The Exclusionary Rule: A guide to jurisprudence

The following cases have been analysed with reference to their relevance to the exclusionary rule only, and should not be taken as a general summary of the case.

Committee against Torture

Human Rights Committee

European Court of Human Rights

Inter-American Court of Human Rights

African Commission on Human and Peoples' Rights

National case law

 

Committee against Torture (CAT)

 

Niyonzima v. Burundi, Communication No.514/2012, 21 November 2014

Niyonzima was arrested on 1 August 2006, and held by the National Intelligence Service. On denying involvement in an attempted coup, he was violently beaten. Each time it seemed that the beating would prove fatal or he would lose consciousness, a brief halt was called, after which the beating resumed until Niyonzima confessed. The sessions left Niyonzima bleeding profusely and on the verge of unconsciousness. On 9 August, he was brought before a prosecutor and charged with involvement in the coup attempt. Afterwards he was held in Mpimba prison for more than 5 months.

Niyonzima claimed that proceedings against him relied on confessions obtained through torture. Through his counsel, he had disputed the probative value of his confession at each stage of the proceedings, without success. In their consideration, the CAT noted that the statements signed under torture served as the ground for the charges against Niyonzima and as a justification for keeping him in detention; and that Burundi had not refuted torture allegations documented through a medical certificate.

Thus, in conclusion the CAT held that Burundi was under an obligation to verify the substance of the author’s claims and must show that his confessions had not been obtained under torture. By not carrying out such verification and by using such confessions in judicial proceedings, the State party violated its obligation under article 15 of the Convention.

 

Ali Aarrass v. Morocco, Communication No.477/2011, 24 June 2014

Ali Aarrass was detained in Spain subject to an international arrest warrant issued by Morocco for membership of a terrorist organisation. He was deported to Morocco in December 2010, despite being granted an interim order to stay his extradition (see related case of CCPR, Ali Aarrass v. Spain, Communication No.2008/2010, 30 September 2014). Almost immediately after arrival, Aarrass alleges he was tortured repeatedly and forced to sign pre-written confessions in Arabic, a language he did not know well.

Despite making multiple complaints about his treatment and requesting to be examined by an independent forensic examiner, little investigative action was taken. At trial, his confession, though tainted by the serious allegations of torture and other ill-treatment, had a decisive impact and Aarrass was convicted and sentenced to 15 years imprisonment.

The Committee considered that the failure to conduct an investigation was plainly incompatible with the Convention. Furthermore, the allegations of torture from Aarrass, as well as questions raised by the Special Rapporteur on Torture during a visit in 2012, gave ample opportunity to Morocco to consider that there was a risk that his confessions were likely obtained by torture. As Morocco failed to examine the allegations, and thereafter convicted Aarrass largely on the basis of his confessions, the Committee ruled that Article 15 had been violated, among other articles.
 

Abdelmalek v. Algeria, Communication No. 402/2009, 13 June 2014

During periods of widespread violence across Algeria in the 1990’s, Mr Abdelmalek, an Algerian soldier, refused to participate in action he considered abusive or unlawful. He later abandoned his post and was considered a deserter. After being arrested on the Tunisian border, he suffered multiple acts of torture, including being forced to swallow water to the point of suffocation, beatings, electric shocks, and being suspended from one foot for hours on end.

A prosecutor later visited him in hospital, but took no action when he complained of his abuse. Abdelmalek was subjected to several further periods of torture, to force him to identify conspirators and to sign papers confessing his own guilt. Despite systematically reporting the torture at each opportunity, no court examined his allegations effectively.

The Committee found a violation of Article 15, considering that the statements and confessions obtained under torture remained in his case file and served as the basis for his conviction.

 

Bairamov v. Kazakhstan, Communication No. 497/2012, 12 June 2014

Mr. Bairamov, was arrested in 2008 in Kazakhstan and put under the custody of Rudny city’s police under suspicion of robbery. After denying the claims, he was beaten several times by two named police officers. The injuries from the beatings were later witnessed by his sister. During his detention, Bairamov was denied fundamental safeguards, including an official registration or access to a lawyer. He was also denied food and sleep.

On being presented to the city prosecutor, Bairamov was warned to repeat the confession that he had been given by police, or else the torture would continue. The prosecutor did not ask how the complainant was treated, and Bairamov later signed a confession. Despite numerous irregularities being documented by the complainant’s mother, no investigation of Bairamov’s alleged abuse was launched. Bairamov was convicted of robbery in a trial that retained his initial confessions.

According to the Committee, the Kazakh courts failed to address the complainant’s allegations and its authorities failed to duly ascertain whether or not statements admitted as evidence were made as a result of torture, in violation of article 15 of the Convention.
 

Evloev v. Kazakhstan, Communication No. 441/2010, 17 December 2013

Mr. Evloev, from Kazakhstan, was arrested in 2008 in the Chechen Republic of the Russian Federation on an international arrest warrant, on the basis of a confession by another individual, who stated that Mr. Evloev and he had committed the murder of a woman and her three minor children. Immediately after the arrest of Mr. Evloev, the confessions used to support his arrest were retracted with an explanation that they were given under duress.

After being returned to Kazakhstan, Mr. Evloev himself faced degrading and humiliating treatment by the police, with the purpose to gain his confession. Although he complained of the ill-treatment, none of the authorities conducted an investigation, but his detention was extended and he was moved from one place to another. Eventually, he signed a confession of committing the crime and was convicted to life imprisonment.

