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Statements Special Procedures

Mr. Juan Mendez, Special Rapporteur on Torture, addressed the Human Rights Council on 10 March 2014 and outlined his thematic report on the "use of torture-tainted evidence and the exclusionary rule

10 March 2014

10 March 2014

Mister President, Distinguished Representatives, Ladies and Gentlemen,

It is with great honor that I address this Council, for the fourth time, in my capacity as United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.

Mister President,

Country visits are an important component of the mandate’s work. I have been invited by the Government of Mexico to undertake a visit from 21 April to 2 May 2014. My visit to Thailand, which had been postponed, has now been confirmed by the Government to take place from 4 to 18 August 2014. I also appreciate the invitations extended to me by Georgia, Iraq and very recently, The Gambia. My outstanding visits to Bahrain and Guatemala have not been rescheduled by the respective Governments, but I remain ready to undertake these visits. My request to the United States of America to visit the detention center at Guantanamo Bay, Cuba, on conditions that I can accept, and my request to visit prisons on the US mainland are still pending.

Mister President and distinguished delegates,

My main report focuses on the use of torture-tainted information and the exclusionary rule and its fundamental role for upholding the absolute prohibition against torture and other cruel, inhuman or degrading treatment or punishment. I identify State practices regarding this matter and elaborate on the rationale and scope of the exclusionary rule in relation to formal proceedings and on the use of information likely obtained by torture or other ill-treatment by executive agencies, not in “any proceedings” but in collecting, sharing and receiving such information between States during intelligence gathering or covert operations. Regrettably, some States have diluted cardinal principles necessary for preventing and suppressing torture and other ill-treatment.

Mister President,

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 prohibition against torture and other ill-treatment is absolute and non-derogable, under any circumstances, and States have a duty to prevent torture. It follows that the exclusionary rule must also be absolute, including in respect of national security.

However, in practice, this prohibition is not always upheld. Moreover, article 15 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment is the norm most frequently flouted by States that practice torture as some States interpret “any proceedings” narrowly. More importantly, some insist that the exclusionary rule is triggered only when it is established that the statement was made under torture.

Mister President,

In the context of formal judicial proceedings, 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.

I call on States to ensure that the defendant must only advance a plausible reason why the evidence may have been procured by torture or other ill-treatment. Thereafter, the burden of proof must shift to the State and courts must inquire as to whether there is a real risk that the evidence has been obtained by unlawful means. If there is a real risk, the evidence must not be admitted.

I also call upon States to improve the quality of medical and forensic reports and to ensure the admissibility of independent and impartial medical evidence in any proceedings in order to promptly and effectively investigate allegations of torture or other ill-treatment.

Mister President,

Secret proceedings or “closed material procedures” inhibit the implementation of the exclusionary rule. The very secrecy of such evidence undermines the preventive element of the exclusionary rule. Wherever secret evidence is admitted there is an enhanced risk that at least some of that evidence was obtained by torture or other ill-treatment, since such evidence cannot be challenged in open court. States should implement effective legal representation and control of the implementation of the exclusionary rule in all proceedings involving secret evidence, closed material procedures or the invocation of the “state secrets doctrine” in order to enable the defendants effectively to challenge evidence, including evidence from the security services. There should be no state secret excuses for human rights violations.

Further, I hold that the exclusionary rule is not limited to criminal proceedings but extends to military commissions, immigration boards and other administrative or civil proceedings. Moreover, the use of the phrase “any proceedings” suggests that a broader range of processes are intended to be covered; essentially, any formal decision-making by State officials based on any type of information.

Mister President,

Since the “war against terror”, executive agencies have been under extreme pressure to obtain information in order to protect their citizens. Many States refuse to subject the work of their intelligence and security agencies to scrutiny or international oversight. Similarly, domestic courts follow this lead and reject motions to submit these executive practices to judicial review, even when the issue is the absolute prohibition of torture. This leads to the erroneous conclusion that executive collection, sharing or receiving of torture-tainted information are not subject to international law.

The prohibition against torture and other cruel, inhuman or degrading treatment or punishment enjoys the enhanced status of a jus cogens or peremptory norm of general international law and requires States not merely to refrain from authorizing or conniving at torture or other ill-treatment but also to suppress, prevent and discourage such practices. States have not only the obligation to “respect”, but to “ensure respect” for the absolute prohibition against torture under all circumstances.

To allow exceptions by the executive branch is clearly 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.
The prohibition of torture and other ill-treatment requires States to abstain from acting within their territory and spheres of control in a manner that exposes individuals outside of their territory and control to a real risk of such acts. The fact that torture or other ill-treatment would occur outside the territory of the State in question and not under the direct control of its agents does not relieve the State from responsibility for its own actions that have effectively contributed to torture.

I call on States to restrain from creating a market for the fruits of illegal and abhorrent interrogation practices by collecting, sharing or receiving information obtained by torture or other cruel, inhuman or degrading treatment or punishment. 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 through all manifestations of public power, executive and judicial.

