GUIDE ON ANTI-TORTURE LEGISLATION Exclusionary rule Primary elements • National legislation is to exclude explicitly evidence obtained by torture in all proceedings. • National legislation is to reflect that the burden of proof is on the prosecution to show that evidence was collected lawfully, where there is an allegation that evidence was obtained by torture. • National legislation is to reflect that the exclusionary rule applies to evidence obtained by CIDTP. • National legislation is to reflect that the exclusionary rule applies to all forms of evidence. Jurisdiction Primary elements • In establishing jurisdiction, legislative provisions are to include all heads of jurisdiction in article 5 of the Convention, namely: ◦◦ The territoriality and flag principle over alleged cases of torture in any territory under a State’s jurisdiction; ◦◦ Jurisdiction for cases committed by a State’s national; ◦◦ Universal jurisdiction over any alleged offender present in the territory under a State’s jurisdiction. Recommended elements • National legislation provides for jurisdiction over cases where a State’s national has been a victim of torture. Complaints, investigations, prosecutions and extradition Primary elements • National legislation is to include: ◦◦ Provisions ensuring that individuals can exercise their right to complain to an independent body and to be protected against reprisals; ◦◦ Prompt and impartial investigations of all allegations of torture are available and undertaken; ◦◦ Provisions to prosecute alleged perpetrators of torture, or extradite them, subject to the prohibition on refoulement; ◦◦ Provisions on the extradition of alleged torturers, subject to the prohibition on refoulement; ◦◦ Provisions on mutual judicial assistance in criminal proceedings related to torture are to be included. 60