Human Rights Council Twenty-fifth session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez*
The present report focuses on the scope and objective of the exclusionary rule in judicial proceedings and in relation to acts by executive actors.
The Special Rapporteur elaborates on the exclusionary rule and its fundamental role in upholding the prohibition of torture and other cruel, inhuman or degrading treatment or punishment by providing a disincentive to carry out such acts.
The present report identifies State practices in this regard and elaborates on the rationale and scope of the exclusionary rule in relation to formal proceedings. The second part of the report focuses on the use of information obtained by torture or other ill-treatment by executive agencies, including the collecting, sharing and receiving of such information from other States, and its relation to the absolute prohibition of acts of torture and other ill-treatment and the obligation of the State to prevent and discourage such acts. In this context, the report also elaborates on the threshold for State responsibility for complicity in torture or other ill-treatment, or an internationally wrongful act.
The Special Rapporteur finds that all actions of executive agencies should be reviewed under the absolute prohibition of torture and that the standards contained in the exclusionary rule should apply, by analogy, to the collecting, sharing and receiving of information by executive actors.
I. Introduction 1–2 3
II. Activities of the Special Rapporteur 3–16 3
A. Upcoming country visits and pending requests 3–5 3
B. Highlights of key presentations and consultations 6–16 3
III. Use of information tainted by torture and the exclusionary rule 17–62 4
A. Use of information tainted by torture and the exclusionary rule in
judicial proceedings 20–36 5
B. Use by executive agencies of information tainted by torture and
the exclusionary rule 37–62 10
IV. Conclusions and recommendations 63–83 16
A. Conclusions 63–81 16
B. Recommendations 82–83 19
The present report is submitted to the Human Rights Council in accordance with Council resolution 16/23.
The report of the Special Rapporteur on his visit to Ghana is contained in document A/HRC/25/60/Add.1. Document A/HRC/25/60/Add.2 contains observations made by the Special Rapporteur on cases sent to Governments between 1 December 2012 and 30 November 2013, as reflected in the communications reports of special procedures mandate holders (A/HRC/23/51, A/HRC/24/21 and A/HRC/25/74).
II. Activities of the Special Rapporteur
A. Upcoming country visits and pending requests
The Special Rapporteur plans to visit Mexico from 21 April to 2 May 2014 and Thailand from 4 to 18 August 2014. He also plans to visit Georgia and Guatemala in the period 2014–2015 and is engaged with the respective Governments to find mutually agreeable dates. He also notes with appreciation an outstanding invitation to visit Iraq. The Special Rapporteur, with support from the Anti-Torture Initiative at the Center for Human Rights and Humanitarian Law at American University Washington College of Law, plans to conduct follow-up visits to Tunisia and Morocco in 2014.
The Special Rapporteur has reiterated his request for an invitation from the Government of the United States of America to visit the detention centre at Guantanamo Bay, Cuba, on conditions that he can accept. His request to visit prisons in the United States, renewed on 3 October 2013 and 3 March 2014, is still pending.
After the second postponement of his planned visit to Bahrain, the Special Rapporteur has reiterated his request to the Government to suggest new dates. That request is still pending.
B. Highlights of key presentations and consultations
On 18 October 2013, the Special Rapporteur held a dialogue with the families of prisoners in solitary confinement in Los Angeles, United States, and delivered a speech at the University of California at Berkeley entitled “The intersection of solitary confinement and international human rights.”
On 22 October 2013, the Special Rapporteur presented his interim report (A/68/295) to the General Assembly and participated in a side event entitled “Review of the Standard Minimum Rules for the Treatment of Prisoners”. He also met with representatives of the Permanent Missions of Brazil, Denmark and Ghana.
On 28 October 2013, the Special Rapporteur submitted a written statement and testified during a public hearing on the human rights situation at Guantanamo Bay naval base before the Inter-American Commission on Human Rights in Washington, D.C.
On 4 November 2013, the Special Rapporteur participated in an expert consultation on the use by executive agencies of information tainted by torture, organized by the Association for the Prevention of Torture in Geneva, Switzerland.