In its decision, the Committee confirmed that the authorities were notified of the allegations of torture, but disregarded them completely. The CAT established that the State failed to comply with its duty to investigate, prevent or punish acts of torture, which constituted multiple violations of the Convention. Moreover, the State violated article 15 of the Convention by admitting evidence in the criminal proceedings, without even investigating the continuous allegations of torture by the complainant.

 

Abichou v. Germany, Communication No. 430/2010, 16 July 2013

Mr. Onsi Abichou, a French national, was arrested in Germany. An international arrest warrant had been issued after another man had been interrogated by Tunisian police and, possibly under duress, named Mr Abichou as an accomplice for drug smuggling. Following the exchange of diplomatic assurances, Mr Abichou’s extradition was agreed.

The CAT heard that torture was routinely used in Tunisia to extract confessions. The Committee further noted that Tunisia had failed to honour its diplomatic assurances in the past, torturing a suspect who had been returned from Italy subject to similar assurances, and heard that Tunisia had tortured other suspects in the same case involving Mr Abichou. On the merits, the CAT considered the complaint exclusively under Germany’s obligations not to refoule a person to a country where there was a real risk of torture, and repeating its long-established position that diplomatic assurances are not sufficient to protect a person from such obvious risks, ruled that Germany had violated article 3 of the Convention.

The CAT does not consider that evidence used in the German proceedings to authorise extradition could have been obtained by torture, as a potential breach of the exclusionary rule. This is also an allegation which Interpol fail to address in issuing the warrant. It is regrettable that the Committee does not attempt to address the shortcomings of returning a person to face a justice process which so readily uses torture-tainted evidence.

 

Gallastegi Sodupe v. Spain, Communication No. 453/2011, 28 June 2012

Gallastegi Sodupe was arrested and detained by police where he alleges he was ill-treated in order to force him to confess. He was subsequently convicted after medical reports demonstrated no evidence of torture in detention.

The CAT accepted that Spain had not investigated Gallastegi Sodupe’s claim effectively, but refused to find a violation of article15, despite accepting that the self-incriminating statements of the accused, allegedly obtained by torture, weighed heavily in the proceedings against him.

The CAT considered that the complainant must provide enough information to the Committee that would allow it to conclude that the self-incriminating statement was “in all probability” a result of torture. However, the acceptance by the Committee that the investigation had been flawed demonstrates a clear failure by the State Party to show that no torture had been used in the collection of evidence. Given that the Committee explicitly accepts that the burden rests with the State “to prove that statements made by the accused have been given of their free will”, the Committee’s decision is regrettable and appears to contradict its earlier finding in Ktiti (below).


Ktiti v. Morocco, Communication No.419/2010, 5 July 2011

Ktiti was detained in Morocco, as the subject of a deportation request from Algeria based on evidence generated from the alleged torture of an unrelated person detained in Algeria. This had been substantiated with the reports of family members who had visited the Algerian detainee and observed visible injuries.

The Committee found that as Morocco had not investigated the allegation pursuant to its obligation under the Convention, and had relied on information allegedly obtained through torture in order to deport Ktiti, it had violated article15 of the Convention.

Blanco Abad v. Spain, Communication No.59/1996, 14 May 1998

P.E. v. France, Communication No.193/2001, 21 November 2002

G.K. v. Switzerland, Communication No. 219/2002, 15 May 2003

Three cases all involved the alleged torture of female ETA members by Spanish authorities. In Blanco Abad v. Spain, the alleged violation of article15 was declared inadmissible on the basis that that the impugned statement had been excluded by the judge.

In P.E. v. France, the CAT examined the possibility that the article applied to extradition proceedings. Though they finally refused to find a violation of article15, the CAT does accept that extradition proceedings are subject to article15. The decision not to find a violation of article 15 has been criticised by academics, on the basis that the complaint of torture had been based on ample evidence and the decision of the Spanish court was still pending when France took the decision to extradite. The CAT also examined the burden of proof issue in relation to extradition, finding that even outside criminal proceedings, the State Party, rather than the detainee, has the obligation to determine the truth of the allegation.

Finally, in G.K. v. Switzerland, the Committee also rejected the alleged violation of article15 on the basis that the Spanish authorities had closed the criminal proceedings against the complainant’s alleged torturers prior to the deportation decision. The decision again reinforces that the article applies to any proceedings, as a function of the absolute nature of the prohibition on torture.

Halimi-Nedyibi v. Austria, Communication No.8/1991, 18 November 1993

In Halimi-Nedyibi v. Austria the CAT examined issues of burden of proof in relation to a complaint that evidence was obtained by torture, recognizing the difficulty that complainants have to ‘establish’ a statement was obtained by torture. Rather than answering several questions over procedure and jurisdiction, the Committee focused exclusively on medical opinion evidence to show that the complaint of ill-treatment could not be sustained.

See also:

CAT, E.E. v. The Russian Federation, Communication No. 479/2011, 16 July 2013 (ruled inadmissible)

 

Human Rights Committee

 

Zhuk v Belarus, Communication No. 1910/2009, 5 November 2013

Mrs. Zhuk filed a complaint on behalf of her son, who had been convicted of murder and sentenced to death in July 2009. Mrs. Zhuk’s complaint included allegations that her son was arbitrarily detained, deprived of his right to legal representation, and had been compelled to confess guilt through ill-treatment in detention.

