A/HRC/25/60
(h)
Ensure that closed material procedures comply with the exclusionary
rule and enable the individual effectively to challenge admissibility of evidence,
including evidence from the security services;
(i)
Elaborate a rule that protects legitimate State secrets adequately and at
the same time does not prevent a thorough examination of whether torture or other
cruel, inhuman or degrading treatment or punishment has taken place.
83.
Regarding the use by executive actors of information tainted by torture, all
States should:
(a)
Submit all actions by the executive branch of Government, including the
collection, sharing and receiving of information, to independent and impartial review
under the obligations of States to respect the absolute prohibition of torture and other
cruel, inhuman or degrading treatment or punishment, including the obligation to
prevent and discourage torture and other ill-treatment;
(b)
Ensure that if States request foreign intelligence services to undertake
activities on their behalf, all legal standards regarding the absolute prohibition of
torture or other cruel, inhuman or degrading treatment or punishment shall apply;
(c)
Reiterate that no exceptional circumstances may be invoked as a
justification for torture or other cruel, inhuman or degrading treatment or
punishment;
(d)
Restrain from creating a market for the fruits of illegal and abhorrent
interrogation practices by collecting, sharing or receiving information obtained by
torture or other cruel, inhuman or degrading treatment or punishment;
(e)
Interpret the standards outlined by the exclusionary rule in light of the
objective of the rule to prevent and discourage torture and other ill-treatment and
apply it by way of analogy to the collection, sharing and receiving of information
obtained by torture or other cruel, inhuman or degrading treatment or punishment,
even if not used in “proceedings” as narrowly defined;
(f)
Take positive preventive measures to ensure that the relationships
between executive agencies of different States do not encourage or lead to torture or
other cruel, inhuman or degrading treatment or punishment, inter alia, by:
(i)
Establishing requirements in intelligence-sharing agreements that
information obtained in violation of the prohibition of torture or other cruel,
inhuman or degrading treatment or punishment be withheld;
(ii)
Establishing requirements in intelligence-sharing agreements that only
States that comply with all the obligations under the prohibition of torture or
other cruel, inhuman or degrading treatment or punishment be part of such
agreements;
(g)
Presume that, in cases of information originating in countries where
torture is a systematic or widespread practice, information collected or received is a
product of torture or other cruel, inhuman or degrading treatment or punishment;
(h)
Restrain from collecting, sharing or receiving information, even if there
is no pattern of systematic torture, if it is known, or should be known, that there is a
real risk of acts of torture or other cruel, inhuman or degrading treatment or
punishment and ensure that opposition to such treatment is clearly communicated to
the providing State;
(i)
Ensure that assurances from other States that torture or other illtreatment was not involved in producing information are not regarded as sufficient, in
order to avoid complicity or permit cooperation where a real risk of torture or other
cruel, inhuman or degrading treatment or punishment is identified;
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