On 5 November 2013, the Special Rapporteur met with the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment in Strasbourg, France.
From 8 to 14 November 2013, the Special Rapporteur conducted a visit to Ghana at the invitation of the Government.
On 15 November 2013, the Special Rapporteur discussed the topic of reprisals during a meeting with members of the Committee against Torture and the Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in Geneva.
On 9 December 2013, the Special Rapporteur gave a keynote speech on the theme: “What steps can the international community take to eradicate torture?” at the fifth annual Baha Mousa memorial lecture in London.
From 10 to 12 February 2014, the Special Rapporteur conducted a follow-up visit to Tajikistan at the invitation of the Government, to assess the level of implementation of his recommendations and identify remaining challenges regarding torture and other cruel, inhuman or degrading treatment or punishment.
On 25 February 2014, the Special Rapporteur submitted a written statement to the Subcommittee on the Constitution, Civil Rights and Human Rights of the Senate Judiciary Committee and attended the second hearing on solitary confinement of the Subcommittee, held in Washington, D.C.
On 28 February 2014, the Special Rapporteur welcomed the publication entitled “Torture in health-care settings: reflection on the Special Rapporteur on Torture’s 2013 thematic report” published by the Center for Human Rights and Humanitarian Law.
III. Use of information tainted by torture and the exclusionary rule
The exclusionary rule is fundamental for upholding the prohibition of torture and other cruel, inhuman or degrading treatment or punishment (other ill-treatment) by providing a disincentive to carry out such acts. It contains an absolute prohibition on the use of statements made as a result of torture or other ill-treatment in any proceedings.1 However, in practice, this prohibition is not always upheld. Moreover, the wording of article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment may be its weakest aspect and the one most frequently flouted by States that practice torture. Some States interpret “any proceedings” narrowly, to mean judicial proceedings of a criminal nature against the person who has made the statement. More importantly, some insist that the exclusionary rule is triggered only when it is established that the statement was made under torture. However, the exclusionary rule is a norm of customary international law and is not limited to the Convention, which is only one aspect of it. The exclusionary rule must be considered as one element under the overarching absolute prohibition against acts of torture and other ill-treatment and the obligation to prevent such acts.
Of particular concern are attempts to undermine the prohibition of torture or other ill-treatment by using tainted statements outside of “proceedings”, narrowly defined, for other purposes, such as intelligence gathering or covert operations. Cooperation in sharing intelligence between States has expanded significantly in the fight against terrorism2 and some police, security and intelligence agencies (collectively, executive agencies) have shown a willingness to receive and rely on information likely to be obtained through torture and other ill-treatment and to share that information with one another. The global trend of giving executive agencies increased powers of arrest, detention and interrogation have retracted the traditional safeguards against torture or other ill-treatment and led to further abuse of individuals. The practice by executive agencies of using information obtained by torture or other ill-treatment outside court proceedings must be examined to ensure that the prohibition against torture is upheld, a practice made even more dangerous because of the secrecy and lack of transparency that surrounds it. Regrettably, some States have diluted the cardinal principles necessary for preventing and suppressing torture and other ill-treatment.
The present report will elaborate on the scope and objective of the exclusionary rule in judicial proceedings and in relation to acts by executive actors.
