01200833 E350/8 evidence was obtained through torture must be made by the Chamber as part of its duty to ensure the fairness of the proceedings. 87 After the Chamber has made a preliminary determination that there is a real risk that torture was used to obtain a statement, any party seeking to rely upon such evidence may rebut this preliminary determination in particular upon a showing of specific circumstances negating this risk. 88 The Chamber considers this allocation of burden will effectively reduce the risk that tainted evidence will be impermissibly invoked at trial. 5.2.3. Standard and Burden on Rebuttal 37. The Supreme Court Chamber, while noting that the standard and burden of proof are not settled internationally, held that a preliminary assessment that there exists a real risk that evidence was obtained through torture may be rebutted by establishing, on a balance of probabilities, that torture was not used. 89 This finding is explicitly restricted to one specific situation, namely the introduction of S-21 statements into evidence at the appeal hearing under circumstances specific to Case 002/01. 90 The Trial Chamber therefore considers that the statement as to the standard of proof on rebuttal was obiter dictum. 38. The Trial Chamber does not find support in international jurisprudence to support a separate standard of proof on rebuttal. 91 Further, the Trial Chamber considers that applying a different standard of proof on rebuttal would unnecessarily complicate the assessment of evidence alleged to be tainted by torture, considering there are already separate standards at the stages of preliminary assessment of torture when a document is profferred and later in assessing the charges at the close of evidence. Accordingly, where the Chamber has found a real risk that torture was used to obtain evidence, and a party nonetheless seeks to use that evidence, the Chamber will give the parties an opportunity to present evidence or make submissions showing the evidence was not obtained by torture. Upon an assessment of all 87 Although placing an initial burden on an accused to produce evidence of torture in a case where charges were based on allegedly torture-tainted statements incriminating the accused, the ECtHR has held that a court must then satisfY itself that there was no real risk that torture was used to obtain the proffered evidence and that it is inherent to a court's responsibility to ensure that those appearing before it are guaranteed a fair hearing, and in particular to verify that the fairness of the proceedings is not undermined by the conditions in which the evidence on which it relies has been obtained. See El Haski v. Belgium, paras 88, 89; Cf OCD Order, para. 16. 88 Alternatively, such evidence may be invoked if it is shown to qualify under the exception contained in Article 15. See infra. Section 5.5. 89 See SCC Decision, paras 49,58. 90 The Supreme Court Chamber did not, however, apply this standard of proof on rebuttal to the documents proposed for the appeal hearing. See SCC Decision, paras 58,59,68. 91 Although A and Others considered an initial standard of a balance of probabilities was appropriate to establish torture was used, it did not apply that standard to rebuttal. Decision on Evidence Obtained through Torture, Public, 5 February 2016 15