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Chapter II: The components of the exclusionary
rule: international standards and local realities
The prohibition on reliance on ‘torture evidence’ has
a crucial position in international human rights law
and in the overall prohibition on torture. In this
Chapter we dissect the prohibition – outlining its key
components as enunciated in international and
regional treaties, their interpretative texts and in the
judgments of human rights courts and decisions of
treaty monitoring bodies. We also draw on our
II.1
comparative study of 17 countries to examine how
different countries have sought to protect these
components of the prohibition (if at all) with the aim
of identifying some of the challenges which arise in
the course of applying the rule and consequential
gaps in the protections against reliance on
‘torture evidence’.
The form of the prohibition on ‘torture evidence’
II.1.1 Monist and dualist systems
The force of treaty obligations at the domestic level
differs between the 17 countries we examined.
i)
ii)
In some countries, such as France, international
law does not need to be translated into domestic
law to have legal effect; it has legal effect
automatically as a result of ratifying the treaty.34
The French Administrative Supreme Court
(Conseil d’Etat) has specifically recognised that
Article 15 of the UN Convention Against
Torture has direct effect at the national level,
allowing defendants to rely on this provision
directly to exclude evidence.35 Similarly, in
Kenya, the Constitution provides that ‘general
rules of international law form part of the law of
Kenya’.36 The Kenyan High Court has specifically
confirmed that this includes customary
international law and the prohibition on ‘torture
evidence’.37
In other countries, the prohibition on reliance
on ‘torture evidence’ under treaty provisions
such as Article 15 of the UN Convention
Against Torture does not have automatic legal
effect at a domestic level. Sometimes, all that is
required is a simple notification process to give
domestic legal effect to a treaty provision. In
Spain, for example, the publication of the UN
Convention Against Torture in the Official
Gazette had the effect of incorporating it into
national law.38 In other countries, provisions of
international treaties only become binding under
domestic law if they are introduced in domestic
legislation.39 The South African Constitution,
for example, provides that an international
agreement becomes ‘law in the republic when it is
enacted into law by national legislation’.40 This is also
the case in Thailand41 and the United
Kingdom.42
Even if, as a matter of legal principle, Article 15 of
the UN Convention Against Torture (or equivalent
provisions of other treaties) has automatic legal effect
domestically, including the provision in specific
national legislation can bolster that protection. For
example, this has the advantage of drawing the
attention of lawmakers to areas in which treaty
obligations may conflict with existing domestic laws,
and incorporates these standards into more readily
accessible domestic law. For this reason, we focus on
the domestic legal regimes when examining how the
countries studied have protected against reliance on
‘torture evidence’.
II.1.2 Express or implied regimes
Of the 17 countries examined, 16 do have some form
of exclusionary regime for evidence obtained by
torture. These domestic legal regimes governing the
exclusion of ‘torture evidence’ fall into two broad
categories:
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