Like the other obligations in the general prohibition against torture, the exclusionary
rule is absolute and non-derogable.4
Reasons for the exclusionary rule
In their authoritative text, Burgers and Danelius note that the exclusionary rule is based on
two considerations.5 First, statements made under torture are inherently unreliable; admission
of such information in proceedings, where the proceedings involve consequences for
individuals, may be contrary to principles of “fair hearing”.6 Second, since the use of
information obtained from torture in proceedings is often the reason why torture is applied in
the first place, prohibiting its use removes an incentive to torture. The Committee against
Torture has also expressly applied these rationales in its work.7
The exclusionary rule applies to all proceedings of any kind
While Burgers and Danelius’ comments on the purposes of article 15 of UNCAT refer to
“court” or “judicial” proceedings, nothing in the text of the Declaration or Convention restricts
the meaning of “proceedings” to formal court proceedings. Indeed the use of the phrase “any
proceedings” suggests that a broader range of processes were intended to be covered;
essentially, any formal decision-making by state officials based on any type of information. It
is submitted that the substance of both purposes identified by Burgers and Danelius would
apply equally forcefully to any quasi-judicial, administrative, or informal proceedings, certainly
where those proceedings involve a statutory decision by a senior government official with
consequences for the liberty of individuals within the territory or jurisdiction of the state. For
instance, the UN Committee against Torture has decided that the Exclusionary Rule applies to
extradition proceedings.8
The rule applies to all information extracted by torture by any State, anywhere in the
world
The exclusionary rule applies no matter where in the world the torture was perpetrated and
regardless of the nationality of the perpetrators. Even where the state seeking to rely on the
information had no previous involvement in or connection to the acts of torture or other illtreatment, the exclusionary rule prohibits the state from using the information.9
The rule excludes all information obtained by any form of coercion, not just torture
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Dordrecht: Martinus Nijhoff,
1988), p. 1; Human Rights Committee, General Comment No.24, HRI/GEN/1/Rev.7, para.8; UN General
Assembly, 2010 Resolution on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment,
A/RES/64/153, Preamble.
4
Committee against Torture, General Comment No. 2, CAT/C/GC/2, at para.6. See also Committee statement
adopted after terrorist attacks in New York (A/57/44, paras.17-18).
5
Burgers and Danelius, supra., p. 148. See also C. Ingelse, the UN Committee against Torture: An Assessment
(The Hague: Kluwer Law International, 2001), p.365.
6
See also Human Rights Committee, General Comment 13, at paragraph 14.
7
For instance, see “Summary record of the public part of the 289th meeting: Mexico, Paraguay.” (26 August
1997), CAT/C/SR.289, at para.34, sub-heading “D. Subjects of Concern”.
8
P.E. and G.K., supra fn.1.
9
Ktiti, supra fn.1; see also Committee against Torture, Concluding Observations on the Fourth Periodic Report of
the United Kingdom, 25 November 2004, UN Doc. CAT/C/CR/33/3, para.4(a)(i).
2