A. Use of information tainted by torture and the exclusionary rule in judicial proceedings
Both the Human Rights Committee and the Committee against Torture have concluded that the exclusionary rule forms a part of, or is derived from, the general and absolute prohibition of torture and other ill-treatment.3 In article 12 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (resolution 3452 (XXX)), the General Assembly expressly stated that “any statement which is established to have been made as a result of torture or other cruel, inhuman or degrading treatment or punishment may not be invoked as evidence … in any proceedings.” Article 15 of the Convention provides that “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.”4
The rationale behind the exclusionary rule is manifold and includes the public policy objective of removing any incentive to undertake torture anywhere in the world by discouraging law enforcement agencies from resorting to the use of torture. Furthermore, confessions and other information extracted under torture or ill-treatment are not considered reliable enough as a source of evidence in any legal proceeding. Finally, their admission violates the rights of due process and a fair trial.5
As the prohibition against torture and other ill-treatment is absolute and non-derogable under any circumstances, it follows that the exclusionary rule must also be non-derogable under any circumstances, including in respect of national security.6 Further, since the prohibition of torture and other ill-treatment is part of customary international law, it follows that the exclusionary rule, as a component of that prohibition, must also apply to States that are not party to the Convention against Torture.7 In the aftermath of the attacks of 11 September 2001, the Committee against Torture specified that the obligations in article 2, paragraph 2, of the Convention, whereby “‘no exceptional circumstances whatsoever…may be invoked as a justification of torture’”; the exclusionary rule contained in article 15; and the prohibition of cruel, inhuman or degrading treatment or punishment in article 16 are three provisions of the Convention that “‘must be observed in all circumstances’”.8
Some progress has been made. Confessions, once considered the “queen of evidence”, now require corroboration in most countries. Extrajudicial confessions are not generally considered as full evidence or given weight as presumptive or even circumstantial evidence. However, the practices in a number of countries show that forced confessions are still deemed admissible and that judges and prosecutors fail to investigate promptly and impartially allegations of torture or other ill-treatment.
In some States, due to a lack of capacity and expertise in investigating crimes, extracting confessions through ill-treatment or torture is still seen as the most efficient or only way to secure evidence and conviction. In this regard, the Special Rapporteur draws attention to the international standards intended to provide assistance to national law enforcement, including the Code of Conduct for Law Enforcement Officials and the Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment. To ensure compliance with international standards, all applicable procedures should be reviewed regularly. During his country visits, the Special Rapporteur has observed that some States are unable to provide information on cases where evidence has been excluded because it was either found to have been obtained under torture, or the national provisions did not accurately reflect the exclusionary rule by, for example, not defining the measures to be taken by courts if evidence appears to have been obtained through torture or other ill-treatment, or by not putting the mechanisms in place by which evidence may be declared inadmissible. The legislation of some countries does meet the standards set by the exclusionary rule, but that is not true of all countries.
In jurisdictions where independent medical examinations must be authorized by investigators, prosecutors or penitentiary authorities, those authorities have ample opportunity to delay authorization, so that any injuries deriving from torture have healed by the time such an examination is conducted. Additionally, such medical and forensic reports are often of such poor quality that they provide little assistance to judges or prosecutors when deciding whether to exclude statements. Some judges are willing to admit confessions without attempting to corroborate the confession with other evidence, even if the person recants before the judge and claims to have been tortured. In addition, cases submitted to the courts are sometimes based solely on confessions by the accused and lack any material evidence, or else judges establish prerequisites, such as visible or recognizable marks, for ruling that evidence obtained under torture or other ill-treatment is invalid. The Committee against Torture has stated that physical marks or scars should not be a prerequisite for ruling that evidence obtained under torture is invalid (CAT/C/SR.1024, para. 29). In addition, in order to show that evidence has not been obtained by torture, a court must rely on evidence other than the testimony of the investigating officer.9
Although the exclusionary rule is not expressly listed among the rules that apply both to torture and to cruel, inhuman or degrading treatment,10 the Committee against Torture, as the authoritative interpreter of the Convention, has made it clear that statements and confessions obtained under all forms of ill-treatment must be excluded.11 That ambiguity has led some courts to decide that the exclusionary rule does not apply when the ill-treatment that has resulted in a confession does not reach the gravity required for torture. The Human Rights Committee has authoritatively interpreted article 7 of the International Covenant on Civil and Political Rights and found that the exclusionary rule applies to both torture and other ill-treatment.12 Similarly, the Committee against Torture in its general comment No. 2 (para. 6), has held that “articles 3 to 15 of the Convention are likewise obligatory as applied to both torture and other ill-treatment”13 and article 12 of the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment explicitly excludes statements made under cruel, inhuman or degrading treatment or punishment.
Some States have deemed evidence obtained in a third State as a result of torture or ill-treatment admissible, as long as this evidence had been extracted without the complicity of the authorities. However, the exclusionary rule 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 (CAT/C/CR/33/3, para. 4).
