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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, 2021. All Rights Reserved.date: 28 November 2021

Subject(s):
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

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 intelligence agencies around the world and the fact that certain States have shown a willingness to rely on foreign intelligence obtained through torture.78 For instance, the UK Foreign and Commonwealth Office stated

we cannot get all the intelligence we need from our own sources, because the terrorist groups we face are scattered around the world, and our resources are finite. So we must work with intelligence and security agencies overseas. Some of them share our standards and laws while others do not. But we cannot afford the luxury of only dealing with those that do. The intelligence we get from others saves British lives.79

Similarly the German Government argued that the use of foreign intelligence for operational purposes, such as for example to prevent a terrorist attack, is not prohibited by international law, and that the cooperation between various intelligence agencies in the global fight against terror would make it impossible to ascertain whether some of the information obtained may be the result of torture.80 In Germany, an intensive debate arose about the legitimacy of using information (p. 429) received by foreign intelligence agencies likely to use torture for the mere purpose of preventing terrorist acts.81

41  Though the Committee has not pronounced itself explicitly on this issue, it has referred to the use of intelligence for operational purposes several times. In its Concluding observation to Germany the Committee stated that ‘[t]he absence of information on whether the Government continues to rely on information from intelligence services of other countries, some of which may have been extracted through torture or ill-treatment, is of serious concern … ’, and recommended to ‘[r]efrain from “automatic reliance” on the information from intelligence services of other countries, with the aim of preventing torture or ill-treatment in the context of forced confessions’.82 Most recently, commenting on the practice of some States parties to adopt national guidelines for intelligence offices and service personnel,83 the Committee has welcomed the publication of such guidance ‘as an important step toward ensuring transparency and accountability in relation to the actions of its personnel operating overseas and their relationships with foreign intelligence services’;84 but criticized them in so far as they allow for the possibility of seeking assurances in situations where actions of foreign security and intelligence services pose a serious risk of torture or other ill-treatment85 as well as relying upon information from foreign entities that is likely derived through ill-treatment in exceptional circumstances involving threats to public safety.

42  The question has also been addressed, at least to some extent, in the House of Lords’ judgment A and Others, where the Law Lords had to rule on the applicability of the exclusionary rule to proceedings before the UK Special Immigration Appeals Commission (SIAC), as well as before the Secretary of State, and more in general by the ‘executive arm of the state’, such as secret services, the police, or other executive agencies.86 While the Law Lords considered the SIAC as a judicial body and thus deemed the exclusionary rule applicable before it, they rejected that the rule could apply to the executive, thus considering it lawful for the Secretary of State to certify, arrest, search, and detain on the basis of torture evidence, and this despite the ‘mismatch’ between the material on the basis of which the Secretary of State (the executive) and the SIAC (the judicial body) were able to act upon.87 For example, Lord Nicholls expressed the opinion that the Government cannot be expected to close its eyes to information at the price of endangering the lives of its citizens,88 and Lord Brown even indicated that the executive branch is bound to make (p. 430) use of all such information, as it is under a duty to safeguard the State.89 In this respect, in its concluding observations the Committee noticed that ‘the State party should never rely on intelligence material obtained from third countries through the use of torture or other cruel, inhuman or degrading treatment’.90

43  Although States have a duty to protect all persons subject to their jurisdiction, the House of Lords’ decision does not seem to take into account the preventive rationale of Article 15, thus having the potential to undermining the absolute prohibition of torture and creating a market for torture tainted information. Moreover, in practice, it is very difficult to separate the use of evidence for operational purposes from that in legal proceedings.91 Hence, rather than excluding the application of Article 15 in view of the operational nature of the proceedings, it is believed that also in this case one would have to assess the formality of the proceedings. It would indeed be unreasonable to require the police to check the possible use of torture by foreign intelligence agencies before exercising their duty to prevent terrorist or other attacks and to protect the lives of human beings being endangered. Yet these preventive actions are not carried out in the framework of any proceedings envisaged in Article 15. As it was seen above, the application of Article 15 presupposes the assessment of evidence in a formal procedure which leads to a decision of the respective court or administrative agency. If the police receive information from a foreign intelligence service that a particular person is planning to commit a terrorist attack, they might detain the person even if they have reason to believe that the information may have been obtained by torture. On the contrary, a formal detention certificate—such as the one issued by the British Home Secretary under the Immigration and Asylum Part of the Anti-Terrorism, Crime, and Security Act 2001—is clearly an administrative decision arrived at in the course of formal administrative proceedings to which Article 15 CAT applies. Despite the fact that the December 2005 ruling of the House of Lords only applied to the judicial proceedings before the Special Immigration Appeals Commission and the Court of Appeal, it is beyond doubt that the standards developed by the House of Lords apply not only to the judicial bodies deciding on the lawfulness of deprivation of liberty in the second and third instance but also to the Home Secretary who issues the detention order in the first instance. In other words, if the Home Secretary bases his or her decision on foreign intelligence information which might have been extracted by torture, he or she must investigate by all appropriate means before issuing a formal detention certificate whether or not the respective statements are the result of torture.92