The Human Rights Committee recalled its settled practice that the safeguard in article 14(3)(g) of the ICCPR should be understood in terms of an absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The CCPR noted that where no alternative evidence is presented by the State party, due weight must be given to the author’s account that his confession had been obtained by ill-treatment, and consequently found violations of articles 7 and 14(3)(g).

 

Chiti v. Zambia, Communication No.1303/2004, 28 August 2012

In 1997, Mr Chiti was arrested by police on suspicion of involvement in an attempted coup d'etat, and later charged with treason. Over a period of nine days Mr Chiti was held incommunicado, denied access to a lawyer, and repeatedly beaten using techniques intended to cause severe pain and suffering. As a result of the torture, Mr Chiti signed a number of statements implicating senior politicians in the attempted coup.

In failing to deny the alleged torture, the Committee found a violation of ICCPR article 7, noting that the treatment endured amounted to torture both for Mr Chiti and his family.

The CCPR further considered that the statements signed by Mr Chiti, and extracted by torture (again unrefuted by Zambia), also constituted a violation of article 14(3)(g) of the Covenant. The Committee recalled its General Comment No.32 in which it insisted the right not to testify against oneself must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. The Committee recalled its earlier rulings, holding that where evidence is alleged to have been obtained by torture, "the burden is on the State to prove that statements made by the accused have been given of their own free will."
 

Musaev v. Uzbekistan, Communication no.1914, 1915, and 1916/2009, 21 March 2012

Musaev alleged several violations of the Covenant, including repeated subjection to psychological and physical pressure to force him to confess guilt. The Committee noted that the State Party did not provide adequate consideration of the claims of torture and forced confessions either during the pre-trial phase or when alleged in court. The CCPR therefore found a violation of Musaev’s rights, pursuant to ICCPR articles 7 and 14(3)(g).

 

Jumaa v. Libya, Communication No. 1755/2008, 19 March 2012

The CCPR found that Jumaa had suffered violations of article 7 (prohibition of torture) during his interrogation for alleged crimes, and that confessions obtained as a result had been used against Jumaa in violation of his right to a fair trial, pursuant to article 14.

 

Gunan v. Kyrgyzstan, Communication No. 1545/2007, 25 July 2011

The author was arrested in Kazakhstan, but on his extradition to Kyrgyzstan, Gunan was allegedly ill-treated by police for three days, including beatings on his feet with sticks during which time he was denied access to a lawyer. He subsequently signed several incriminating statements which were then used in his criminal trial. Despite complaints against his ill-treatment, the court dismissed his allegations that his confession had been forced and Gunan was later sentenced to death.

In relation to the author’s claim of torture and compulsion to sign statements in the absence of a lawyer, the CCPR found that once a complaint about ill-treatment to article 7 has been filed, a State Party must investigate it promptly and impartially (See its General Comment No.20, at 14). As the State Party had not investigated the claims, it had failed to consider the allegations sufficiently and violated ICCPR articles 7 and 14(3)(g).

 

Aleksandr Butovenko v. Ukraine, Communication no.1412/2005, 19 July 2011

Mr Butovenko was arrested in 1999 on suspicion of murder. His co-accused confessed to the murder and implicated the author in his statements. Upon detention, Mr Butovenko was subjected to physical and psychological abuses over a period of several days and, without having access to a lawyer, subsequently made incriminating statements. Mr Butovenko later attempted to withdraw his incriminating statements, but was convicted before the Kiev Regional court in December 2000.

The Committee noted that the State Party had not excluded the impugned statements, and asserted that the author had not provided any evidence in support of his allegations of ill-treatment. The CCPR reasserted its long-held jurisprudential doctrine that the burden of proof cannot rest on the author alone, as it is the State Party who is in a much more effective position to conduct investigations and gather evidence (see for instance, Bleier v. Uruguay, Communication No. 30/1978, 29 March 1982). In cases where an accused alleges that the confession was forced, the burden is on the State Party to prove that statements made by the accused have been given of their own free will. Here, the State Party did not offer any arguments refuting the author’s claim to have been ill-treated, and so the CCPR found a violation of ICCPR articles 7 and 14(3)(g).

 

Pavel Kirpo v. Tajikistan (Communication No. 1401/2005), 3 December 2009

Mr Kirpo, an employee of the United Nations Organisation in Tajikistan, was arrested by officials of the Ministry of Security in May 2000, who alleged that he was attempting to commit a robbery in collaboration with others. Mr Kirpo was detained in isolation and when visited by his mother 12 days later, "had lost a lot of weight and was all black and blue." Mr Kirpo's mother alleged he had been tortured with electricity on different parts of his body in order to force him to confess, and beaten with metal batons. In court, complaints of torture were raised by lawyers on behalf of Mr Kirpo, but were simply ignored.

The Committee found that the Tajik court failed in its duty to order a prompt and impartial investigation after being told of the torture, and that in the absence of any reply by the State party, it must give due weight to the allegations of the author. Hence, the CCPR found violations to articles 7 and 14(3)(g) of the Covenant.

