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Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Part I Substantive Articles, Art.15 Non-Admissibility of Evidence Obtained by Torture

Giuliana Monina

From: The United Nations Convention Against Torture and its Optional Protocol: A Commentary (2nd Edition)

Edited By: Manfred Nowak, Moritz Birk, Giuliana Monina

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 21 April 2024

Torture — Treaties, interpretation

(p. 417) Article 15  Non-Admissibility of Evidence Obtained by Torture

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.

1.  Introduction

Article 15 is an important provision supplementing the absolute prohibition of torture. The rationales behind the exclusionary rule are manifold.1 First of all, this provision is to protect the right to a fair trial. This reason applies primarily to criminal proceedings which must comply with certain standards of fairness, including the right not to be compelled to testify against oneself and the principle of equality of arms.2 Consequently, the use of any confessions or witness statements extracted by torture in criminal proceedings (p. 418) constitutes a serious violation of the right to a fair trial.3 However, the scope of Article 15 exceeds the rights of the accused in criminal proceedings and excludes any use of evidence obtained by torture in any proceedings, be they criminal, civil, or of administrative nature, judicial and non-judicial.4 Information extracted by torture is usually considered inherently unreliable evidence in any legal proceedings, as torture victims are ‘likely to say anything (true or not true) to end their sufferance’, as for example stated by the ECCC Supreme Court Chamber.5 The exclusionary rule equally aims at more generally protecting the principle of judicial integrity. Most importantly, Article 15 has a very important preventive effect as the inadmissibility of the evidence removes the incentive for law enforcement officials to use of torture, thereby contributing to the prevention of such practice.6 This additional preventive reason, thus, goes beyond judicial proceedings and has a deterrent effect on law enforcement personnel and their use of such heinous practice.7 The preventive nature of the exclusionary rule was also recalled by the UN General Assembly, which explicitly recognized that the ‘adequate corroboration of statements, including confessions, used as evidence in any proceedings constitutes one safeguard for the prevention of torture and other cruel, inhuman or degrading treatment or punishment’.8

Although the exclusionary rule seems to be firmly established in most legal cultures,9 the absolute prohibition of using evidence extracted by torture was recently put in question in the context of the so called ‘was against terror’, with States casting doubts on the applicability of the provision to torture evidence that had been extracted without the complicity of the national authorities10 or setting up a very high—almost unrealistic—threshold for the standard of proof.11

Moreover, although the wording of Article 15 seems to be fairly straightforward and has not given rise to much discussion during the drafting history, a number of questions of interpretation have arisen, concerning namely the type of evidence to which the rule applies, the meaning of the words ‘any proceedings’, the burden of proof, the applicability of the rule to ill-treatment, as well as the exception contained in the last part of Article 15.

The Committee has often examined the exclusionary rule in its reporting, individual complaints, and inquiry procedures. In the individual complaint procedure it has thus (p. 419) far examined several individual complaints invoking Article 15. Though in its early decisions it had adopted a fairly restrictive approach and found only few violations, more recently its approach seems to have changed with the Committee finding breaches of Article 15 more often.12 Nonetheless, despite clarifications on the applicability of the rule to extradition proceedings, the burden of proof, and what positive obligations arise from this provision, several questions of interpretation remain open. This has made some authors calling on the Committee to adopt a new general comment.13 The article below will address the above mentioned issues of interpretation and provide an overview of the Committee’s practice.

2.  Travaux Préparatoires

2.1  Chronology of Draft Texts

Declaration (9 December 1975)14

Article 12

Any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment may not be invoked as evidence against the person concerned or against any other person in any proceedings.

IAPL Draft (15 January 1978)15

Article VII (Evidentiary effect)

Any oral or written statement or confession obtained by means of torture or any other evidence derived therefrom shall have no legal effect whatever and shall not be invoked in any judicial or administrative proceedings, except against a person accused of obtaining it by torture.

Original Swedish Draft (18 January 1978)16

Article 13

Each State Party shall ensure that any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment shall not be invoked as evidence against the person concerned or against any other person in any proceedings.

United States Draft (19 December 1978)17

Each State Party shall take such measures as may be necessary to assure that any statement which is established to have been made as a result of torture shall not be invoked as evidence against any person in any proceedings except that it may be invoked in evidence against a person accused of having obtained such statement by torture.

(p. 420) Revised Swedish Draft (19 February 1979)18

Article 15

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 obtaining that statement by torture.

