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
the broad scope of the prohibition in article 15, proscribing the invocation of any statement which is established to have been made as a result of torture as evidence ‘in any proceedings’, is a function of the absolute nature of the prohibition of torture and implies, consequently, an obligation for each State party to ascertain whether or not statements admitted as evidence in any proceedings for which it has jurisdiction, including extradition proceedings, have been made as a result of torture.58
More recently, the Committee has acknowledged the application of Article 15 before military courts,59 or proceedings in the framework of anti-terrorism legislation.60 In certain cases the Committee also seemingly considered that Article 15 applies in any stage of the proceedings,61 including the review stage,62 and that the torture tainted evidence (p. 427) ‘should never be permitted to reach the cognizance of the judges deciding the case, in any legal procedure’.63
37 Yet, still today there is no uniform understanding of the word ‘proceeding’, and if this should be restricted only to court proceedings,64 encompass any formal proceeding in which an administrative agency takes a decision, or even proceedings in the context of which the executive agencies adopt measure for operational purposes. In this regard, the practice of the Committee is not conclusive, as it has referred to proceedings as ‘judicial proceeding’ or ‘court proceeding’ but also to broader terms such as ‘legal proceedings’65 or ‘any proceeding whatsoever’.66
38 One of the arguments against the extension of Article 15 to proceedings other than court ones is that to do so would not be compatible with the wording contained in the Russian version.67 Whilst the English, French, and the Spanish versions include a wording broad enough to encompass both concepts (‘any proceedings’, ‘une procédure’; ‘ningùn procedimiento’) the Russian one explicitly refers to court proceedings.68 Being all equally authentic texts as provided by Article 33 CAT, Thienel has concluded that Article 15 refers only to court proceedings, as only such an interpretation can best reconcile all language versions of the treaty in line with Article 33(4) VCLT.69 Yet, on the other side, considering that all other language versions are consistent among each other’s and refer generally to proceedings, one should not exclude that the different wording of the Russian text may be attributed to inaccurate translation rather than a specific will of the drafters to restrict the scope of application of the provision to court proceedings. In addition, it could be argued that Article 33(4) VCLT’s rule on ‘the meaning that best reconciles the texts, having regard to the object and purpose of the treaty’ applies only when the ‘comparison of the authentic texts discloses a difference of meaning which the application of articles 31 and 32 does not remove’. This means after that the interpreter has unsuccessfully applied the general principles set out in Article 31 and 32 VCLT, on which basis it is required to interpret the contested provision in light of the object and purpose of the treaty.70 Considering that the object and purpose of the Convention is to ‘make more effective the struggle against torture and other forms of ill-treatment throughout the world’,71 and one of the rationales of Article 15 is to prevent torture, one could conclude that this provision should be interpreted more broadly.
39 In light of the above, another approach could be that the essential element defining the scope of application of Article 15 should rather be found in the formality of the proceedings, and the phrase ‘evidence in any proceedings’ should only refer to the assessment of evidence before a judicial or administrative authority acting in accordance with certain rules of taking evidence laid down in the respective (criminal, civil, or administrative) procedural code. This approach could also explain why the IAPL referred to ‘any judicial (p. 428) or administrative proceedings’ explicitly making a reference to ‘administrative proceedings’ in opposition to judicial proceedings.72 This would include, for example, proceedings before military commissions,73 immigration boards,74 Ombudspersons,75 as well as any formal procedure which leads to a decision of a court or an administrative authority/agency.76
40 There remains, however, the question as to whether the use of torture tainted evidence by executive agencies for operational purposes falls within the concept of ‘formal procedure’ and is thus equally prohibited by Article 15. Such a question has become increasingly relevant, especially in the context of the debate on the legitimacy of the use of torture or its tainted fruits for purposes of combating terrorism and in view of the increasingly central role played by intelligence agencies in this area.77 A further layer of complexity is added by the growing cooperation among intellig