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