Failure to exclude torture evidence – the exclusionary rule 31. The absolute prohibition on the use of evidence obtained by torture stems from the prohibition on torture itself.73 In order to absolutely prohibit and oppose the use of torture, evidence obtained through the use of torture must also be absolutely prohibited. This is reflected in Article 15 of UNCAT, which prohibits the use of “any statement” in “any proceedings” where it is established that the statement was made as a result of torture. In practice, however, this prohibition is not always upheld. Article 15 is reported to be one of the most frequently flouted provisions of the UNCAT by states where torture remains in practice.74 The ineffectiveness of efforts to put an end to the practice of torture or other ill-treatment is often the result of the fact that evidence tainted by torture or other ill-treatment is admitted during trials. The admission of evidence, including real evidence obtained through a violation of the absolute prohibition of torture and other ill-treatment in any proceedings, constitutes an incentive for law-enforcement officers to use investigative methods that breach these absolute prohibitions.75 It indirectly legitimizes such conduct and objectively dilutes the absolute nature of the prohibition.76 The exclusionary rule 73 74 75 76 The rationale behind the exclusionary rule is manifold and includes the public policy objective of removing any incentive to undertake torture anywhere in the world by discouraging law enforcement agencies from resorting to the use of torture, thus to prevent torture and other ill-treatment. Furthermore, confessions and other information extracted under torture or ill-treatment are not considered reliable enough as a source of evidence in any legal proceeding. Finally, their admission violates due process and fair trial rights, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, A/HRC/25/60 (2014), para. 21. Ibid., para. 17: “Some States interpret “any proceedings” narrowly, to mean judicial proceedings of a criminal nature against the person who has made the statement. More importantly, some insist that the exclusionary rule is triggered only when it is established that the statement was made under torture”. Ibid., para. 30 stating that: “the admission of evidence, including real evidence obtained through a violation of the absolute prohibition of torture and other ill-treatment in any proceedings, constitutes an incentive for law enforcement officers to use investigative methods that breach those absolute prohibitions.” Malcolm D. Evans, “’All the Perfumes of Arabia’: The House of Lords and ‘Foreign Torture Evidence’”, Leiden Journal of Law (2006), 19, p. 1137. 27