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truth; (3) preserving the integrity of the proceedings; and (4) protecting the Accused's right to
• l'
a Co'
laIr tna
, mc1ud'mg due process. 142
74. First, Article 15 is meant to discourage the use of torture by state authorities for the
purpose of obtaining information. As explained by one commentator involved in the drafting
of the Convention, "if a statement made under torture cannot be invoked as evidence, an
important reason for using torture is removed, and the prohibition against the use of such
statements as evidence before a court can therefore have the indirect effect of preventing
torture".143 However, the underlying reason for excluding torture-tainted evidence is to
prevent reliance on such evidence to gain a benefit with a view to preventing torture. This
purpose would be defeated if in prosecuting those responsible for torture, all uses of such
evidence were prohibited, thereby favouring individuals accused of this crime. Such a
situation would not serve as a disincentive to the use torture in future. As noted by the CoInvestigating Judges in their order in this case, "barring [any] use of such information in the
context of this case would not deter the would-be torturer but would instead allow those who
are accused of torture to use the laws designed to prevent torture to shield themselves from
liability."I44 The Chamber considers therefore that allowing certain information to be used
against an alleged torturer does not run counter to the general purpose of Article 15.
75. Second, the exclusionary rule is meant to protect the right to a fair trial by, inter alia,
preventing the invocation of unreliable evidence. More precisely, it is a mechanism to prevent
the use of statements made by an accused or by others under torture as evidence of the
truthfulness of admissions or other matters asserted in the statement, because in such
circumstances this evidence is intrinsically unreliable. 145 The Chamber considers that
information contained within a torture-tainted statement may be used to establish facts other
than the truth of the statement, but only for the purpose of determining what action resulted
UN Special Rapporteur 2014 Report, para. 21; Burgers and Danelius, p. 148 ("The rule laid down in article
15 would seem to be based on two different considerations. First of all, it is clear that a statement made under
torture is often an unreliable statement; and it could therefore be contrary to the principle of 'fair trial' to invoke
such a statement as evidence before a court.").
143 Burgers and Danelius, p. 148.
144 OeIl Order, para. 24.
145 T. 28 May 2009, pp. 7-9; E74, p. 3; E185, para. 21; See also, Burgers and Danelius, p. 148 (when such
evidence is invoked against an accused, "the intention is not to prove that the statement is a true statement. The
purpose is rather to prove that a specific statement was made under torture [ ... ]"); UN Doc. Al611259, UN
General Assembly, Torture and other cruel, inhuman or degrading treatment, 14 August 2006, para. 45; See also,
Rome Statute, Article 69(7) which prohibits the admission of evidence obtained by means of a violation of the
Rome Statute or internationally recognized human rights 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."
142
Decision on Evidence Obtained through Torture, Public, 5 February 2016
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