2.2  Analysis of Working Group Discussions

10  In comments based on Article 13 of the original Swedish draft, Austria sought to substitute Article VII of the IAPL draft for Article 13 of the original Swedish draft, based on the reasoning that Article 13 could be interpreted in a manner which would prohibit the prosecution of a person accused of having inflicted torture. In the same manner, the United States proposed that the deterrent effect of the article prohibiting the use of evidence of statements obtained through torture be maximized by providing an exception (as in the IAPL draft) allowing such statements to be used against the alleged torturer.

11  Following on from this proposal, the United Kingdom suggested that the phrase ‘except against a person accused of obtaining such statement by torture’ be added at the end of Article 13 of the original Swedish draft.19

12  Referring to Article VII of the IAPL draft, Morocco noted that it was in step with Moroccan penal legislation:

a confession is obviously only one of the many elements of conviction. It is a matter to be evaluated freely by the judge and it may fail to convince him (Article 288 of the Moroccan Code of Criminal Procedure.) Furthermore, a confession obtained lawfully merely supports scientific or material evidence or proof by witnesses. However, if a confession is obtained by torture, it should be rejected and will be without effect. Moreover, a police officer who uses torture during an interrogation will incur administrative and penal sanctions.

13  The 1980 Working Group had before it the revised Swedish draft text. One delegate drew the attention of the Working Group to Article 12 of the Declaration and stressed that there should be conformity between the meaning of the Declaration and Article 15 of the draft Convention. Nevertheless, the Working Group adopted Article 15 by consensus.

14  A reference to Article 15 was to be included in Article 16, but as various delegations could not reach agreement on the matter, the reference was dropped during the 1981 Working Group.20

2.3  Declarations and Reservations

15  None of the States Parties to the CAT have made any reservations relevant for the interpretation of Article 15. Only Austria declared that it ‘regards article 15 as the legal basis for the inadmissibility provided for therein of the use of statements which are established to have been made as a result of torture’.21

(p. 421) 3.  Issues of Interpretation

3.1  Meaning of ‘any statements obtained as a result of torture’

3.1.1  Type of Statements

16  Article 15 refers to ‘any statements obtained as a result of torture’. The initial wording of the IAPL Draft was more precise in this regard and clearly specified that the provision should apply to ‘any oral or written statement or confession obtained by means of torture or any other evidence derived therefrom’. This phrasing was replaced with a more general ‘any statements’ in the 1978 Swedish Draft, then chosen by the Working Group as the main basis for its deliberations. No substantial discussion on this aspect of Article 15 is, however, reported in the summary records of the Working Group discussions.

17  The lack of any discussions on this point during the travaux preparatoires and the very broad phrasing of the provision seem to suggest that the wording ‘any statements’ was meant to be as comprehensive as possible including any type of statements, regardless of their legal classification (confessions or any other type of information), form (oral or written) or author (defendant, co-defendant, or third party). This is also confirmed by the practice of the Committee, which has applied the provision to different types of statements regardless of their oral or written form,22 as well as the fact they were given by co-defendants23 or third parties.24 Similar conclusions were drawn by the ECtHR.25

3.1.2  Indirect Evidence

18  It is discussed whether, in addition to ‘statements’, Article 15 also applies to any other type of evidence derived therefrom and if it covers only the direct or primary results of torture or also the so-called ‘fruits of the poisonous tree’, ie derivative or secondary evidence to which the coerced statements have led to.26

19  In the literature there seems to be no consensus on this issue.27 The omission of an explicit reference to evidence derived from torture and the fact that the IAPL draft did indeed include a mention to ‘any other evidence derived therefrom’, which was however not reproduced in the subsequent drafts, seem to suggest that Article 15 does not apply to the fruits of the poisonous tree.28 On the other hand, such an interpretation would undermine the preventive rationale of the provision. Making tainted secondary evidence (p. 422) admissible would in fact represent a considerable incentive to use coercive methods of interrogation, as well as more generally put at risk the principles of fair trial and integrity of proceedings.

20  The Committee appears to support an extensive interpretation of Article 15. For example, in its Guidelines on initial reports the Committee explicitly requires States Parties to report on ‘whether derivative evidence is admissible, if applicable in the State party’s legal system’,29 thus implicitly considering that Article 15 extends to indirect evidence. The issue had been also addressed in a 1998 Concluding observations to Germany, where the Committee recommended ‘that further legislative attention be paid to the strict enforcement of Article 15 of the Convention and that all evidence obtained directly or indirectly by torture be strictly prevented from reaching the cognizance of the deciding judges in all judicial proceedings’.30 Similarly, in GK v Switzerland the Committee has taken into account evidence that had been found following a search conducted on the basis of the testimony extracted by torture (firearms and explosives),31 thus backing the view that the word ‘any statements’ includes also other evidence.32

