002/19-09-2007-ECCC-OCIJ-PTC
by torturers or other staff on the margins of the document containing the statement
obtained by torture.
15. The Applicants would emphasise that, the above principle notwithstanding, the
admissibility of any specific material produced as evidence in court is open to challenge,
on the grounds that such material is actually part of the statement obtained by torture, that
such material too was otherwise obtained by torture, or that it is inadmissible on other
grounds provided in international law or, in the case of the ECCC, in Cambodian law.
III. Statements Obtained By Torture May Not Be Admitted Except As Evidence That
the Statements were Made
16. According to various authorities, the rationale behind the exclusionary rule includes: (i)
the public policy objective of removing any incentive to undertake torture anywhere in the
world (i.e. the prevention of torture);10 (ii) the outrage and opprobrium aroused by the
unconscionable and inhumane character of torture;11 (iii) protecting the fundamental rights
of the party against whose interest the evidence is sought to be used;12 (iv) preserving the
integrity of the judicial process;13 and (v) the unreliability of evidence obtained as a result
of torture.14
17. Article 15 of the UNCAT, and the exclusionary rule in international law more generally,
restrict the use of statements obtained by torture to evidence that the statements were
made. Six elements will be elaborated here: i) the ordinary meaning of the language in the
Article 15 exclusionary rule prohibits the use of statements obtained by torture under any
circumstances whatsoever except as evidence that the statements were made; ii) the
drafters of Article 15 rejected all attempts to create a narrower exclusionary rule (ratione
personae), so as to prohibit the use of statements obtained by torture only against the
torture victim; iii) the drafters of Article 15 rejected all attempts to create a narrower
exclusionary rule (ratione materiae), so as to allow unlimited use of statements obtained
by torture, so long as it is against the person accused of torture; iv) article 15 in its entirety
is echoed in international jurisprudence; v) admitting statements obtained by torture
violates the right to a fair trial; vi) admitting the content of torture “confessions” would be
10
M.Nowak & E.McArthur, The United Nations Convention against Torture: A Commentary (Oxford Univ. Press 2008)
Ch.15, para. 2; J.H.Burgers & H.Danelius, The United Nations Convention against Torture: A Handbook on the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Martinus Nijhoff, 1988) 148.
11
See, for example, Lord Hope in A (FC) and others (FC) (Appellants) v. Secretary of State for the Home Department
(Respondent), [2005] UKHL 71 (hereinafter: A and Others), para. 112.
12
Ibid.
13
Burgers and Danelius, p. 148, Lord Bingham in A and Others, para. 39 .
14
M. Nowak and E. McArthur, Ch. 15 para. 2 and Burgers and Danelius, p. 148.
Amicus Curie Application (AI, ICJ, REDRESS)
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