002/19-09-2007-ECCC-OCIJ-PTC
Punishment of 9 December 1975 and stressed that there should be conformity between the
meaning of the Declaration and Article 15 of the Draft Convention.’26
32. As a result, the Working Group adopted “by consensus” the following text: ‘Each State
Party shall ensure that any statement which is established to have been made as a result of
torture shall not be invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made.’27
33. Throughout the rest of the drafting process the text of this Article remained unchanged,
and was adopted with the rest of the Convention by the UN General Assembly.
34. In conclusion, the drafting history of Article 15 shows that its current wording is the result
of careful deliberation. The drafters considered allowing the unlimited use of evidence
obtained by torture against suspected torturers, just as the drafters of Article 15’s
predecessor, Article 12 of the Declaration against Torture, had considered limiting the
exclusionary rule to evidence produced against the victim of torture. Both these
approaches were, upon reflection, rejected. The exclusionary rule as it now stands
therefore unequivocally prohibits the use of statements obtained by torture save against
suspected torturers, and prohibits such use save for the purpose of proving that the
statement has been obtained.
35. This point was succinctly made by Lord Bingham in A and Others:
‘The additional qualification [provided for in article 15] makes plain the blanket
nature of this exclusionary rule. It cannot possibly be read … as intended to apply only
in criminal proceedings. Nor can it be understood to differentiate between confessions
and accusatory statements, or to apply only where the state in whose jurisdiction the
proceedings are held has inflicted or been complicit in the torture. It would indeed be
remarkable if national courts, exercising universal jurisdiction, could try a foreign
torturer for acts of torture committed abroad, but could nonetheless receive evidence
obtained by such torture.’
36. The matter was succinctly put in the Report by Mr Alvaro Gil-Robles, the Council of
Europe Commissioner for Human Rights, in his Report on his visit to the United Kingdom
in November 2004 (8 June 2005, Comm DH (2005)6):“torture is torture whoever does it,
26
Comm. on HR, Report of Working Group on a Draft Convention Against Torture and Other Cruel, Inhuman Or
Degrading Treatment Or Punishment, E/CN.4/1367, 5 Mar. 1980, para. 82. Reproduced in Comm. on HR, Report on the
Thirty-Sixth Session (4 Feb.-14 March 1980), UN Doc. E/1980/13, E/CN.4/1408, para. 205, pp. 52-73, para. 83.
27
Ibid., para. 84.
Amicus Curie Application (AI, ICJ, REDRESS)
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