 

Nallaratnam Singarasa v. Sri Lanka, Communication No.1033/2001, 23 August 2004

The author of a complaint must not have the burden of proving his confession was made under duress. Rather, the burden of proof rests with the prosecution.

Singarasa was arrested in July 1993 for suspected terrorist activities, and allegedly beaten and tortured repeatedly in detention by members of the Sri Lankan security forces and the police. During this time, Singarasa was denied access to legal counsel and interrogated. Singarasa later made a statement to the Police and forced to put his thumbprint on a confession, written in a language he did not understand. Through appointed counsel, Singarasa was able to request a medical examination, which documented injuries consistent with his account of beatings. In a voir dire hearing to consider the admissibility of the evidence, the High Court concluded that the confession was admissible. The High Court ruled that the Prevention of Terrorism Act (PTA) under which Singarasa was detained provided that any statement may be admitted if made to a senior police officer, provided it was not found to be irrelevant. Pursuant to the PTA, it was for an accused person to assert the irrelevance of such a statement. The confession was admitted, despite the medical evidence collected, and Singarasa was later sentenced to a term of thirty five years.

The Human Rights Committee (CCPR) considered, as an implicit part of the principles that no one may be compelled to confess (ICCPR article 14(3)(g)) and that any accused person must be innocent until proven otherwise (article 14(2)), that it was for the prosecution to prove that the confession was made without duress. The CCPR ruled that the burden had effectively been reversed in Sri Lanka due to the explicit language of the PTA, and that even if the threshold of proof was placed very low, as it was in this case, the burden remained with Singarasa, and therefore a violation of the Covenant was found.

 

Kurbanova v. Tajikistan, Communication No.1096/2002, 12 November 2003

In 2001, Mr Kurbanov attended a police station to testify as a witness, but was detained without a warrant and tortured. Later, he was charged with murder, and tortured again before being forced to sign a confession and renounce his right to a lawyer. After an unfair trial that was limited by a number of fair trial violations, Mr Kurbanov was convicted and sentenced to death.

In its consideration, the CCPR notes that once raised, the burden of proof for allegation of torture should not rest with the victim. They recall that “frequently, the State party alone has access to relevant information.” In light of the fact that the claim of torture was well substantiated, and that the author’s conviction was based on his confession obtained under duress, the CCPR concluded there had been a violation under article 14(3)(g) of the Covenant.

See also:

CCPR, Vasily Yuzepchuk v. Belarus, Communication No. 1906/2009, 17 November 2014

CCPR, Andrei Zhuk v. Belarus (Communication No.1910/2009), 6 November 2013

CCPR, Vladislav Kovalev et al. v. Belarus (Communication No.2120/2011), 27 November 2012

Berry v. Jamaica, Communication No.330/1988, 4 July 1994

CCPR, Estrella v. Uruguay (Communication No.74/1980), 29 March 1983


European Court of Human Rights (ECtHR)

 El Haski v. Belgium (application No.649/08), 25 September 2012

  court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.A court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinA court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinA court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinA court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinA court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinEl Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.Also seeECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletinA court should refuse to admit evidence transmitted from another State if the defendant is able to show the existence of a ‘real risk’ that the evidence was obtained through torture or other ill-treatment, unless the State can prove that it was collected lawfully.

El Haski, a Moroccan national, was arrested and convicted in Belgium in 2005 for association with a terrorist group. Evidence in the case file included statements taken from persons in Morocco who, El Haski submitted, had been subjected to torture and ill-treatment contrary to article 3 of the ECHR. The Belgian Court of Appeal rejected El Haski’s request to have these statements excluded, on the basis that he had not provided any evidence capable of shedding reasonable doubt on the way the evidence had been obtained.

The ECtHR recalled their earlier ruling in Othman (Abu Qatada) v. the UK, noting that where another State offers evidence, but has not offered guarantees that such evidence was collected in a way consistent with Convention obligations, the evidence should be excluded if the complainant demonstrates there was a ‘real risk’ that it had been obtained by torture.

In applying this principle, the Chamber recognised that no guarantees were given by Morocco, and that reports from the UN and NGOs illustrated the real risk that these statements were obtained through torture. The guarantees of fair trial (ECHR article 6) therefore demanded that the statements transmitted by Moroccan authorities be excluded, unless Belgium was otherwise able to prove they had not been obtained by unlawful methods. By failing to apply the correct test, Belgium had placed a burden on El Haski that was virtually impossible to meet, and had rendered the trial unfair, in violation of article 6.

See also

ECtHR, Othman (Abu Qatada) v. the UK (Application no. 8139/09), 17 January 2012

Read Manfred Nowak, the former UN Special Rapporteur on torture’s analysis of Othman (Abu Qatada) v. the UK in the APT Middle East and North Africa e-bulletin

 

 Gäfgen v. Germany, ECtHR Grand Chamber (Application no.22978/05), 1 June 2010

Any confession subsequently repeated as a direct result of a confession made earlier under torture or ill-treatment (known as ‘fruits of the poisonous tree’) will generally cause any trial in which it is admitted to be unfair. However, where real evidence (such as a bloody knife or a forensic evidence on a body) is generated as a direct result of the earlier breach, the particular circumstances of the case may illustrate that the fairness of the trial would not be jeopardised by its admission. Instances which might impact on the fairness of the proceedings include where the subsequent evidence would have been discovered notwithstanding the earlier breach, or where the use of such evidence was not used to prove the case against the accused.

