States cannot apply the exclusionary rule only to information obtained through a narrowly
defined concept of “torture”, distinguishing other forms of cruel, inhuman or degrading
treatment: all information obtained through any form of ill-treatment is covered.10
In its recommendations, the Committee against Torture has frequently extended the
exclusionary rule to cruel, inhuman, and degrading treatment or punishment.11 The Human
Rights Committee has also extended the rule to other forms of ill-treatment. In its General
Comment on Art.7, the prohibition on torture and other ill-treatment, the Human Rights
Committee states: “It is important for the discouragement of violations of Art.7 that the law
must prohibit the use of admissibility in judicial proceedings of statements or confessions
obtained through torture or other prohibited treatment. [emphasis added]”12
The UN Body of Principles on Detention also recommend the exclusion of evidence which
was obtained in violation of other principles of detention as well as torture, such as
irregularities during arrest, the failure to inform the detainee of reasons for his arrest or his
rights, failure to promptly bring the detainee before a judicial or other authority, the denial of
legal assistance or contact with the outside world, failure to keep records of the interrogation,
or other methods of interrogation which impair a detainee’s judgment or take advantage of
the situation to compel statements. 13
The State has a positive duty to ensure the evidence was not obtained by torture
In P.E. v. France, a case before the Committee against Torture,14 France argued that nothing
in UNCAT imposed upon it an obligation to ascertain the circumstances in which information
provided by another State was obtained before using the information in its domestic
extradition processes. This implied, in part, that the person alleging that information was
obtained by torture must prove the allegation. The Committee rejected the submissions of
France, holding that States are obliged “to ascertain whether or not statements constituting
part of the evidence of a procedure for which it is competent have been made as a result of
torture.” The Committee considered the issue further in the case of G.K. v. Switzerland, in
which it ruled that the applicant is only required to demonstrate that the allegation of torture is
well-founded. Once this threshold is met, the burden of proof shifts to the State to show
whether or not the evidence was made as a result of torture.15
The Human Rights Committee has also ruled that, pursuant to the ICCPR, the author of a
complaint must not have the burden of proving his confession was made under duress.
Rather, the burden rests with the prosecution.16
10
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, “Interim Report
to the General Assembly”, 1 September 2004, UN Doc. A/59/324, paras.13-16; and 1975 General Assembly
Declaration against Torture, supra, art.12. Whether one employs a definition of “torture” per se whereby any form
of pain, suffering or other cruel, inhuman and degrading treatment applied for the purpose of obtaining information
constitutes torture (as under customary international law), or the perhaps technically narrower UNCAT definition of
“torture” (referring to “severe” pain or suffering), the substantive obligation remains the same: no State can use
the information in any type of proceeding. See also the Committee against Torture report on its Confidential Art.20
inquiry in Turkey, A/48/44/Add.1, para.28; and Human Rights Committee, General Comment 20, 10 March 1992,
at para.12.
11
For examples, see C. Ingelse, supra., p.381. See also the CAT report on its Confidential Art.20 inquiry in
Turkey, A/48/44/Add.1, §28.
12
CCPR, General Comment 20, 10 March 1992, §12.
13
UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. res.
43/173, annex, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49 (1988).
14
Supra n. 2.
15
See G.K. v. Switzerland, No. 219/2002, at para.6.10.
16
Human Rights Committee, Nallaratnam v. Sri Lanka, No.1033/2001, 23 August 2004, at para.7.4.
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