45 According to Article 15 only those statements that have been ‘established to have been made as a result of torture’ are inadmissible. This formulation gives room for different interpretations, as the case law of the Committee against Torture and relevant domestic courts show. A literal reading of Article 15 might even support an understanding which would require the person against whom the proceeding is being carried out to provide full evidence that his or her confession was extracted by torture, a burden of proof which in almost no case could be met. On the other hand, it might be equally difficult for the prosecutor or any other Government authority to provide full evidence that a given confession or witness statement was definitely not extracted by torture, in particular if such a statement was received from a foreign Government to support an extradition request or from a foreign intelligence service in support of a criminal charge or detention order. Thus, any interpretation which takes into account both the wording and the purpose of Article 15 must aim at striking a fair balance between the legitimate interests of the State and of the individual against whom the evidence is invoked.
46 The burden of proof is the issue of interpretation with which the Committee has confronted itself more often in the individual complaints procedure.94 Since its decision PE v France of 2002, the Committee has consistently held that Article 15 derives from the absolute nature of the prohibition of torture and implies, consequently, an obligation for each State party to ascertain whether or not statements constituting part of the evidence of a procedure for which it is competent have been made as a result of torture.95 By doing so, the Committee has set up a positive obligation upon States to examine whether evidence brought before them could be tainted by torture. This positive duty of the State mitigates the general rules on the burden of proof, which would normally require the complainant to prove his/her claim before the Committee,96 and produces what is normally referred to as a ‘shift of the burden of proof’. Yet in order to trigger such procedure and thus the positive duty of the State, the complainant needs to allege prima facie evidence of the torture allegation, so as to demonstrate that his/her allegation are well-founded.97
47 While until 2003 the Committee had decided only on four cases and found no violation of Article 15;98 from 2004 until March 2017 it has found violation of Article 15 in eleven out of the fifteen cases it was called to decide upon.99 Initially the Committee (p. 432) seemed to have given particular weight to the existence of medical reports or witness statements corroborating the allegations concerning Article 15, thereby setting up a very high threshold for the applicant.100 However, in more recent cases, it has found violations of Article 15 also when the complainant was not able to produce any medical report or other corroborating evidence.101 In other words, once the complainant has brought an arguable claim before the Committee, the fact that the State party does not refute the allegations nor include any specific information on the applicant’s claim in its observations to the Committee may be enough for the Committee to find a breach of Article 15.102 As additional corroborating arguments, the Committee has equally considered the fact that national courts failed to address adequately the complainant’s allegations of forced confessions as a result of torture,103 the existence of additional Convention violations, such as for example Article 12 for failure to carry out any investigations despite numerous complaints of torture,104 or Article 3,105 as well as the general situation concerning the implementation of this Convention provision by the State party as documented in its concluding observations.106 Finally, in some cases, the Committee seems to have taken into account also whether the tainted statements had a decisive impact in the relevant proceedings.107 This is surprising because, contrary to other instruments where the use of tainted evidence is prohibited on the basis of the right to a fair trial, Article 15 CAT sets up a specific exclusionary rule, which, besides protecting the right to a fair trial of the accused, equally aims to safeguard the integrity of the proceedings and prevent the use of torture. As these additional rationales would be frustrated regardless of the impact of the evidence on the final conviction, such an argument is irrelevant for the purpose of establishing a violation of Article 15. Moreover, even in systems where the use of torture evidence is prohibited on the basis of the right to a fair trial, such as the ECHR, it was concluded that, given the seriousness of the offence, the use of torture tainted evidence always renders automatically unfair the whole criminal proceedings, regardless of the probative value of the evidence and irrespective of whether they had a decisive impact in the final conviction.108