21  The same conclusion is reached by other international and regional human rights bodies. In its General Comment No 32, the HRC has clarified that Article 7 CCPR applies to ‘statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by article 14’.33 The ECtHR held that ‘incriminating evidence—whether in the form of a confession or real evidence—obtained as a result of acts of violence or brutality or other forms of treatment which can be characterized as torture—should never be relied on as proof of the victim’s guilt, irrespective of its probative value’, thereby acknowledging the relevance of evidence other than statements.34

22  But even if one concluded that the rule applied also to derivative evidence, other questions of interpretation would arise, above all, if Article 15 imposes a blanket exclusion to all derivative evidence. Though the Committee has never pronounced itself on this issue, it shall be noted that in some legal traditions, the fruits of the poisonous tree doctrine applies with some limitations, and evidence that is discovered through an independent source by the police or which discovery was inevitable may be considered admissible in proceedings.35However, considering the particular seriousness of the violation and the absolute nature of the prohibition of torture, the ECtHR has taken a different approach when it comes to torture tainted evidence. For example, in contrast to evidence obtained in violation of other Convention’s provisions, the ECtHR, attaching particular (p. 423) considerations to the use in criminal proceedings of evidence obtained in violation of Article 3 ECHR, has concluded that evidence obtained as a result of torture—whether in the form of statements or real evidence—would always and automatically render unfair the whole criminal proceedings, regardless of the probative value of the evidence and irrespective of whether they had a decisive impact on the final conviction. For the ECtHR,

[a]ny other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe or, as it was so well put in the United States Supreme Court’s judgment in the Rochin case (see paragraph 50 above), to ‘afford brutality the cloak of law’.36

23  A more restrictive stance is taken by the ECtHR only for what concerns real evidence obtained as a result of inhuman and degrading treatment, for which it has decided to leave open the question as to whether such evidence would render the trial automatically unfair, and decided to apply the standard test assessing the circumstances of the individual case instead.37 This point has been further clarified by the ECtHR in Gäfgen, where the Court stated that ‘the application of the fruit of the poisonous tree doctrine should be limited only to real evidence that has a causal link with the inhuman and degrading acts’.38

24  In light of the foregoing, it is preferable to interpret Article 15 as applying also to indirect evidence, especially in light of the preventive rationale of such provision. As put by the ECtHR, any other conclusion would only serve to legitimate indirectly the conduct which Article 15 CAT aims to prohibit, and represent an incentive for law enforcement personnel to use coercive methods and thus undermine its preventive scope.

3.1.3  Statements made Before or After Torture

25  Courts have been similarly asked to determine whether the concept of ‘any statement obtained as a result of torture’ covers statements surrounding the interrogation, ie statements made before or after torture. The legal question arising in such situations concerns the temporal scope of application of the exclusionary rule.39

26  The issue has so far never been addressed by the Committee, but it has been raised before national courts. For example, the German Federal Court of Justice which held that nothing in the wording of Article 15 CAT or in the States practice justifies an interpretation as extensive as to requiring a blank exclusion of the statements for the mere reason that they have been obtained before or after the infliction of torture. On the hand, statements made before or subsequently to the infliction of torture will have to be excluded if the torture already had or continued to have an impact on the individual at the time he/she made the incriminating statements.40 In conclusion, the formulation ‘as a result of torture’ should not be limited to the moment when torture was inflicted but extends also (p. 424) to statements preceding and made subsequently to the infliction of torture if the coercion has indeed affected those statements.

3.1.4  Exculpatory Evidence

27  The broad wording of Article 15 suggests that the provision covers all type of evidence, be they incriminating or exculpatory. Again, the Committee against Torture has not yet had the chance to pronounce itself on this issue. But the question as to whether Article 15 extends also to exculpatory evidence has recently emerged in a number of national and international cases and is discussed in literature. In particular, courts have been asked whether Article 15 also covers torture tainted evidence when used for defence purpose by the accused person; and whether the provision can be balanced against the right to a fair trial.

28  The issue was raised before the ECCC Trial Chamber in the case Khieu and Nuon.41 There, the ECCC concluded that Article 15 bans also torture tainted evidence which it is asserted to be exculpatory arguing that ‘[t]he Accused should be permitted to adduce evidence that he asserts is exculpatory, but not at the expense of the integrity of the proceedings’.42 In Khieu and Nuon the tainted exculpatory evidence was invoked by the alleged torturers themselves, the Khmer Rouge leaders. In such a situation, the decision taken by the ECCC Trial Chamber is to be supported, as the right to a fair trial is only one of the rationales beyond the exclusionary rule, which instead equally aims to guarantee the integrity of the judicial proceedings and to prevent torture.

