A/HRC/25/60 66. The exclusionary rule covers the exclusion of statements obtained through torture or other ill-treatment of the defendant himself, or of a third party, and evidence obtained in a third State, even if the State seeking to rely on the information had no previous involvement in or connection to the acts of torture or other illtreatment. Similarly, documentary or other evidence obtained as a result of acts of torture or other ill-treatment must be excluded, irrespective of whether such evidence has been corroborated or is not the only decisive evidence in the case. 67. The Special Rapporteur holds that the defendant must only advance a plausible reason as to why the evidence may have been procured by torture or other illtreatment. Thereafter the burden of proof must shift to the State and the courts must inquire as to whether there is a real risk that the evidence has been obtained by unlawful means. If there is a real risk, the evidence must not be admitted. 68. It is incumbent on States to go beyond the literal remit of article 15 of the Convention and provide procedures in domestic legislation for the exclusion of any and all evidence obtained in violation of safeguards designed to protect against torture and other ill-treatment.49 69. Secret proceedings or “closed material procedures” inhibit the implementation of the exclusionary rule. States should ensure effective legal representation and control of the implementation of the exclusionary rule in all proceedings involving secret evidence, closed material procedures or the invocation of the “State secrets doctrine”, in order to enable defendants effectively to challenge evidence, including evidence from the security services. There should be no excuses about State secrets put forward by States for violations of human rights. 70. The Special Rapporteur observes that in practice, the transition from an executive operation to a quasi-judicial or judicial one is often seamless and that operational intelligence is often relied on in the legal proceedings that follow.50 By utilizing tainted information originally obtained for intelligence and policing purposes the courts tacitly endorse and condone the torture or ill-treatment itself, contradicting the very essence of the exclusionary rule. 2. Executive branch 71. While being aware of the threats posed by terrorism and the duty of States to protect their people against such threats, the Special Rapporteur reiterates that the absolute nature of the prohibition of torture and other ill-treatment means that no exceptional circumstances whatsoever may be invoked as a justification for torture or other ill-treatment. 72. To allow exceptions by the executive branch for purposes other than legal proceedings, or to find other uses for their outcomes, goes plainly against the spirit of the Convention, the International Covenant on Civil and Political Rights and other treaties and standards; against the obligation to prevent torture and other illtreatment; and against the absolute prohibition of torture and other ill-treatment. 73. The Special Rapporteur is of the opinion that the aim of preventing and discouraging torture and other ill-treatment by rendering their products useless in legal proceedings is one strong policy objective of the exclusionary rule. If executive agencies are free to use information obtained by torture or other ill-treatment for other purposes, that constitutes an incentive to torture or ill-treatment in clear 49 50 See Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, principle 27. See also International Commission of Jurists, “Assessing damage, urging action; report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights” (Geneva, 2009), p.85. 17