(p. 433) 48 In extradition proceedings, the Committee has considered in particular the status (eg pending109 or not110) of the proceedings in which the complaint concerning the alleged ill-treatment is being investigated in the requesting State. According to the Committee it is in fact for domestic courts to evaluate facts and evidence in a particular case, ‘unless the evidence assessment is clearly arbitrary and amounts to a denial of justice’.111 In practice, the Committee has found no violation of Article 15 where the ill-treatment complaints were still being investigated by the requesting State,112 or when the requesting State’s authorities had already taken the decision to discontinue the investigation on the complaint.113 In the first situation the Committee found that it was not yet possible to establish that the statements had been extracted by torture. However, it is believed that if Article 15 is applicable to extradition proceedings, as the Committee accepted it to be, then it should be incumbent on the domestic authorities deciding on the extradition request to at least wait until the required evidence is established and produced by the requesting State.114 In the second situation, the Committee has taken the view that the decision of the requesting State authorities to discontinue the ill-treatment complaint was sufficient to establish that the statements had not been made in violation of Article 15. Though it would probably stretch the meaning of Article 15 beyond what can reasonably be expected from the authorities of the requested State to investigate torture complaints in the requesting State after its judicial authorities had closed the respective criminal proceedings, the approach taken by the Committee seems to give the authorities in the requesting State almost unlimited discretion to ‘establish’ that a given extradition request was not based on statements extracted by torture. A violation of Article 15 in extradition proceedings was found for the first time in the 2011 case Ktiti v Morocco.115 There, the Committee also found a breach of Article 3, thereby closely linking the guarantees under Article 15 to the prohibition of refoulement in Article 3 CAT. If a person cannot be extradited because of substantial grounds for believing that he or she would be in danger of being subjected to torture in the requesting State, then the authorities in the requested State are not discharged by their obligation to verify the content of the author’s allegations under Article 15 by simply relying on the results of the investigations in the requesting State. On the contrary, as clarified in Yousri Ktiti v Morocco, they will have to also ‘verify the content of the author’s allegations’.116
49 But the jurisprudence of the Committee adopted thus far does not assess the question of what test is to be applied in order to establish that evidence is obtained by torture. Such question has been however addressed by other domestic and international courts.117
50 Some national courts have applied a balance of probability test. For example, in the German case of El-Motassadeq,118 the defendant was charged with conspiracy to cause the (p. 434) attacks of 11 September 2011. The Hanseatic Higher Regional Court of Hamburg had to assess whether the summaries of the interrogations of three suspected Al-Qaeda members sent by the United States could be invoked and used as evidence in the criminal trial before it. In its procedural decision of 14 June 2005,119 the Hamburg Court decided to accept, as trial evidence, the full summaries of the testimonies given by the three witnesses cited above. The Court based this decision on the reasoning that Article 15 CAT only excluded statements as evidence which were established to have been made as a result of torture but that in the present case it was impossible for the Court to establish that the testimonies were in fact extracted by torture. Although the press articles and NGO reports heard in court supplied indications that alleged Al-Qaeda members had been tortured, the Court was unable to verify them, as no primary sources had been named. Moreover, since the summaries of the interrogations also contained exculpatory elements, this was taken as an indication that no torture had been used. Hence, in its judgment of 19 August 2005, the Hamburg Court sentenced Mr. El-Motassadeq to seven years’ imprisonment for membership of a terrorist organization. In his reasoning, the presiding judge stated that the summaries sent by the US Department of Justice did not have sufficient probative value, positive or negative, with a view to the uncertainty over how the statements had been obtained. The testimonies of the US detainees had therefore only been taken into account, in considering the evidence and reaching a verdict, to the extent to which they had been clearly corroborated by other objective evidence.120
51 The UK House of Lords concluded in a similar way in the judgment A and Others v SSHD of December 2005.121 On this occasion, the Law Lords agreed that the conventional approach to the burden of proof is inappropriate in relation to Article 15122 and on the need to devise a procedure that would afford protection to the appellant without imposing a burden of proof on either party that they would not be able to discharge.123 But, most interestingly, they disagreed on the specific test to apply in relation to the standard of proof. Ultimately, the majority of the Law Lords took a position similar to those of the German authorities in El-Motassadeq and followed the balance of probability test establishing that evidence should be excluded only if by means of diligent inquiries it can be established that on a balance of probabilities it was obtained by torture. In case of doubt, evidence should be admitted.124
