A/HRC/30/37
(a)
Full and complete access by detainees and their legal counsel to the
material related to the detention or presented to the court, as well as a complete copy
of them;
(b)
The ability of detainees to challenge any documents relating to their
case file, including all the arguments and material elements adduced by the
authorities, including the prosecution, the security apparatus and the immigration
authorities, to justify the detention, which may be determinative in establishing the
arbitrariness and lawfulness of his or her detention.
Guideline 12
Admissibility of evidence obtained by torture or other prohibited treatment
77.
Any statement established to have been made or any other evidence obtained as a
result of torture or other cruel, inhuman or degrading treatment shall not be invoked as
evidence in any proceedings, except against a person accused of torture or other prohibited
treatment as evidence that the statement was made or that other such acts took place.
Guideline 13
Disclosure of information
78.
The detaining authority shall provide all relevant information to the judge, the
detainee and/or his or her lawyer. Disclosure is to include exculpatory information, which
includes not only information that establishes an accused person’s innocence but also other
information that could assist the detainee, for example, in arguing that his or her detention
is not lawful or that the reasons for his or her detention no longer apply.
79.
Sanctions, including criminal penalties, shall be imposed on officials who withhold
or refuse to disclose information relevant to the proceedings or who otherwise delay or
obstruct proceedings.
80.
The disclosure of information may be restricted only if the court concludes that:
(a)
A restriction on disclosure is demonstrated to be necessary to pursue a
legitimate aim, such as protecting national security, respecting the rights or
reputation of another individual or protecting public order, health or morals, as long
as such restrictions are non-discriminatory and consistent with relevant standards of
international law;
(b)
It has been demonstrated that less restrictive measures would be unable
to achieve the same result, such as providing redacted summaries of information that
clearly point to the factual basis for the detention.
81.
Any proposed restriction on the disclosure of information is to be proportionate. An
assessment of proportionality requires a balance between how well the non-disclosure
protects the legitimate aims being pursued and the negative impact that this will have on the
ability of the person to respond to the case or to pursue a challenge to the arbitrariness and
lawfulness of detention. If a less restrictive measure is able to achieve the legitimate aim,
the more restrictive measure is to be refused.
82.
If the authorities refuse to make the disclosure and the court does not have the
authority to compel such a disclosure, the court must order the release of the person
detained.
Guideline 14
Burden of proof
83.
18
The State authorities shall establish before the court that:
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