A/HRC/25/60 included in an extradition procedure under its jurisdiction were made under torture. It is therefore for the State to investigate with due diligence whether there is a real risk that a confession or other evidence was not obtained by lawful means, including torture or other ill-treatment.21 Similarly, in the case of El Haski v. Belgium, the European Court of Human Rights held that it would be necessary and sufficient for the complainant, if the exclusionary rule were to be invoked, to show that there was a “real risk” that the impugned statement was obtained under torture or other ill-treatment.22 Similarly, the African Commission on Human and Peoples’ Rights held that “once a victim raises doubt as to whether particular evidence has been procured by torture or other ill-treatment, the evidence in question should not be admissible, unless the State is able to show that there is no risk of torture or other ill-treatment”.23 3. Secret evidence and closed material procedures 34. There is a risk that the standard of proof applied to proceedings in which closed material is used is still much lower than in civil and criminal cases and that the evidence in question may be heard in closed session, from which the individual concerned and the legal representation of his or her choice are excluded. 35. There is an increasing trend towards the use of secret hearings, “closed material procedures” and “secret evidence”. Furthermore, there is a trend to extend the use of closed proceedings from military commissions and extradition proceedings to civil cases in which the Government considers that sensitive material should not be made public, because the disclosure would be damaging to national security and the disclosure could potentially undermine the principle of confidentiality on which international intelligence-sharing arrangements are based. The definition of sensitive material is generally construed very broadly, meaning information which relates to, has come from, or is held by, the security and intelligence agencies. 36. The very secrecy of such evidence undermines the preventive element of the exclusionary rule. Wherever secret evidence is admitted there is an enhanced risk that evidence obtained by torture or other ill-treatment will be admitted, whether deliberately or inadvertently, since such evidence cannot be challenged in open court.24 In addition, much of the closed evidence used in cases which concern national security is heavily reliant on information from secret intelligence sources. Such evidence may contain second- or thirdhand testimony, or other material which would not normally be admissible in ordinary criminal or civil proceedings. Effective control of the implementation of the exclusionary rule and assessment of the compatibility of the conduct of the Government with the exclusionary rule in secret proceedings becomes difficult or even impossible.25 21 22 23 24 25 Ktiti v. Morocco, para. 8.8 and A/61/259, paras. 63 and 65. See also E/CN.4/2001/66/Add. 2, paras. 102 and 169 (i); A/56/156 para. 39 (d) and (j); A/48/44/Add.1, para. 28; Human Rights Committee general comment No. 32, para. 41; E/CN.4/1999/61 Add. 1, para. 113 (e); Cabrera García and Montiel Flores v. México, para. 176. El Haski v. Belgium, para. 88; see also Othman (Abu Qatada) v. the United Kingdom, application no. 8139/09, European Court of Human Rights, judgement of 17 January 2012. Egyptian Initiative for Personal Rights and Interights v. Arab Republic of Egypt, communication No. 334/06, African Commission on Human and Peoples’ Rights, March 2011. See also Singarasa v. Sri Lanka, communication No. 1033/2001, para. 7.4. See e.g. Mohamed et al. v. Jeppesen Dataplan, Inc., United States Court of Appeals for the Ninth Circuit, No. 08-15693, 8 September 2010 (on 16 May 2011, the United States Supreme Court declined to review the decision of the Ninth Circuit). See CAT/C/GBR/Q/5/Add.1, para. 30.5. 9