01200848
E350/8
Likewise, where the torture-tainted statements of third parties implicating the Accused are put
forward as evidence of guilt, the accused have few avenues to challenge that evidence. The
unreliability of these statements precludes judicial consideration of the statements for their
truth. As noted above, however, the Chamber considers that in the circumstances presented
here, the use of torture-tainted statements for the limited purpose of determining what action
resulted based on the fact that a statement was made, does not violate the due process or fair
trial rights of the Accused. 149
78. The Chamber considers that the above reading of Article 15 adequately protects the
object and purpose of the exclusionary rule while at that same time permitting the prosecution
of those charged with torture. The Chamber now considers the practical application of these
principles to the evidence in this case.
5.5.1. Evidence in Case 002102 for which there exists a real risk that it was obtained
under torture
79. The Chamber recalls its findings in the Case 001 Judgement, confirmed on appeal, that
torture was used to obtain confessions at S-21, that where prisoners did not give satisfactory
confessions more torture was ordered, and that much of the information contained in the
confessions was fabricated. 150 While res judicata is not applicable to the Case 001 Judgement
[mdings with regard to the Accused in this case because they were not parties to the Case 001
proceedings, the Chamber considers that these findings demonstrate a real risk that any
confessions obtained at S-21 were the result of torture. In further relation to security centres,
the Co-Investigating Judges have considered, in their assessment of the existence of sufficient
evidence to remit Case 002 to the Trial Chamber that torture was used at other security
centres to obtain confessions and "to identify members of their 'network' for arrest".151
Consequently, the Chamber is satisfied that a real risk exists that torture was used at S-21 and
other security centres to obtain confessions. The Chamber will not permit the invocation of
149 The Supreme Court Chamber states that it concurs with the judicial authorities that hold that the necessities
of prosecution do not justify the use of statements obtained through torture. See SCC Decision para. 67. It
appears to have limited its analysis to the general exclusionary rule in Article 15 and not to have interpreted the
exception contained in Article 15. In addition, none of the authorities cited by the Supreme Court Chamber
involved a prosecution of the Accused on charges of torture to which the exception to Article 15 explicitly
applies.
150 Case 001 Judgement, paras 176, 177, 179.
151 Closing Order, paras 1408, 1411.
Decision on Evidence Obtained through Torture, Public,S February 2016
30
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