29  Yet Ernst maintains that torture tainted exculpatory evidence may be exceptionally admitted, when the torture victim and the accused are the same person.43 In that specific case, it is argued, admitting exculpatory evidence would have a ‘restitutionary effect’ which is in line with the right to a fair trial and the individual rights of the accused. With regard to the preventive aim and the principle of the integrity of proceedings—which at first sight seem to justify an absolute ban of tainted evidence—it is further argued that admitting tainted exculpatory evidence would not undermine but rather strengthen the preventive function of the provision. The fact that the only possible way in which tainted evidence can be used is in favour of the accused/torture victim would render tainted evidence useless in the eyes of law enforcement personnel.44 In this sense, a German Court held that it would be difficult to conceive that in order to preserve his/her own dignity, the accused is not allowed to invoke illegally obtained evidence that may exculpate him.45

3.1.5  Foreign Evidence

30  The Convention does not explicitly mention whether Article 15 applies to foreign torture evidence, ie evidence obtained as a result of the acts of officials of a foreign State and without the complicity of the first State party’s officials. Its broad wording, however, suggests that the provision should apply regardless of where the tainted evidence was (p. 425) obtained and by whom. Moreover, in practice, admitting foreign torture evidence would equally frustrate the rationales on which the rule is based. Torture evidence is in fact unreliable, unfair, and in violation of the principle of integrity of the procedure regardless of who has inflicted it or is complicit in its perpetration; and not applying Article 15 to foreign evidence would jeopardize its preventive function.

31  This view is supported by the practice of the Committee, which clarified that Article 15 ‘prohibits the use of evidence gained by torture wherever and by whomever obtained’.46 Specifically, the Committee expressed concern about the interpretation of the exclusionary rule put forward by the Appeal Court of England and Wales in A and Others, which had decided not to apply the exclusionary rule to foreign evidence unless UK officials were found complicit.47

32  The SRT is of the same view stating that the provision ‘applies no matter where in the world the torture was perpetrated and even if the State seeking to rely on the information had no previous involvement in or connection to the acts of torture’.48

33  Moreover, despite some initial resistance, today also domestic courts seem to accept that Article 15 equally applies to foreign evidence.49 In the landmark case A & Others v SSHD, the Law Lords unanimously found that the rule cannot be understood ‘to apply only where the state in whose jurisdiction the proceedings are held has inflicted or been complicit in the torture’.50 The Lords agreed that the exclusionary rule shall apply to any proceedings within the UK regardless of the fact that the evidence had been obtained by torture inflicted by foreign officials without the involvement of the British authorities. In doing so, the unreliability of torture, the integrity of the proceedings, and the honour of English law were invoked.51 It was also argued that if national courts, exercising universal jurisdiction, could try a foreign torturer for acts of torture committed abroad they should a fortiori also be able to receive evidence obtained by such torture.52 A similar conclusion had been reached by the German Higher Regional Court of Hamburg in the Mounir El-Motassadeq case.53 Though the main legal question in this decision concerned the probative value of the information provided by the US authorities—summaries of the statements made by three terrorist suspects during interrogation carried out by US authorities at unknown locations—the Court also acknowledged that Article 15 applies not only to torture conducted by German state organs, but also to torture conducted abroad by organs of another State.54

(p. 426) 3.1.6  Closed Evidence

34  As reported by the SRT, in recent years there was an increasing trend in the use of secret evidence and closed material procedures. This significantly increases the risk that evidence obtained by torture or other ill-treatment is admitted. The Committee had the opportunity to pronounce itself on the issue in its 2013 Concluding observations to the UK. On this occasion, it recommended that the State should ‘[e]nsure that intelligence and other sensitive material be subject to possible disclosure if a court determines that it contains evidence of human rights violations such as torture or cruel, inhuman or degrading treatment’.55

3.2  Meaning of ‘any proceedings’

35  Another key issue of interpretation concerns the type of proceedings the exclusionary rule applies to and, more in general, what is to be considered as a ‘proceeding’ under this Article. The IAPL draft explicitly referred to ‘any judicial or administrative proceedings’.56 Although this explanation was deleted in the final version of Article 15, nothing in the travaux préparatoires suggests that the scope of application of Article 15 was meant to be reduced only to certain types of proceedings.

36  The Committee has consistently confirmed this broad scope of application and in light of its practice there is no doubt that the provision applies to any proceedings regardless of whether they are of criminal, civil or administrative nature. This is supported by the fact that the Committee has explicitly acknowledged the application of the exclusionary rule in extradition proceedings. So far the Committee has decided on four such cases, and found a violation in one of them (Ktiti v Morocco).57 In doing so, the Committee observed that