01200835
E350/8
Prosecutors. 93 Such a proposal runs contrary to the plain language of Article 15, which
provides that torture-tainted evidence "shall not be invoked as evidence in any proceedings."
The language of the Article is not limited to the judgement phase but applies with equal force
to the presentation of evidence and the questioning of witnesses during the trial. Furthermore,
if the Chamber were to allow the parties to invoke possibly torture-tainted evidence
throughout this trial, the damage to the integrity of the proceedings will have been done.
Removing from consideration, torture-tainted evidence at the judgement phase cannot remedy
that damage. For the parties and the public will have seen the product of torture relied on for
its truth, normalising the acquisition and invocation of that evidence at trial and diverting the
Chamber's inquiry into the ascertainment of the truth.
5.3.2. Right to Present Exculpatory Evidence
42. The Chamber next considers the NUON Chea Defence submission that the exclusionary
rule applies only to state authorities (the Co-Prosecutors in this case) and cannot therefore be
interpreted to apply to the Defence, particularly where it seeks to invoke torture-tainted
evidence it asserts is exculpatory.94
43.
Contrary to the Defence submission, the Chamber considers that the CAT is not limited
in application to state authorities. The ordinary meaning of Article 15 suggests that it has
general application and provides no indication that it should be read to be limited in this way.
The drafters of the Convention have made an explicit exception for a narrow personal and
substantive scope to the exclusionary rule. This very narrow exception concerns proceedings
against persons accused of torture. It is meant to avoid a reading of the exclusionary rule that
would have the effect of preventing the prosecution of those liable for acts of torture. The
language of the rule is not limited to the prosecutor, and reading such a limitation into the
Article is unjustified.
44. In addition, the exclusionary rule must be seen as complementary to a corpus of general
and treaty rules proscribing torture. Because of the importance of the values it protects, the
prohibition of torture in international law constitutes a clear peremptory norm. 95 International
93
Co-Prosecutors' Submissions, para. 22 ("The Co-Prosecutors submit that the only practical and efficient
manner to deal with this evidence is for the Chamber to wait to the completion of all evidence in the case [ ... ]").
94
NUON Chea Defence's Submissions, para. 17.
95
Othman (Abu Qatada) v. United Kingdom, para. 266 ("Few international norms relating to the right to a trial
are more fundamental than the exclusion of evidence obtained by torture."); Cabrera Garcia and Montiel Flores
v. Mexico, para. 165.
Decision on Evidence Obtained through Torture, Public, 5 February 2016
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