A/HRC/25/60
18.
Of particular concern are attempts to undermine the prohibition of torture or other
ill-treatment by using tainted statements outside of “proceedings”, narrowly defined, for
other purposes, such as intelligence gathering or covert operations. Cooperation in sharing
intelligence between States has expanded significantly in the fight against terrorism2 and
some police, security and intelligence agencies (collectively, executive agencies) have
shown a willingness to receive and rely on information likely to be obtained through torture
and other ill-treatment and to share that information with one another. The global trend of
giving executive agencies increased powers of arrest, detention and interrogation have
retracted the traditional safeguards against torture or other ill-treatment and led to further
abuse of individuals. The practice by executive agencies of using information obtained by
torture or other ill-treatment outside court proceedings must be examined to ensure that the
prohibition against torture is upheld, a practice made even more dangerous because of the
secrecy and lack of transparency that surrounds it. Regrettably, some States have diluted the
cardinal principles necessary for preventing and suppressing torture and other ill-treatment.
19.
The present report will elaborate on the scope and objective of the exclusionary rule
in judicial proceedings and in relation to acts by executive actors.
A.
Use of information tainted by torture and the exclusionary rule in
judicial proceedings
20.
Both the Human Rights Committee and the Committee against Torture have
concluded that the exclusionary rule forms a part of, or is derived from, the general and
absolute prohibition of torture and other ill-treatment.3 In article 12 of the Declaration on
the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or
Degrading Treatment or Punishment (resolution 3452 (XXX)), the General Assembly
expressly stated that “any statement which is established to have been made as a result of
torture or other cruel, inhuman or degrading treatment or punishment may not be invoked
as evidence … in any proceedings.” Article 15 of the Convention provides that “each State
Party shall ensure that any statement which is established to have been made as a result of
torture shall not be invoked as evidence in any proceedings, except against a person
accused of torture as evidence that the statement was made.”4
21.
The rationale behind the exclusionary rule is manifold and includes the public policy
objective of removing any incentive to undertake torture anywhere in the world by
discouraging law enforcement agencies from resorting to the use of torture. Furthermore,
confessions and other information extracted under torture or ill-treatment are not considered
reliable enough as a source of evidence in any legal proceeding. Finally, their admission
violates the rights of due process and a fair trial.5
22.
As the prohibition against torture and other ill-treatment is absolute and nonderogable under any circumstances, it follows that the exclusionary rule must also be non-
2
3
4
5
In resolutions 1373 (2001) and 1624 (2005), the Security Council stressed that States must ensure that
any measures taken to combat terrorism comply with all of their obligations under international
human rights law.
See Human Rights Committee, general comment No. 20 (1992) on the prohibition of torture or other
cruel, inhuman or degrading treatment or punishment, para. 12, and CAT/C/30/D/219/2002, para.
6.10
See also article 10 of the Inter-American Convention to Prevent and Punish Torture and General
Assembly resolution 67/161, para. 16.
See A Handbook to the Convention against Torture, p. 148; Nowak and McArthur, The United
Nations Convention against Torture: a Commentary (Oxford, United Kingdom, Oxford University
Press, 2008), art.15, para.2.
5
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