A/HRC/16/52
disappearances, extra-judicial executions, and other illegal repressive measures that could
lead to a total breakdown in the rule of law. These and other equally important questions
relating to the applicability of the exclusionary rule to executive decisions and intelligence
gathering merit further consideration in future reports of this mandate.
55.
In his report7 to the 13th session of the Human Rights Council, the Special
Rapporteur on the promotion and protection of human rights while countering terrorism
takes the view that “reliance on information from torture in another country, even if the
information is obtained only for operational purposes, inevitably implies the “recognition of
lawfulness” of such practices and therefore triggers the application of principles of State
responsibility. Hence, States that receive information obtained through torture or inhuman
and degrading treatment are complicit in the commission of internationally wrongful acts.
Such involvement is also irreconcilable with the obligation erga omnes of States to
cooperate in the eradication of torture.” The Special Rapporteur shares this view and
believes that this is a good starting point for future deliberation on the subject.
56.
In the considered opinion of the Special Rapporteur, in order for the “exclusionary
rule” to work as a preventative measure and create a disincentive for would-be abusers to
deploy ill-treatment as a tool for extracting confessions or corroborating information, its
applicability must be extended to cover intelligence and executive decisions. In other
words, it can only remain effective if it is applicable to all and any information which may
form the basis of a judicial or administrative process or decisions by the executive and its
agencies. The Special Rapporteur intends to ensure enhanced respect for, and adherence to,
the principle set out in article 15 of the Convention one of the central themes for his
engagement with States and other actors during his tenure. Questions relating to the
applicability of the exclusionary rule to executive decisions and intelligence gathering will
be the subject of further consideration in future reports of the mandate.
57.
The Special Rapporteur also intends to explore the possibility of a teleological
interpretation of the exclusionary rule contained in article 15 of the Convention, as he
believes that this norm is both a fundamental due process standard as well as a tool to
discourage investigators and security agents from practicing torture and ill-treatment. In
this regard, it would be important to consider whether the exclusion of evidence should be
extended not only to confessions and statements obtained under torture, but also to all other
pieces of evidence obtained through legal means but whose leads originate in an act of
torture. In some jurisdictions, this approach has been called the “fruit of the poisonous tree”
doctrine. While acknowledging that the international standard does not go so far, the
Special Rapporteur would certainly recommend that States, as a matter of their own internal
practices, voluntarily adopt a similar rule in their domestic criminal procedures.
C.
Forensic science and torture
58.
The Special Rapporteur reiterates his conviction that torture and ill-treatment are and
always will be ineffective means or tools for intelligence or information gathering and law
enforcement. Confessions and statements obtained under torture are inherently unreliable,
and often disorient and disperse the efforts of law enforcement and investigations
personnel. It is therefore crucial to recognize that alternatives to brutality are available and,
indeed, effective in addressing the needs of States in fighting crime in all its forms. The
Special Rapporteur feels that it is important to counter the attitude that is prevalent in many
7
Report of the Special Rapporteur on the promotion and protection of human rights and fundamental
freedoms while countering terrorism (A/HRC/10/3), February 4, 2009, paragraph 55.
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