The exclusionary rule applies not only where the victim of the treatment contrary to the prohibition of torture or other ill-treatment is the actual defendant, but also where third parties are concerned. Such a conclusion is plainly intended by the wording of article 15, which provides that “any statement…in any proceedings” shall come within the scope of exclusion and not just one given by the accused in a domestic court. The Committee against Torture, the European Court of Human Rights and the Inter-American Court of Human Rights have firmly ruled against the use of evidence tainted by torture that has been extracted from third parties, regardless of whether such evidence may be used in domestic proceedings or in proceedings in a third State.14
The exclusionary rule extends not only to confessions and other statements obtained under torture, but also to all other pieces of evidence subsequently obtained through legal means, but which originated in an act of torture.15 In some jurisdictions, this approach is called the “fruit of the poisonous tree” doctrine. There is no doubt that this includes real evidence obtained as a result of ill-treatment but falling short of torture.16
The admission of evidence, including real evidence obtained through a violation of the absolute prohibition of torture and other ill-treatment in any proceedings, constitutes an incentive for law enforcement officers to use investigative methods that breach those absolute prohibitions. It indirectly legitimizes such conduct and objectively dilutes the absolute nature of the prohibition.17 The exclusionary rule is not limited to criminal proceedings but extends to military commissions, immigration boards and other administrative or civil proceedings.18 Moreover, the use of the phrase “any proceedings” suggests that a broader range of processes is intended to be covered; essentially, any formal decision-making by State officials based on any type of information.19
2. Burden of proof
It is of great concern that, in practice, the burden of proof on the admissibility of material obtained by torture or other ill-treatment in courts, seems to lie with the defendant rather than with the State, creating a real risk that such evidence is admitted in court because the individual is unable to prove that it was obtained under torture. The Special Rapporteur finds that the central question is the interpretation of the word “established” in article 15 of the Convention. In this context, it is necessary to have due regard for the special difficulties in proving allegations of torture, which is often practised in secret by experienced interrogators who are skilled at ensuring that no visible signs are left on the victim. In addition, all too frequently those who are charged with ensuring that torture or other ill-treatment does not occur are complicit in its concealment.
In their judgment on the case of A and others v. Secretary of State for the Home Department, a majority of the House of Lords agreed that evidence should be excluded from judicial proceedings if it is established, by means of diligent inquiries into the sources and on a balance of probabilities, that the evidence invoked was in fact obtained by torture. However, three Law Lords, in a minority opinion, strongly rejected the test applied for the burden of proof preferred by the majority, arguing that it placed a burden on the appellants that they can seldom discharge. They concluded that “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet”,20 thereby effectively denying detainees the standard of fairness and undermining the effectiveness of the Convention.
Indeed, this test in effect places the burden of proof on the appellant to put forward evidence to satisfy the court that it is more likely than not was obtained under torture or other ill-treatment. The Special Rapporteur has held that the applicant is only required to demonstrate that his or her allegations are well founded, thus that there are plausible reasons to believe that there is a real risk of torture or ill-treatment, and the burden of proof should shift to the prosecution and the courts. The Committee against Torture has also consistently ruled that the burden of proof rests with the State, stating that the general nature of [article 15] derives from the absolute nature of the prohibition of torture and therefore implies an obligation for each State party to ascertain whether or not statements included in an extradition procedure under its jurisdiction were made under torture. It is therefore for the State to investigate with due diligence whether there is a real risk that a confession or other evidence was not obtained by lawful means, including torture or other ill-treatment.21 Similarly, in the case of El Haski v. Belgium,the European Court of Human Rights held that it would be necessary and sufficient for the complainant, if the exclusionary rule were to be invoked, to show that there was a “real risk” that the impugned statement was obtained under torture or other ill-treatment.22 Similarly, the African Commission on Human and Peoples’ Rights held that “once a victim raises doubt as to whether particular evidence has been procured by torture or other ill-treatment, the evidence in question should not be admissible, unless the State is able to show that there is no risk of torture or other ill-treatment”.23