to the individual against whom the evidence is invoked without imposing a burden of proof on either party that they would not be able to discharge.”106 65. Finally, the Special Rapporteur on Torture has recently explained that: “It is not enough for suspects to indicate that their confession was obtained under torture; they have to establish the ill-treatment. Since torture almost always takes place behind close doors, lacks any witnesses except its perpetrators, and any independent forensic expertise to document traces of abuse is beyond the survivor’s reach, this requirement is the most difficult to satisfy and appears almost taunting. In order for the safeguard against the admissibility of evidence obtained under torture to have any realistic prospect of unfolding, a shift of the burden of proof regarding allegations has to take place.”107 National jurisprudence 66. A great many variations on the exclusionary rule have been developed by national courts.108 However, the seminal national cases relating to the exclusionary rule in recent years are Mounir el Motassadeq 109 in Germany and A & Others v Secretary of State for the Home Department in the UK.110 67. El Motassadeq was charged by the German authorities and convicted in the Hanseatic Higher Regional Court (Hamburg) in 2003 for complicity in the World Trade Center attacks in New York in 2001. His conviction was, however, quashed by the Federal Court of Justice because it was based largely on testimony from a person or persons detained by the United States who may have been tortured. What is more, this evidence was the subject of a secrecy order by the Executive.111 During the retrial, the Hamburg court requested access to the relevant witnesses or full records of their interrogations. In response, the US provided only summary records of interrogation and declined to reveal the witnesses’ whereabouts. The Hamburg court eventually admitted the summary records into evidence, holding that it could not be established that the relevant testimony had been given as a result of torture, as required by Article 15 of the UNCAT.112 El Motassadeq’s Appeals to higher courts were ultimately unsuccessful.113 68. The German courts’ decisions in relation to the exclusionary rule are disappointing for the leeway they give governments to overlook allegations of torture in admitting evidence. Placing too much emphasis on the word “established” (or “verified” in Article 10 of the IACPPT) preserves flexibility for States wishing to adduce evidence of dubious provenance, but constitutes an abject failure to respect the protective intent of Article 15 of the UNCAT and its equivalents. This view is also supported by the Special Rapporteur on Torture, who held that “the Hamburg Court should have applied Article 106 As above, § 47. Study on the phenomena of torture, cruel, inhuman or degrading treatment or punishment in the world, including an assessment of conditions of detention, UN doc. A/HRC/13/39/Add.5, at § 98. (5 February 2010). 108 See e.g. Decision of High Court Prague (2 To 123/2001), Chief Military Prosecutor v. Issacharov (Decision of Israeli Supreme Court of April 5, 2006 – not yet published) or STC 114/1984 (Spanish Constitutional Court Decision of 29 November1984). 109 For full citations of judgments, see Timo Kost, Mounier el Motassadeq: A Missed Chance for Weltinnenpolitik? German Law Journal, Vol. 8 No. 4, p 443, available at: http://www.germanlawjournal.com/pdfs/Vol08No04/PDF_Vol_08_No_04_443-454_Developments_Kost.pdf 110 [2005] UKHL 71, 8 December 2005. 111 As above, § 444. 112 See Nowak, above note 41, at p 524. 113 See Kost, above note 109, at pp 445-447. 107 16