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Publication

Tainted by Torture

Examining the Use of Evidence Obtained by Torture

May 16, 2018 - Torture
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Executive summary

Over the last century, there has been an international movement towards the eradication of torture. Despite being recognised globally as heinous, inhuman and criminal, torture continues to be a daily reality in many parts of the world. In particular, torture continues to be used by police and others as a short-cut in criminal investigations, as a means of exerting control over detainees, to gather ‘intelligence’, to solicit leads and to obtain confessions.

International law prohibits reliance on ‘torture evidence’ because: (a) statements made as a result of torture are involuntary, inherently unreliable and violate the right to a fair trial; (b) to rely on such evidence undermines the rights of the torture victim; (c) it indirectly legitimises torture and in so doing taints the justice system; and (d) prohibiting reliance on the fruits of torture acts as a form of deterrence and prevention. The exclusionary rule plays a key role in the legal architecture underpinning the prohibition on torture. Sadly, reliance on ‘torture evidence’ in criminal cases continues to be routine in many places.

Despite the requirement under international law to exclude ‘torture evidence’, some countries simply fail to do so. More commonly, countries have an exclusionary rule, but one which is incomplete:

i) Some countries rely on general rules for the exclusion of illegally obtained evidence, which requires some form of judicial discretion or balancing act in deciding whether to admit the evidence

ii) A number of countries only prohibit reliance on statements obtained from the torture of the defendant and not evidence obtained from the torture of a third party.

iii) Many legal systems focus on the prohibition on ‘confessions’ or ‘statements’, without any reference to physical or derivative evidence which has resulted from torture. International law is also unclear on derivative evidence or ‘fruits of the poisoned tree’.

Many criminal justice systems rely on confessions as the main evidence on which convictions are founded. This exacerbates the risk of coercion, including torture. In response, some countries apply special protections, including a requirement for corroborating evidence and/or the need to demonstrate that procedural safeguards have been complied with. The need to move away from coercive policing practices and confession-based justice is gaining traction at an international level as a key protection against torture. A universal set of standards for non-coercive interviewing methods and procedural safeguards has, for example, been recommended.

Even where a country has a clear exclusionary rule in law, this does not always succeed in precluding reliance on ‘torture evidence’ in practice. It is crucial to have a fair and effective legal procedure for identifying and excluding ‘torture evidence’. Many countries fall short here, for example, because they place an unreasonable burden on the defendant to prove that torture occurred or because they rely too heavily on types of evidence which are not practical to obtain. Many other factors affect whether exclusionary rules work, including whether there are trained professionals applying the rules; broader institutional incentives and cultures at play in the justice system; and practical barriers, such as failures to protect torture victims in detention.

In practice, where torture is identified in the course of proceedings to exclude evidence, there is rarely an obligation on competent officials to initiate a criminal action. In general, criminal investigations require a formal complaint to be made by the victim. The exclusionary rule is also just one of a wide range of remedies and reparations for victims mandated by international law.

To make the international prohibition on reliance of ‘torture evidence’ more effective, our recommendations are as follows:

  1. Given its crucial role in the prohibition on torture, the exclusionary rule should be accorded a more prominent role in the work undertaken to combat torture. In particular, we would urge the UN Committee Against Torture to produce a general comment on the topic.
  2. We recommend that domestic legal regimes be reviewed to ensure compliance with existing international standards on the exclusion of ‘torture evidence’. This should, for example, form a part of country reviews by relevant treaty monitoring bodies. Where states fail to remedy shortfalls in protection, this should become a focus for advocacy, including by domestic civil society actors.
  3. Clarity is needed on the extent to which the exclusionary rule covers derivative evidence and evidence obtained as a result of inhuman or degrading treatment or punishment. This should be the focus of further research and we urge the UN Committee Against Torture to address these issues in a general comment.
  4. We urge those working to advance compliance with the exclusionary rule to consider what legal procedure is applied to identify and exclude ‘torture evidence’, taking account of applicable international standards on the right to a fair trial. Domestic legal regimes should, in particular, be reviewed to ensure compliance with international standards on the burden of proof for establishing whether evidence was obtained as a result of torture.
  5. Concerns about reliance on ‘torture evidence’ will not be solved by changes to the law alone. We recommend approaches which address how the law is operating in practice. This should include the collection of statistical data on the application of exclusionary regimes as well as qualitative engagement with the stakeholders who are key to making the law work in practice.
  6. Reducing reliance on confessions in criminal prosecutions has the potential to address a major driver of torture. We welcome the growing recognition that increasing respect for suspects’ procedural rights in the period following arrest is important to torture prevention. We recommend an increased focus on rights-compliant police investigations.
  7. We recommend that states review the process for ensuring accountability where torture is identified in the course of proceedings to exclude evidence: this should not rely on a complaint by the victim. Similarly, whilst the exclusionary rule should be recognised in part as a means of reparation, it is not a sufficient form of remedy or reparation.

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Conclusions and recommendations

International human rights law prohibits reliance on evidence obtained as a result of torture. This rule plays a key part in the overall legal architecture which underpins the absolute prohibition on torture. Reliance on ‘torture evidence’ is prohibited because: (a) it is involuntary, inherently unreliable and violates the right to a fair trial; (b) to rely on such evidence undermines the rights of the torture victim; (c) it indirectly legitimises torture and in so doing taints the justice system; and (d) prohibiting reliance on the fruits of torture acts as a form of deterrence and prevention.