The Grand Chamber considered that confessions generated after the original breach should be excluded as part of the continuous nature of the breach. Where positive action is taken to break the continuous nature of the earlier breach and end the chain of causation, a later-obtained confession may then be admitted as fresh and untainted evidence.

This rather artificial distinction between real evidence and confessions, both ‘fruits’ directly resulting from evidence obtained earlier through torture, is difficult to justify. As the admissibilityof real evidence relies on the impact it has in the subsequent trial, it risks creating a sense of legal uncertainty.

In a partly dissenting opinion, six judges concluded that a clearer rule in relation to the exclusion of evidence in criminal trials should be found. They considered that fairness “presupposes respect for the rule of law and requires, as a self-evident proposition, the exclusion of any evidence that has been obtained in violation of article 3”. Such a conclusion would render any trial unfair where any evidence tainted by the original breach had been admitted, irrespective of whether such evidence was decisive in securing the conviction of the accused or not.

 

Harutyunyan v. Armenia (Application no. 36549/03), 28 June 2007

In 1998, Mr. Harutyanan was drafted into the army. One night, while the applicant was on watch, a serviceman was killed. Mr. Harutyanan was taken to a military police station, beaten with rubber clubs, and his fingernails were also squeezed with pliers. Similar techniques were applied to other suspects. After a day of violent interrogation, one of the other suspects confessed that he had seen Mr. Harutyanan shoot the serviceman. After further coercion, an additional suspect was made to corroborate the account. After a month of further intense torture, Mr. Harutyanan finally submitted and confessed to the accidental shooting of the serviceman, and was charged with murder. He repeated his confession during a crime scene reconstruction, as part of the formal investigation.

In December 1999, Mr. Harutyanan was found guilty of murder. On appeal, the conviction was quashed and the case sent for additional investigation. Mr. Harutyanan asked that his confessions, and those of his fellow servicemen be declared inadmissible, since they had been obtained under torture. This was substantiated by the fact that his interrogators had been jailed for torturing the claimant and other servicemen for their confessions. Nevertheless, at a retrial in 2002 Mr. Harutyanan was again found guilty. The court ruled that his confession and those of fellow servicemen had been confirmed by ‘unconstrained submissions’ they had made at earlier hearings, and the ruling cited other forensic evidence substantiating the guilt of Mr. Harutyanan.

The ECtHR noted that the coerced statements had been heavily relied on during proceedings. Though it accepted that it would not always follow that the admission of unlawfully obtained evidence (such as covert recordings) would violate the accused’s right to a fair trial, in relation to the protection against torture, any tainted statement “should never be relied upon as proof of the victim’s guilt, irrespective of its probative value. Any other conclusion would only serve to legitimate indirectly the sort of morally reprehensible conduct the authors of Article 3 of the Convention sought to proscribe or, in other words, to ‘afford brutality the cloak of law’” (at 63).

The ECtHR further considered that the fact that the tainted confession had been repeated was not relevant. The Court noted that fear from the initial abuse, or the continued threats of abuse, could easily serve to explain the repetition. Hence the credibility of later-repeated statements must be seriously questioned, and such statements should certainly not have been relied on to determine the guilt of Mr. Harutyanan.

Regardless of the impact the torture-tainted statements made on the determination of guilt, the use of such statements rendered the trial as a whole unfair, in violation of ECHR article 6.

 

Jalloh v. Germany (application no. 54810/00), 11 July 2006

As with confessions, ‘real’ evidence should be excluded if it was obtained in violation of the prohibition against torture and other forms of ill-treatment.

In Jalloh, the ECtHR heard that police in Germany had observed the appellant remove wrapped ‘bubbles’ from his mouth and offer them for sale. Believing the bubbles to contain drugs, on his arrest, police forcibly administered an emetic to Mr Jalloh to induce vomiting, causing him to regurgitate a bubble of drugs. Despite his objection to the use at trial of the evidence obtained through the administration of the emetics, the German court relied on the evidence and Mr Jalloh was convicted.

The Grand Chamber of the ECtHR considered whether practices which forced a suspect to provide ‘real’ evidence through ill-treatment or torture were equivalent to coercing a confession, in violation of the privilege against self-incrimination. The Court recalled that while the privilege is primarily concerned with respecting the will of an accused person to remain silent, the court had previously found that it may also apply to contexts in which coercion to obtain real evidence was at issue.

Their analysis compared the facts of the case with other circumstances where evidence is obtained forcibly, but which exists independently of the will of the accused, such as breath, blood, urine hair or voice samples. The Chamber reasoned that in this case, the evidence was obtained as a direct result of treatment that had caused serious physical suffering, which constituted prohibited ill-treatment. The Chamber found that evidence obtained by torture or other ill-treatment, whether in the form of a confession or real evidence, should never be relied on as proof of the victim’s guilt, irrespective of its probative value.

See also:

ECtHR, Affaire Gocmen c. Turquie (Requete No. 72000/01), 17 octobre 2006


Inter-American Court of Human Rights

 

IACtHR, Teodoro Cabrera Garcia and Rodolfo Montiel Flores v. Mexico (Case No. 12, 449), 26 November 2010

In 1999, Cabrera and Montiel, who were two well-known environmental activists, were detained by Mexican soldiers. The men were held incommunicado for five days, and physically and psychologically tortured. After some time, the men were coerced into signing confessions saying that they were in possession of weapons and that they cultivated marijuana.

