A/HRC/25/60
contradiction to the object and purpose of the absolute prohibition of such acts,
including during interrogation. There is a clear affirmative obligation to prevent
torture and ill-treatment that includes actions the State takes in its own jurisdiction to
prevent torture or other ill-treatment in another jurisdiction. Thus, an interpretation
focused on the objective of the norm demands that the collection, sharing and
receiving of tainted information be banned, because otherwise the purpose of
preventing and discouraging torture and other ill-treatment is negated. It is not
sufficient to ensure that the judicial process is free from the taint of torture; torture
must not be acquiesced in, encouraged or condoned in any manifestations of public
power, whether executive or judicial.
74.
The standards of the exclusionary rule should therefore be interpreted in good
faith and applied by way of analogy to the collection, sharing and receiving of
information tainted by torture, including information obtained by other ill-treatment,
even if not used in “proceedings” as narrowly defined.
75.
Governments cannot condemn the evil of torture and other ill-treatment at the
international level while condoning it at the national level. It is hypocritical of States
to condemn torture committed by others while accepting its products. Any use of
information tainted by torture, even if the torture has been committed by agents of
another State, is an act of acquiescence in torture that compromises the responsibility
of the State that uses those products and leads to individual and State complicity in
acts of torture. Complicity in torture is a direct breach of international human rights
obligations under the Convention, the International Covenant on Civil and Political
Rights and other treaties concerning human rights and international humanitarian
law, as well as under customary international law and according to the general
principles of the responsibility of States for internationally wrongful acts.
76.
The collection, sharing and receiving of information from States where there is
a real risk of torture or other ill-treatment suffice to demonstrate State responsibility
through complicity. States have to assess the situation and the possible real risk of acts
of torture or other ill-treatment and must refrain from “automatic reliance” on
information from the intelligence services of other countries, which is incompatible
with the object and purpose of the absolute prohibition of torture and other illtreatment and the obligation to prevent and discourage torture and other illtreatment.51
77.
This applies in particular to situations of systematic torture where the State
cannot avoid knowledge or imputed knowledge of the real risk of such acts, and other
situations where it cannot be established that there is no such risk. In cases of
systematic torture, the receiving State must presume that the information is a product
of torture and therefore refrain from collecting, sharing or receiving such tainted
information. Non-compliance with those principles makes the State complicit in acts
of torture or other ill-treatment and responsible for an internationally wrongful act.
78.
Information tainted by torture, even when not intended to be used in court
proceedings, must therefore be treated in the same way that a court would treat
evidence obtained by torture or other ill-treatment. The Special Rapporteur reiterates
that every use of such information is an encouragement of torture or ill-treatment
after the fact and therefore establishes complicity in such acts and a failure to prevent
the next round of torture or other ill-treatment.
79.
States cannot resort to diplomatic assurances as a safeguard against torture or
other ill-treatment, where there is a real risk of such acts. Such assurances are
51
18
See e.g. CAT/C/DEU/CO/5, para. 31 and CAT/C/DEU/QPR/6, para. 38.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents