Thematic Report: Exclusionary Rule and Torture-Tainted Evidence

Thematic Report: Exclusionary Rule and the Use of Torture-Tainted Evidence and Information


The Special Rapporteur’s new thematic report focuses on the scope and objective of the exclusionary rule and its fundamental role in upholding the absolute prohibition of torture and other cruel, inhume, or degrading treatment or punishment.  The report discusses the use of the exclusionary rule in formal judicial proceedings, including the burden of proof on the admissibility of material obtained by torture or other ill-treatment, the increasing trend towards the use of secret evidence and closed material procedures, and the enhanced risk that torture-tainted evidence is admitted since such evidence cannot be challenged in open courts. The second part of the report focuses  on the use of torture-tainted information by executive agencies.

Twenty-Fifth Session of the Human Rights Council  

The Special Rapporteur presented his report to the 25th Session of the UN Human Rights Council (HRC) in Geneva on Monday, March 10, and held a press conference on Tuesday, March 11.  For more information about the Special Rapporteur’s activities in Geneva, visit our page dedicated to the Human Rights Council and refer to the videos and documents below.

Summary of the Report

In the report, the Special Rapporteur finds that all actions by executive agencies shall be reviewed under the absolute prohibition of torture and that the standards contained in the exclusionary rule shall apply, by analogy, to the collecting, sharing and receiving of information by executive actors. The Special Rapporteur finds that to allow exceptions by the executive branch for purposes other than legal proceedings or to find other uses for their outcomes is plainly against the spirit of the Convention, the International Covenant on Civil and Political Rights and other treaties and standards, against the obligation to prevent torture and other ill-treatment, and against the absolute prohibition of torture and other ill-treatment. It is not sufficient to ensure that the judicial process is free from the taint of torture; torture must not be encouraged, condoned, or acquiesced in all manifestations of public power, executive and judicial.

The Special Rapporteur concludes that Governments cannot condemn the evil of torture and other ill-treatment at the international level while condoning it at the national level. It is hypocritical of States to condemn torture committed by others while accepting its products. Any use of torture-tainted information, even if the torture has been committed by agents of another State, is an act of acquiescence in torture that compromises the user State’s responsibility and leads to individual and State complicity in acts of torture.

Expert Meeting and Interview

Prior to the publication of the report, the Special Rapporteur participated in an expert meeting on the use of torture-tainted information by executive actors that was hosted by the Association for the Prevention of Torture (APT) in Geneva.  The Special Rapporteur also delivered a keynote interview following the expert meeting, during which he explained that the use of torture is absolutely prohibited under international law and states can invoke no exception to derogate from their obligation to refrain from its use.  The Special Rapporteur further elaborated that these norms, including states’ legal obligations to prevent and exercise due diligence in preventing torture from happening, constitute minimum standards and building blocks from which we can create standards that will both effectively prevent torture and not tie the hands of intelligence agencies or security agencies that need to be able to fight crime and particularly to fight terrorism. For more information about the consultation, please visit the APT website.