The domestic trial process against Cabrera and Montiel was wrought with several irregularities. Multiple judges accepted the validity of their confessions despite evidence that they had been obtained through torture. In August 2000, the men were sentenced to prison terms of ten and six years respectively.

In its judgment dated 26 November 2010, the Inter-American Court declared that Mexico was responsible for multiple violations on the Convention. In reaching its conclusion, the Court accepted that Cabrera and Montiel had both been subjected to cruel and inhuman treatments on the days they were detained. Significantly, Mexico was found liable for failing to exclude evidence obtained under duress (paras.163 et seq. of the Judgment).

The Judgment rules unequivocally on the broad scope of the exclusionary rule: “[T]he tribunal considers that accepting or giving probative value to statements or confessions achieved by a form of duress, which affect the person or a third party, constitutes, in turn, a violation of a fair trial. Likewise, the absolute character of the exclusionary rule is reflected on the prohibition of granting probative value not only to the evidence obtained directly under duress, but also to evidence deriving from the said act.” (para.167)

Earlier domestic proceedings had found that the mistreatment Cabrera and Montiel had alleged could not invalidate statements made later before a competent court. As a result, the later statements of the men were not disregarded. Yet the Inter-American Court examined the relationship between the evidence collected under mistreatment and those repeated later, recalling that the ECHR had indicated subsequent confessions may still be the result of earlier mistreatment, because of the fear that remains after such an experience.

Further, the domestic courts had decided not to exclude evidence based on the reasoning that “it is not sufficient that someone alleges that he has been physically or mentally abused for the person to be liberated, since in principle he should prove that such violence existed and that it served as means to obtain the confession, which, at most, would invalidate the confession […].” In response, the Inter-American Court repeated that the burden of proof remains on the State throughout the proceedings and consequently that any allegation must be investigated diligently. The burden of proof cannot rest on the defendant. It is on the State to prove that the confession was voluntary.

As a result, the Inter-American Court concluded that all evidence obtained by mistreatment should have been totally excluded by the domestic courts, on the basis that the cruel and inhuman treatment suffered by the defendants disqualified the probative value of the confession.

Read the Judgment of the Inter-American Court

Read the APT Amicus (in English and Spanish)
 

 

See also:

IACtHR, Maritza Urrutia v. Guatemala (Series C No.103), 27 November 2003

 

African Commission on Human and Peoples' Rights

 

Abdel Hadi, Ali Radi & Others v. Republic of Sudan, Communication No.368/09, 04 June 2014

Abdel Hadi Ali Radi, Omar Haroun, Abdelmagid Ali Adam Haroun, Ali Daoud Adam Yahia, Mariam Abakar Ali Omar and 83 other individuals alleged they were detained arbitrarily and tortured by police in May 2005. The victims stated they were held for over twelve months without charge, and were denied access to lawyers, family members and medical assistance. They all suffered various forms of torture, including beatings with whips and sticks, as well as psychological forms of torture. At least one victim died of his injuries. The main objective of the police was to extract confessions from the detainees.

The men were only brought before court in February 2006. Soon after, lawyers were instructed to assist the victims, and the court ordered their release, either because the names of the men had not been entered on the case file, or due to the lack of evidence.

The Commission found a clear violation of article 5 (prohibition against torture) as well as other fundamental rights. The Commission does not consider the obligation to exclude torture-tainted evidence, as the effective response of the Sudanese courts to release the men prevented such evidence being used.
 

ACHPR, Egyptian Initiative for Personal Rights and Interights v Arab Republic of Egypt, Communication 334/06, 01 March 2011

Three victims were tortured, tried and sentenced to death after being accused of bombings which took place in 2004 and 2005 on the Sinai Peninsula in Egypt. The victims all alleged they were tortured to elicit their confessions to prosecutors and in court, and despite attempting to retract them, these confessions were still used to convict them. The African Commission condemned the Egyptian decision and confirmed that coercion would be presumed where detainees were held in the absence of procedural safeguards, such as incommunicado detention.

All three men submitted that they had been subjected to beatings, electric shocks, suspension in different stress positions, as well as other forms of cruel, and degrading treatment. During the period of their detention, the victims further submitted that they were denied access to counsel, and despite repeated requests, were refused referral to the Forensic Medical Authority for a medical examination prior to their trials.

In the judgment, the African Commission condemned the decision to convict the three men based on evidence obtained by torture and ill-treatment, and found violations to articles 5, 7 and 26 of the African Charter on Human and Peoples’ Rights. In relation to the complaint that confessions obtained by torture had been used, the Commission repeated that "any confession or other evidence obtained by any form of coercion or force may not be admitted as evidence or considered as probative of any fact at trial or in sentencing" (see African Commission, Principles and Guidelines on Fair Trial). Recognising that victims are often held in isolation and suffer significant challenges in obtaining necessary evidence of their ill-treatment, the Commission has also held that "any confession or admission obtained during incommunicado detention shall be considered to have been obtained by coercion." Thus a rebuttable presumption of ill-treatment will rest with the State where procedural safeguards are not observed in places of detention.

