth and shed
light on reprehensible and inhuman practices where such occurred, in accordance with the
obligations imposed by the CAT.148 Therefore, the need to ensure the integrity of the
proceedings does not militate against a complete prohibition on the use of torture-tainted
evidence in this case where the Chamber must make determinations of responsibility for acts
of torture.
77. Fourth, most, if not all, of the international jurisprudence cited by the parties and
considered by the Chamber in this decision have arisen where the accused are defending
against allegations contained in torture-derived confessions. Where the accused themselves
have been coerced into confessing, there are manifold fair trial and due process concerns.
146 T. 31 July 2012, p. 108 (President: "[T]he Chamber has maintained its position firmly that it shall always
follow [the CAT]. [ ... ] And during these proceedings, the Chamber shall not allow parties to refer to the content
of any of the confessions that were extracted by torture because the contents of the confessions were somehow
the result of tortures. And if parties wish to refer to other annotations or the dates on the confessions, parties are
allowed to do so.").
147 A and Others, para. 39 (noting appellant's contention that permitting use of torture-tainted statement would
infringe the party's rights and the fairness of the proceedings, shock the judicial conscience, abuse or degrade the
proceedings and involve the state in moral defilement."); Rome Statute, Article 69(7)(prohibiting the use of
evidence obtained in violation of internationally recognized human rights where the violation casts substantial
doubt on the reliability of the evidence or the admission of the evidence would be antithetical to and would
seriously damage the integrity ofthe proceedings.)
148
See e.g., UNCAT, Articles 5, 12.
Decision on Evidence Obtained through Torture, Public, 5 February 2016
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