investigators to secure a guilty verdict.94 These lawyers do not raise human rights
abuses before the court and, instead, collude to cover up torture and other illtreatment.95 The International Commission of Jurists, in a 2016 report, highlighted
the phenomenon of pocket lawyers as one of the most serious problems in legal
communities, for instance, in Central Asia.96 There are several reasons why lawyers might work with police and prosecutors in this way, including corruption and
bribery.97 Whatever the reason, suspects, accused persons or defendants who
are appointed “pocket lawyers” as their legal representatives have little chance of
excluding torture evidence or of receiving a fair trial.
45. In most European countries, the application of the exclusionary rule in criminal proceedings and the related procedures tend to be elaborated quite comprehensively.
Nevertheless, there remain challenges in implementing the exclusionary rule for evidence indirectly obtained through torture (i.e., on the application of the “fruit of the
poisonous tree” doctrine),98 and in cases where evidence has been obtained through
the torture of a third party.99 It is clear that the exclusionary rule should apply not
only where the actual defendant is the victim of the treatment contrary to the prohibition of torture or other ill-treatment, but also where third parties are concerned.100
94
See e.g., comments by the International Commission of Jurists to the draft federal law “on amending certain legislative acts of the Russian Federation in regard to ensuring the right of a lawyer”,
(April 2016) ; International Commission of Jurists mission report “The Birth of a New Advokatura
in the Kyrgyz Republic”, 2016 ; Submission of the International Commission of Jurists to the UN
Committee against Torture in relation to Tajikistan, 28 March 2018, page 30.
95 Questionnaire response Nota Bene (Tajikistan) (2019).
96 International Commission of Jurists, op. cit., note 93.
97 For more on the link between corruption and torture or other ill-treatment more broadly, see the
thematic Report of the UN Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, A/HRC/40/59, 16 January 2019: “Corruption within the judiciary has
been found to gravely undermine accountability for human rights violations, including torture or illtreatment (e.g. A/HRC/13/39, para. 71; and CCPR/C/TKM/CO/2, para. 31)” and “Corruption has
been causally linked to the direct infliction of torture and ill-treatment, to the denial of protection
from such abuse, and to the failure to prevent, investigate and prosecute torture or ill-treatment
more broadly. More generally, corruption can permeate government policy, the implementation
of the law and the administration of justice in a way which undermines every aspect of the fight
against torture and ill-treatment”; see also UN Committee against Torture (CAT), CAT/C/52/2,
para. 91: “Corruption and torture and other ill-treatment are inextricably linked”.
98 Fruit of the poisonous tree or ‘derivative evidence’ refers to evidence obtained indirectly as a
result of an illegal act. In the context of torture and ill-treatment, it usually refers to physical evidence obtained as a result of information obtained from torture. For more information, see Fair
Trials and REDRESS, op. cit., note 26, p.23; see also “Report of the Special Rapporteur on torture
and other cruel, inhuman or degrading treatment or punishment”, op. cit., note 73, para. 29.
99 ‘Third party torture evidence’ refers to evidence obtained by torturing someone other than the
defendant in whose trial the evidence is being used, such as torturing a witness or co-defendant
for a statement that incriminates the defendant.
100 Such a conclusion is plainly intended by the wording of article 15 of UNCAT, which provides that
“any statement […] in any proceedings” shall come within the scope of exclusion, and not just one
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