The Commission also addressed the burden of proof, confirming that where a person alleges that a confession was obtained by torture, it was for the State to prove that the confession in question was freely made. In applying the rule, the Commission held that "once a victim raises doubt as to whether particular evidence has been procured by torture or 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 ill-treatment." The Commission added that a confession obtained in the absence of procedural safeguards against such abuse, even without an allegation torture, for example during incommunicado detention, should not be admitted as evidence.

See also

ACHPR, Malawi African Association v. Mauritania (Communications 54/91, 61/91, 96/93, 98/93, 164/97, 196/97, 210/98) 11 May 2000


National Case Law

 

Youssef v. Secretary of State for Foreign and Commonwealth Affairs [2016] UKSC 3 (27 January 2016)

Youssef’s name had been added to the UN sanctions list in 2005. He requested a judicial review of the decision by the Foreign Secretary to allow his name to be added, arguing that the decision of the sanctions committee had been influenced by evidence obtained through torture.

The UK Supreme Court accepted that the Foreign Secretary’s own decision was not based on tainted information, but was instead based on independent reports of his own Security Services. However, the Court was asked to consider whether the act of participating in the decision to add Youssef’s name had the effect of sanctioning or consenting to the use of torture-tainted information which had likely been used by other States to influence their own decisions.

In its ruling, the UK Supreme Court recognised that the prohibition of torture imposes on States a number of obligations. However, such obligations “do not suggest or imply any duty on States to inquire into the possible reliance on [torture-tainted] evidence by other States”.

Consequently, the independent decision taken by the Foreign Secretary to add Youssef’s name to the UN sanctions list was untainted by less pure reasons of others. International law did not impose a duty to inquire into the reasoning of others or to withhold support for the designation based on a suspicion that tainted evidence had motivated others.
 

Minh Quang Pham v. USA [2014] EWHC 4167

The English High Court heard an appeal on the order to remove the appellant, Ming Quang Pham, to the USA for various extra-territorial terrorist offences.

At the earlier extradition hearing, it had been alleged the appellant travelled to Yemen to join Al Qaeda and wage war on their behalf. In Yemen, he met Mr. Warsame, who is now the main US prosecution witness in the case.

The appeal was based on eight grounds, of which only two need concern us here: (1) that the evidence from Warsame should not have been used to justify the extradition as it had likely been obtained through his torture or other ill-treatment; and (2) that the US trial of the appellant would rely on Warsame’s evidence, resulting in a flagrant breach of the appellant’s fair trial rights under ECHR art.6.

On the first ground of appeal, the High Court heard that Warsame was captured and held on board a US ship for two months in 2011, during which time he was held incommunicado and interrogated in circumstances that the appellant argued could constitute torture.

The Court recalled that in English law, torture-tainted evidence must be excluded from all proceedings, and restated the precedent that once the person seeking the removal of evidence gives reasonable grounds that it had been obtained unlawfully, it is for the court to determine if, on the balance of probabilities, the evidence had been so obtained.

Despite the detention regime alleged by the appellant, the Court concluded that they could not allow the ground of appeal. There was simply no evidence on which to hold that there are reasonable grounds to suspect that the evidence used to justify the appellant’s extradition had been obtained by torture or other ill-treatment. Warsame did not alleged ill-treatment, and general reports of circumstances where other detainees have been tortured may be of no assistance in demonstrating reasonable grounds that Warsame himself was tortured.

On the second ground of appeal, the Court considered US caselaw in which statements made under government coercion had been excluded by the US courts, and the practice of testing impugned evidence in a separate voir dire procedure. Consequently, the Court ruled that US procedure was sufficiently robust to eliminate the risk of an unfair trial based on torture-tainted evidence, and that the ground of appeal should also be rejected.

 

SIAC v Mohammed Othman (Abu Qatada), SC/15/2005, 12 November 2012

In November 2012, the UK Special Immigration Appeals Commission (SIAC) rejected the government’s plan to extradite the extremist Muslim Abu Qatada back to Jordan to face trial. The SIAC developed an earlier ruling of the European Court of Human Rights to find that Abu Qatada’s trial in Jordan would not observe fair trial standards, that there was a real risk that evidence obtained by torture would be used in the prosecution, and that the deportation must not proceed without further assurances of Jordanian authorities. The UK government now intends to appeal the decision of the SIAC.

Following the ECtHR ruling, in January 2012, that the deportation of the controversial Muslim cleric would violate his fair trial rights, “on account of the real risk of the admission at the applicant’s retrial of evidence obtained by torture on third persons,” the UK entered negotiations from which Jordan offered assurances that a retrial would satisfy Abu Qatada’s fair trial rights. A new date for his return was thereafter agreed. Abu Qatada appealed the decision and, as the decision is partly based on secret material, the appeal against deportation was heard by the UK Special Immigration Appeals Commission (SIAC).

The SIAC considered that before admitting evidence, the judge of a national court must satisfy him or herself that there was not a real risk that such evidence was obtained by torture.

The SIAC analysed Jordanian law to assess whether the statements that were alleged to have been obtained by torture would likely be admitted, whether the authors would be available for cross-examination, and what probative value the statements might have during the trial.

In considering whether such statements would be admitted, the SIAC noted that the burden of proving that such statements were made as a result of torture would be imposed on an appellant, and would be difficult for anyone to discharge. The burden is particularly onerous in this case as the statements were made over a decade ago, and only limited medical evidence is now available.

