Why exclude “torture evidence”?
There are many good public policy
reasons for excluding evidence obtained
by way of torture or ill-treatment,
including:
Article 15, UNCAT
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.
To make court proceedings more
effective by ensuring that they
are based on reliable evidence.
There is ample scientific research
showing that any statement made
or information provided under
torture is inherently unreliable, as
it is not given freely.
To avoid
miscarriages of
justice, where
someone is forced
to confess to a crime
that they did not
commit.
To safeguard the
fairness of a trial
by protecting a
defendant’s right to
remain silent and not
to be compelled to
provide information
under duress.
To enhance police
effectiveness, by
encouraging them
to develop effective
investigation skills
and methods.
To save police as well as
court time and associated
costs spent on responding
to allegations of torture or
misconduct.
To safeguard a
torture victim’s
rights in the legal
proceedings, and
provide them with
a remedy for the
violation of their
rights.
To protect the
integrity of the
justice system,
to instil public
confidence in it,
and strengthen
rule of law-based
institutions.
To deter,
disincentivise and
prevent torture and
ill-treatment, by
removing one of the
key reasons torture
and ill-treatment are
committed.
CONSTITUTIONAL PROVISIONS AND LEGISLATION
Many States prohibit unlawfully obtained evidence (including torture evidence) in their Constitutions or through
legislation. This is sometimes done by specific reference to the prohibition of torture evidence (as stated in Article
15 UNCAT), or through a ban on unlawful evidence in broader terms. Codes of practice or guidance for the police,
prosecutors, medical practitioners, and judges can also provide practical guidance on how to operationalise the
rules (see below).
Equatorial Guinea: anti-torture legislation prohibits use of torture evidence
Section 8 of the Law No. 2/2006 on the Prevention and Sanctions of Torture outlaws the use of confession or
information obtained by torture.
Japan: Constitution prohibits use of confessions obtained by torture
Japan’s 1947 Constitution (Article 38(2)) expressly prohibits the admission into evidence of confessions obtained
by torture: “Confession made under compulsion, torture or threat, or after prolonged arrest or detention shall not
be admitted in evidence.”
TOOL: Non-admission of evidence obtained by torture and ill-treatment
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