prevents the use of tainted evidence at trial, thereby removing a key incentive for
the use of torture and ill-treatment. One of the principal incentives to use torture
is to gain evidence for a subsequent conviction. In theory, if police know that evidence obtained by torture will not be accepted at trial, they will have no choice but
to pursue other, legal means of investigation.77
32. One of the main reasons torture is used is that evidence gained through its
use can, either in law or in practice, be used to secure convictions. Procedural
safeguards that apply from the time of arrest and improvements in investigative
techniques are essential for the prevention of torture. However, the effectiveness
of procedural safeguards and improved investigation techniques will be limited if
there are violations of the exclusionary rule, resulting in torture-tainted evidence
being used to secure convictions.
33. Legal frameworks governing the exclusion of torture evidence vary greatly among
OSCE states, but the majority have some form of domestic legal prohibition on
evidence obtained this way. Progress has been made, and confessions, once
considered the “queen of evidence” in some legal cultures and jurisdictions, now
must be accompanied by corroboration in most countries. All of the 13 countries
surveyed through ODIHR’s questionnaire to CSOs for this report had prohibitions
on evidence obtained by torture. Several states in Central Asia have made positive
legislative reforms in recent years in excluding torture-tainted evidence.78 However,
despite reforms and, in some cases, explicit legal frameworks prohibiting the use
of torture evidence, instances occur when forced confessions are still deemed
77
78
28
Furthermore, as stated by the UN Special Rapporteur on torture, “of particular concern are
attempts to undermine the prohibition of torture or other ill-treatment by using tainted statements
outside of “proceedings”, narrowly defined, for other purposes, such as intelligence gathering or
covert operations. Cooperation in sharing intelligence between States has expanded significantly
in the fight against terrorism and some police, security and intelligence agencies (collectively,
executive agencies) have shown a willingness to receive and rely on information likely to be
obtained through torture and other ill-treatment and to share that information with one another.
The global trend of giving executive agencies increased powers of arrest, detention and interrogation have retracted the traditional safeguards against torture or other ill-treatment and led
to further abuse of individuals. The practice by executive agencies of using information obtained
by torture or other ill-treatment outside court proceedings must be examined to ensure that
the prohibition against torture is upheld, a practice made even more dangerous because of the
secrecy and lack of transparency that surrounds it. Regrettably, some States have diluted the
cardinal principles necessary for preventing and suppressing torture and other ill-treatment,” ibid.,
para. 18).
For example, in November 2017, Uzbekistan President Shavkat Mirziyoev issued a decree prohibiting the use in courts of evidence obtained by torture. See: Human Rights Watch, ‘US: Focus
on Rights as Uzbek Leader Visits’, (2018).
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