A/HRC/25/60
43.
International law intends to bar not only actual breaches but also potential breaches
of the prohibition against torture and any cruel, inhuman or degrading treatment or
punishment, and obliges States to put in place all those measures that may pre-empt the
perpetration of torture.34
44.
The obligation to take effective preventive measures transcends the items
enumerated specifically in the Convention. Article 2, paragraph 1, provides authority to
build upon subsequent articles (articles 3 to 15 of the Convention), referring to specific
measures known to prevent acts of torture and other ill-treatment and to expand the scope
of measures required for such prevention. Thus, States must take effective preventive
measures, including by good-faith interpretation of the existing provisions, to eradicate
torture and ill-treatment.35
45.
In this sense, the customary non-refoulement provision, as contained in article 3 of
the Convention, is one obligation under the overarching aim of preventing torture and other
ill-treatment. It contains the obligation of States not to return a person if there are
substantial grounds for believing that he or she would be in danger of being subjected to
torture, even outside the territory and control of a State. In the case of Soering v. the United
Kingdom, the European Court of Human Rights ruled that even though the European
Convention for the Protection of Human Rights and Fundamental Freedoms does not
contain a specific non-refoulement provision prohibiting the extradition of a person to
another State where he would be subject, or be likely to be subjected, to torture or other illtreatment, such obligation was already inherent in the general terms of the prohibition
against torture by referring to the recognition of its absolute nature and its fundamental
value for democratic societies.
46.
The interpretation and extension of the prohibition against torture under the nonrefoulement provision, provides important guidance regarding the rules applicable to
executive actions that purposely and objectively promote torture by taking advantage of its
results. The non-refoulement obligation is a specific manifestation of a more general
principle that States must ensure that their actions do not lead to a risk of torture anywhere
in the world. There is a clear negative obligation not to contribute to a risk of torture.
47.
As mentioned earlier in this report, the exclusionary rule provides for an absolute
prohibition in international law on the use of evidence obtained by torture or ill-treatment in
any proceedings. It is considered a preventive measure, reasonably required to give effect to
the absolute prohibition of torture and ill-treatment and the obligation to prevent and
discourage such acts, alongside other provisions of the Convention and customary law. On
the basis of the purpose and object of the exclusionary rule and in the general prohibition of
torture and other ill-treatment, the exclusionary rule must be interpreted to apply much
more widely, to include the activities of executive actors.36 Information obtained by torture
or other ill-treatment, even when not intended to be used in formal proceedings, must
always be treated in the same way that a court would treat evidence obtained by illegal
means and thus be disregarded.37 Articles 2 and 16 of the Convention require States to
prevent torture and ill-treatment by taking appropriate preventive measures. A failure to do
so, by permitting acts of torture, or failing to take appropriate measures, or to exercise due
diligence, to prevent, investigate or punish acts of torture gives rise to a violation. This also
applies to the judiciary in its role as custodian of the legality of State action. The acceptance
34
35
36
37
12
International Criminal Tribunal for the Former Yugoslavia, case No. IT-95-17/T10, judgement of 10
December 1998, para.148 and A/59/324, para. 27.
Committee against Torture, general comment No.2, para. 25.
See A/ HRC/16/52, paras. 53-57 and A/67/396, paras. 48-49.
See e.g. Organization for Security and Cooperation in Europe Office for Democratic Institutions and
Human Rights, “Human rights in counter-terrorism investigations: a practical manual for law
enforcement officers” (Warsaw, 2013), p. 28.
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