52 Others maintained that a real risk text should be applied, arguing that a balance of probabilities test constituted a too high threshold which would be impossible to satisfy for the applicant, thus, undermining the practical efficacy of Convention. For example, the real risk test was put forward by the minority in A and Others v SSHD, where Lord Bingham argued that evidence should only be admitted if the court establishes that there is no such real risk that evidence is extracted by torture, but excluded in all other cases. Consequently, it would be for the appellant to first advance a plausible reason why evidence may have been procured by torture. But it would then be for the court to inquire as to whether there is a ‘real risk’ that the evidence has been obtained by torture.125 Similarly, the ECtHR has applied the ‘real risk’ test in the case Othman (Abu Qatada) v UK arguing that it would be unfair to impose on the applicant a burden of proof that (p. 435) went beyond the demonstration of a ‘real risk’ that the evidence in question had been thus obtained.126 In doing so, the ECtHR pointed out that when assessing the admissibility of torture tainted evidence, it is necessary to give due regard ‘to the special difficulties in proving allegations of torture’. The fact that torture is often practiced in secret, by experienced interrogators who are skilled at ensuring that it leaves no visible signs on the victim, and with the complicity of those who are charged with ensuring that torture does not occur—courts, prosecutors, and medical personnel—makes its proof particularly difficult. Hence, the ECtHR concluded that by proving a ‘real risk’ the applicant had discharged the burden that could be fairly imposed on him. Such an approach is also adopted by the Trial Chamber of the ECCC.127
53 The use of a balance of probability test under Article 15 CAT by the Hamburg Court has been strongly criticized, as it sets up an unrealistically high standard of proof, making the application of the exclusionary rule illusory in cases, where the information is provided by the intelligence of a foreign country without disclosing the full text of the transcript or the whereabouts of the witnesses.128 On the contrary, in light of well-founded allegations about the torture and enforced disappearance of the witnesses in US custody, it was the responsibility of the Prosecutor (or the Court) to prove beyond reasonable doubt that these testimonies were not extracted by torture, rather than to prove that they were actually obtained by torture.129 For these reasons, it can be concluded that the real risk test is most in line with the letter and spirit of Article 15 CAT.130
54 Moreover, also situations of enforced disappearance and incommunicado detention require special consideration. In this regard, for example, the African Commission has taken the view that ‘any confession or admission obtained during incommunicado detention shall be considered to have been obtained by coercion’ and hence not be admitted as evidence.131 On this point too, the decision taken in the El-Motassadeq case should be criticized.132 Though a careful analysis of the decision shows that the three witnesses whose testimony were in fact victims of enforced disappearance133—the Hamburg Court (p. 436) held that prolonged incommunicado detention of less than three years and the denial of a proper trial did not amount to a particular serious human rights violation which would under section 136a of the German Criminal Procedure Code exclude the use of statements made during this secret detention.134 This legal reasoning clearly underestimates the seriousness of the crime and human rights violation of enforced disappearance.135 In a comparable case against Libya the HRC, for example, qualified a period of three years of incommunicado detention as even amounting to torture.136 Similarly, the UN Commission on Human Rights has repeatedly stressed that prolonged incommunicado detention may facilitate the perpetration of torture and can itself constitute a form of cruel, inhuman or degrading treatment or even torture.137 In other words, even before the adoption of the UN Convention on Enforced Disappearance,138 the Hamburg Court should have applied Article 15 CAT and ruled out categorically the use of any statements made by persons held in incommunicado detention for a prolonged period of time. Whether the use of torture for the purpose of extracting information can be established or not is irrelevant in cases of enforced disappearances as the very fact that a person is kept incommunicado for a prolonged period of time amounts to torture or at least cruel, inhuman or degrading treatment.139 If it is accepted, as the Hamburg Court reluctantly did, that courts use in criminal trials evidence provided by foreign intelligence services, which at the same time clearly admit that this evidence was obtained through interrogation of victims of enforced disappearance, then minimum standards of the international rule of law and human rights will start being seriously undermined.