Given its crucial role in the prohibition on torture, the exclusionary rule should be accorded a more prominent role in the work undertaken to combat torture. In particular, we would urge the UN Committee Against Torture to produce a general comment on the topic.

Despite this clear legal obligation, some countries do not prohibit reliance on ‘torture evidence’ at all. More commonly, countries have some form of exclusionary rule but this is incomplete and fails to meet the key components of the rule as defined by international law:

i) Some countries do not have an absolute prohibition on reliance on ‘torture evidence’: frequently, countries require the courts to carry out a balancing act when deciding whether to admit unlawfullyobtained evidence, even in circumstances where that evidence is obtained as a result of torture.

ii) A number of countries prohibit reliance on statements obtained from the torture of the defendant, i.e. a confession obtained as a result of torture. However, it is quite common for exclusionary regimes not to extend to evidence obtained from the torture of a third party, i.e. when a person (who is not the defendant) is tortured and, as a result, implicates the defendant.

We recommend that domestic legal regimes be reviewed to ensure compliance with existing international standards on the exclusion of ‘torture evidence’. This should, for example, form a part of country reviews by relevant treaty monitoring bodies. Where states fail to remedy shortfalls in protection this should become a focus for advocacy, including by domestic civil society actors.

There are two areas in particular on which international standards do not provide clear guidance as to the scope of the exclusionary rule. This is reflected in (and perhaps results from) varying approaches in domestic law:

i) There is confusion about the application of the exclusionary rule to evidence indirectly derived from torture, i.e. physical evidence located due to a statement made as a result of torture. Although some countries do have blanket prohibitions on relying on such evidence, most apply a range of considerations to determine whether this kind of derivative evidence should be excluded.

ii) There is also a lack of clarity about the extent to which the exclusionary rule applies to evidence obtained as a result of cruel, inhuman or degrading treatment or punishment.

Clarity is needed on the extent to which the exclusionary rule covers derivative evidence and evidence obtained as a result of inhuman or degrading treatment or punishment (as opposed to ‘torture’). This should be the focus of further research and we urge the UN Committee Against Torture to address these issues in a general comment.

In addition to having appropriate domestic laws requiring the exclusion of ‘torture evidence’, states must provide a fair and effective procedure to apply those laws in practice. Variations in countries’ criminal procedures make it unworkable to develop a ‘one size fits all’ approach for identifying and excluding ‘torture evidence’. Nonetheless, certain minimum standards, identified from international standards on fair trial rights, do need to be met. Currently, many countries fail to meet such standards and, in particular, place an unreasonable burden on the alleged torture victim to ‘establish’ that evidence was obtained by torture.

We urge those working to advance compliance with the exclusionary rule to consider the legal procedure to be applied in relation to the identification and exclusion of ‘torture evidence’, taking account of applicable international standards on the right to a fair trial. In particular, domestic legal regimes should be reviewed to ensure compliance with international standards on the burden of proof for establishing whether evidence was obtained as a result of torture.

A lack of data on the use of exclusionary regimes precludes an assessment of how legal frameworks are operating in practice. However, it is clear that, in practice, preventing reliance on ‘torture evidence’ requires more than just good domestic laws. Other factors include: (a) access to trained professionals and an understanding of the broader institutional incentives at play in the justice system as a whole or in individual cases; and (b) practical barriers to the application of the exclusionary rule such as failures to protect torture victims, the inability to obtain evidence and the operation of incentives to plead guilty rather than challenging evidence in court.

Concerns about reliance on ‘torture evidence’ will not be solved by changes to the law alone. We recommend approaches which address how the law is operating in practice. This should include the collection of statistical data on the application of exclusionary regimes as well as qualitative engagement with the stakeholders who are key to making the law work in practice.

In some countries, the main evidence on which convictions are founded is confessions. This creates a considerable risk of coercion, including torture. In response, some countries apply special legal protections in the context of confessions, including a requirement for corroborating evidence and/or the need to demonstrate that procedural safeguards have been complied with during police interviews. This approach is starting to gain traction at an international level as a protection against torture.

Reducing reliance on confessions in criminal prosecutions has the potential to address a major driver of torture. We welcome the growing recognition that increasing respect for suspects’ procedural rights in the period following arrest is important to torture prevention. We recommend an increased focus on rightscompliant police investigations.

The exclusion of ‘torture evidence’ should operate as part of the wider anti-torture architecture under international law. This includes accountability (through criminal or disciplinary sanctions). However, in practice, where torture is identified in the course of proceedings and the related evidence is excluded, there is rarely an obligation on competent officials to initiate a criminal action against the perpetrators. In general, criminal investigations require a formal complaint to be made by the victim. The exclusionary rule is also just one of a wide range of remedies and reparations for victims that are mandated by international law.

We recommend that states review the process for ensuring accountability where torture is identified in the course of proceedings and the related evidence is excluded: this should not rely on a complaint by the victim. Similarly, whilst the exclusionary rule should be recognised, in part, as a means of reparation, it is not a sufficient form of remedy or reparation on its own.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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