THE EXCLUSIONARY RULE:
International law prohibits the use of evidence obtained through torture
APT Background Bulletin, 27 July 2012
All States are bound by an exclusionary rule
The principle that States may not use any information obtained by torture (the “exclusionary
rule”) is expressly stated in Article 12 of the 1975 General Assembly Declaration against
Torture:
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 against the person concerned or against any other person in any
proceedings.
It is also expressly stated in Article 15 of the UN Convention against Torture (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.
The exclusionary rule is an integral part of the general prohibition of torture and other forms
of cruel, inhuman and degrading treatment or punishment.1 As a consequence:
The exclusionary rule is specifically included in the treaty obligations of all States
parties to general human rights treaties, such as the International Covenant on Civil
and Political Rights (ICCPR), even if not expressly mentioned.2
The exclusionary rule also binds states that are not party to the UNCAT, ICCPR or
any other human rights or humanitarian treaty, since the general prohibition of
torture and other ill-treatment is itself a rule of customary international law.3
1
Human Rights Committee, General Comment No. 20, UN Doc. HRI/GEN/1/Rev.7, 10 March 1992, para.12; and
Committee against Torture, P.E. v. France, No.193/2001, 19 December 2002, para.6.3; G.K. v. Switzerland,
No.219/2002, para.6.10; and Ktiti v. Morocco, No.419/2010, 5 July 2011, para.8.8.
2
Universal Declaration of Human Rights, Article 5; International Covenant on Civil and Political Rights, Article 7;
European Convention on Human Rights, Article 3; American Convention on Human Rights, Article 5; African
Charter of Human and Peoples` Rights, Article 5; 1949 Geneva Conventions, common article 3; Third Geneva
Convention (on Prisoners of War), Article 87; Fourth Geneva Convention (on Civilians), Article 32.
3
nd
N. Rodley, The Treatment of Prisoners Under International Law (2 ed.) (Oxford: Oxford University Press, 1999),
p.74; Burgers and Danelius, The United Nations Convention against Torture: A Handbook on the Convention
1