The SIAC held that, even with the assurances of the Jordanian authorities, the real risk of statements obtained by torture being admitted against Abu Qatada remained, and that such statements could have a probative role in the determination of the court. Therefore, the SIAC ruled that the deportation must not proceed unless and until further safeguards are implemented to assure that the trial would be fair.

In the German Mounir El-Motassadeq case, the German Supreme Court (Federal Court of Justice) quashed El-Motassadeq’s sentence for 3,066 counts of accessory to murder due to the fact that the evidence used by the lower court was from Ramzi Binalshibh, a detainee in secret US custody who had allegedly been tortured. The Court considered that the witness had not been located, nor able to attend court, nor had any statements been made available to the Court. Rather, only exerts of his testimony had been received from the US authorities.

At the retrial, again the German court asked the US for the witness to be transferred to Germany for questioning, or at least for transcripts of the interviews with Binalsheibh to be made available. The court further requested that the FBI explain how the statements had been collected. However, the US merely sent summaries to the court of testimony collected from three detainees and said they were unable to provide further information.

The German court was obviously aware of alleged torture committed by US agents against detainees held in secret detention, so had to consider whether article15 would exclude the use of such summaries. After deliberation, the court ruled that the summaries would be accepted by the Court, on the basis that it could not definitely be established that such statements were obtained by torture, due to the fact that the US had failed to provide the Court with the information it needed to make that judgment. The court considered as significant the fact that exculpatory information was also included in the statements, as if to show that torture had not been used in its collection. In the end, El-Motassadeq was re-sentenced to 7 years for membership of a terrorist organization. The Judge ruled that the statements from the US did not have probative value due to the uncertainty of their origin, and that they had been used only to corroborate evidence collected which was clearly admissible.

The judgment has been widely criticised. The court places an impossible burden on the accused to establish that the testimonies collected in another country were obtained by torture, despite the fact that there was no way to collect such information.

A and Others v. Secretary of State for the Home Department [2004] EWCA Civ 1123

A and Others v. Secretary of State for the Home Department [2005] UKHL 71, judgment of 8 December 2005

The UK House of Lords was faced with a rather different question in the case of A and Others v. Secretary of State for the Home Department. The judgment focused on the issue of whether evidence obtained by foreign state agents known to commit torture may be admitted as evidence in UK courts.

In certifying persons should be detained indefinitely under a ‘control order’, the UK Home Secretary had used statements obtained by alleged torture of detainees held in the USA. The Special Immigration Appeals Commission (SIAC) sought an answer to the question of whether it may receive and use evidence which had been obtained, or may have been obtained by torture from a foreign State where there was no complicity of British agents. In 2004, the Court of Appeal answered these questions in the affirmative (2-1 majority verdict), despite the fact that the Court had acknowledged the likelihood that the detainees were in fact victims of torture. The verdict was subsequently criticized by the CAT and the European Committee on Prevention of Torture.

However, the subsequent appeal to the House of Lords unanimously overturned the ruling by the Court of Appeal. The Lords found that the UK may not use evidence obtained in a foreign State through torture in any judicial proceeding. Lord Bingham, who delivered the leading judgment, considered that Article15 of the UNCAT imposed a blanket exclusionary rule applicable in all proceedings. He said:
 

…[T]he English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which makes no mention of torture at all.

Though the condemnation against using torture evidence was unanimous, the Lords were divided on the important question on what burden of proof must be met to establish the evidence was obtained by torture. The majority considered that once the appellant raises the issue, the burden of proof passes to the SIAC which will assess whether there are reasonable grounds to believe torture had been used. In this test, evidence should be excluded if it is established, by means of diligent inquiries and on a balance of probabilities,that the information was obtained by torture. In their treatise on the Convention against Torture, Nowak and McArthur note that this is the same test as applied in the El-Motassadeq decision. They consider that “if the [SIAC] concluded there was no more than a possibility that the statement was obtained by torture, then it would not have been established and the statement would be admissible.”

Lord Bingham spoke for the minority and considered that if the appellant advances a plausible case that evidence was obtained by torture, the SIAC would need to inquire as to whether there was a real risk that the evidence was obtained by torture. If there was a real risk, the evidence should be excluded. In his judgment, Lord Bingham regretted the decision of the other Lords, which essentially undermined the effectiveness of the Convention and established a test which persons were seldom able to discharge.

Nowak and McArthur have written that the high burden of proof established in this case “may well be impossible to meet by most of the foreign terrorist suspects presently in detention.” Therefore, this judgment does not change the fact that evidence obtained by torture may still be used in the English courts.

See also:

USA Supreme Court, no.50, Blackburn v. Alabama, decision of 11 January 1960, 361 US 199, pp.205-207.

US Supreme Court, no.8, Townend v. Sain, decision of 18 March 1963, 372 US 293 (1963), pp.293 & 307-309.

South Africa, Mthembu v. The State, case no.379/2007, [2008] ZASCA 51

Festo Asenwa and Kakooza v. Uganda (1998), as upheld in Babyebuza Swaibu vs. Uganda, SCCA No.47/2000

Fiji, Shiu Charan v. R (F.C.A. Crim App. 46/83), discussed the applicable test to determine the voluntariness of a caution interview.

UK, R v. Prager (1972) 1 All ER 1114, discussed the definition of oppression in interrogative interviews.