A/HRC/25/60 against Torture has stated that physical marks or scars should not be a prerequisite for ruling that evidence obtained under torture is invalid (CAT/C/SR.1024, para. 29). In addition, in order to show that evidence has not been obtained by torture, a court must rely on evidence other than the testimony of the investigating officer.9 26. Although the exclusionary rule is not expressly listed among the rules that apply both to torture and to cruel, inhuman or degrading treatment,10 the Committee against Torture, as the authoritative interpreter of the Convention, has made it clear that statements and confessions obtained under all forms of ill-treatment must be excluded.11 That ambiguity has led some courts to decide that the exclusionary rule does not apply when the ill-treatment that has resulted in a confession does not reach the gravity required for torture. The Human Rights Committee has authoritatively interpreted article 7 of the International Covenant on Civil and Political Rights and found that the exclusionary rule applies to both torture and other ill-treatment.12 Similarly, the Committee against Torture in its general comment No. 2 (para. 6), has held that “articles 3 to 15 of the Convention are likewise obligatory as applied to both torture and other ill-treatment”13 and 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 explicitly excludes statements made under cruel, inhuman or degrading treatment or punishment. 27. Some States have deemed evidence obtained in a third State as a result of torture or ill-treatment admissible, as long as this evidence had been extracted without the complicity of the authorities. However, the exclusionary rule applies no matter where in the world the torture was perpetrated and even if the State seeking to rely on the information had no previous involvement in or connection to the acts of torture (CAT/C/CR/33/3, para. 4). 28. The exclusionary rule applies not only where the victim of the treatment contrary to the prohibition of torture or other ill-treatment is the actual defendant, but also where third parties are concerned. Such a conclusion is plainly intended by the wording of article 15, which provides that “any statement…in any proceedings” shall come within the scope of exclusion and not just one given by the accused in a domestic court. The Committee against Torture, the European Court of Human Rights and the Inter-American Court of Human Rights have firmly ruled against the use of evidence tainted by torture that has been extracted from third parties, regardless of whether such evidence may be used in domestic proceedings or in proceedings in a third State.14 29. The exclusionary rule extends not only to confessions and other statements obtained under torture, but also to all other pieces of evidence subsequently obtained through legal means, but which originated in an act of torture.15 In some jurisdictions, this approach is 9 10 11 12 13 14 15 Mia Swart and James Fowkes, “The regulation of detention in the age of terror – lessons from the apartheid experience”, South African Law Journal, vol. 126, No. 4 (2009). Article 16 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Committee against Torture, general comment No. 2, para. 6. Human Rights Committee general comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial, para. 41. See also the Guidelines on the Role of Prosecutors (A/CONF.144/28/Rev.1) and the second annual report of the International Criminal Tribunal for the Former Yugoslavia, (A/50/365-S/1995/728), para. 26, footnote 9, on the amendment to rule 95 of the rules of procedure and evidence. See also Chris Ingelse. The UN Committee against Torture. An Assessment, (The Hague, Kluwer Law International, 2001), p. 365. See e.g. Ktiti v. Morocco, Committee against Torture, communication No. 419/2010 and El Haski v. Belgium, application no. 649/08, European Court of Human Rights, judgment, 25 September 2012, para. 85. Cabrera García and Montiel Flores v. México, Inter-American Court of Human Rights, Series C, No. 220, judgement of 26 November 2010, para. 167 (including evidence obtained under duress). 7