44  Most importantly, it shall be noted that even when such evidence does not fall within the scope of application of this provision because the level of formality requested by Article 15 is not met, cooperation with foreign States practising torture, for example, by receiving and using torture tainted intelligence for operational purposes may still be prohibited under Article 4 of the Convention as well as under international law, in that it may amount to complicity in torture.93

(p. 431) 3.3  Meaning of ‘established’

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.

3.4  Applicability to Statements Obtained as a Result of Cruel, Inhuman and Degrading Treatment or Punishment

55  Whereas Article 12 of the 1975 Declaration applies both to torture and other cruel, inhuman or degrading treatment, Article 15 CAT only refers to torture. This has to do with the fact that during the drafting of the CAT, States could not reach consensus on which State obligations should apply to all forms of ill-treatment and which (p. 437) to torture only. The compromise in Article 16, ie the deliberate decision to include a non-exhaustive list of CAT provisions which establish State obligations for all forms of ill-treatment, causes difficult questions of interpretation. In fact, many States wished to apply Article 15 to all forms of ill-treatment.140

56  In its 2008 General Comment on Article 2, the Committee considered that ‘articles 3 to 15 are likewise obligatory as applied to both torture and ill-treatment’.141 Similarly, in the reporting procedure, it suggested repeatedly that statements made as a result of cruel, inhuman or degrading treatment (and therefore not only torture) may not be used as evidence in any proceedings.142 But in the individual complaint procedure the Committee has decided in the negative and in the 2014 decision of Kirsanov v Russia it explicitly clarified that

[w]ith regard to the alleged violations of articles 14 and 15 of the Convention, the Committee notes that the scope of application of the said provisions only refers to torture in the sense of article 1 of the Convention and does not cover other forms of ill-treatment. Moreover, article 16, paragraph 1, of the Convention, though specifically referring to articles 10, 11, 12 and 13, does not mention articles 14 and 15 of the Convention. …143

57  In the academic literature, the opinion seems to prevail that Article 15 applies exclusively to torture.144 Yet a systematic interpretation of Articles 15 and 16 in light of the travaux préparatoires leads to the conclusion that those CAT provisions which are directly related to criminal law only apply to torture, whereas the more preventive obligations of States can also apply to all forms of ill-treatment.145 Since one of the purposes of Article 15 is connected to criminal proceedings, one could argue that it applies exclusively to torture. On the other hand, Article 15 also has a clear and important preventive purpose, which supports a broader interpretation. Moreover, the developments recalled above show that Article 15 does not apply only to criminal proceedings but also to civil and administrative ones, as well as to any other formal proceedings. Hence, Article 15 cannot be regarded as a provision only ‘related to criminal law’. Lastly, the application of the exclusionary rule to other forms of ill-treatment is widely supported by the practice of other international bodies, including the HRC146 and the SRT,147 as well as the practice of several States.148

(p. 438) 58  In any event, even if Article 15 was to apply to other forms of ill-treatment, the result would not be that different. This provision aims at preventing confessions and other statements obtained by coercion from being used as evidence in judicial or administrative proceedings, and to extract a confession or information during interrogation of a detainee is, the classical purpose of torture as defined in Article 1.149 In other words, if interrogation methods aimed at obtaining a confession or other information cause severe pain or suffering, then they amount not only to cruel and inhuman treatment, but also to torture. If they do not reach this level of pain or suffering, they are not prohibited by the CAT unless their particularly humiliating nature can be considered as degrading treatment. The only question of interpretation which remains, therefore, is whether a statement which has been obtained by degrading treatment causing non-severe pain or suffering may be invoked as evidence in any proceedings. In light of the preventive purpose of Article 15, this question can be answered in the affirmative although its practical significance seems to be limited.150

3.5  Exception to the Rule

59  Article 15 provides in its last part that the exclusionary rule does not apply ‘against a person accused of torture as evidence that the statement was made’. This exception clause is not contained in Article 12 of the 1975 Declaration. It appears first in Article VII of the IAPL draft.151 In comments based on Article 13 of the original Swedish draft, the Austrian delegate sought