Mister President,

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. Complicity in torture is a direct breach of international human rights obligations under the Convention, the International Covenant on Civil and Political Rights, other human rights and international humanitarian law treaties as well as under customary international law. It is by itself a breach of an obligation according to the general principles of State Responsibility for internationally wrongful acts.

Receiving torture-tainted information creates a demand for it and elevates its operational use to a policy; it aids and assists the torturing State in maintaining impunity for the acts of torture or ill-treatment.

In order to implement the States’ obligation to prevent and discourage torture, and in order to avoid responsibility for complicity for an internationally wrongful act, I conclude that the exclusionary rule provides for an absolute prohibition in international law on the use of evidence obtained by torture or ill-treatment in any proceedings. It is considered a preventive measure, reasonably required to give effect to the absolute prohibition of torture and ill-treatment and to the obligation to prevent and discourage such acts, alongside other provisions of the Convention and customary law.

On the basis of the purpose and object of the exclusionary rule and of the general prohibition of torture and other ill-treatment, the exclusionary rule must be interpreted to apply much more widely, to include the activities of executive actors. The standards of the exclusionary rule should be interpreted in good faith and applied by way of analogy to executive actions that purposely and objectively promote torture by taking advantage of its results, including the collection, sharing or receiving information obtained by torture or other ill-treatment, even if not used in “proceedings” narrowly defined. Torture-tainted information, even when not intended to be used in court proceedings, must be treated in the same way that a court would treat evidence obtained by torture or other ill-treatment.

The use of torture-tainted information is encouragement of torture or ill-treatment after the fact, and therefore establishes complicity in such acts and fails to prevent the next round of torture or other ill-treatment.

States cannot resort to diplomatic assurances as a safeguard against torture or other ill-treatment where there is a real risk that information has been obtained by torture or other ill-treatment or that sharing of information may lead to such acts. Such assurances are incapable of mitigating the responsibility of the State that relies on the information so obtained.

Mister President,

I call on States to submit all actions by the executive branch of government, including collecting, sharing or receiving information to independent and impartial review under the States’ obligations under the absolute prohibition of torture and other cruel, inhuman or degrading treatment or punishment, including the obligation to prevent and discourage torture and other ill-treatment.

I urge States to take positive preventive measures to ensure that the relationships between executive agencies of different States do not encourage or lead to torture or other cruel, inhuman or degrading treatment or punishment, by inter alia, establishing requirements in intelligence-sharing agreements that information obtained in violation of the prohibition of torture or other cruel, inhuman or degrading treatment or punishment be withheld; and that other States will be part of intelligence-sharing agreements only if they comply with all obligations under the prohibition of torture or other cruel, inhuman or degrading treatment or punishment. Finally, to ensure accountability in intelligence cooperation, oversight mechanisms must be established and enhanced.

I hope that my report will generate a discussion among States and advocates and highlight the additional measures needed to ensure that no products of torture are used by any part of the State, judicial or executive and to uphold the State’s obligation to prevent torture and other ill-treatment under any pretext.
Mister President and distinguished delegates,

From 8 to 14 November 2013, I undertook a country visit to Ghana at the invitation of the Government and am encouraged by the authorities’ openness regarding one of the most marginalized sectors of society, those deprived of their liberty.

Engagement with the now Director-General of the Prisons Service, was a positive element of the visit. There is a genuine will to shift away from a purely punitive penal system to a more modern approach to the reform, rehabilitation and reintegration of inmates.

In general, detainees had no complaints about their treatment by prison officials. However, during my visit to the country’s juvenile centre, I witnessed traumatic physical injuries on seven juveniles, resulting from a recent caning incident. The Prisons Service established a formal inquiry, which is ongoing, and has dismissed the Chief Officer who directly flogged the juveniles with twelve lashes on the back as a disciplinary act. I am concerned about “black coats”, prisoners designated by authorities, who exercise a high degree of authority over other prisoners, including prisoner-on-prisoner violence with the use of sticks.

I saw some cases of ill-treatment by the police during arrest, transfer to police stations and interrogation, but did not find evidence of a widespread pattern or systemic practice.

The construction of a new maximum security prison, a remand review project called “Justice for All” and presidential pardons help to reduce overcrowding but the key challenge is the lack of an effective criminal judicial system. There is no comprehensive and well-resourced legal aid programme; few offences are bailable; prolonged pre-trial detention is due to inadequate police investigations, lost case files and a shortage of judges; outdated sentencing policies impose lengthy custodial sentences; there is limited remission of sentences; lack of alternative measures to imprisonment; and no parole system due to a lack of resources and trained officers.

The extreme level of overcrowding results in a number of serious violations: inadequate nutrition, insufficient access to medical care, poor sanitation, personal insecurity and the absence of rehabilitation services. These substandard conditions constitute cruel, inhuman and degrading treatment or punishment. The ratification and implementation of the Optional Protocol to the Convention against Torture must be a priority.

Commuting death sentences and formalising the de facto moratorium on the death penalty, reducing lengthy sentences and enabling children to be part of family visits would be steps towards more humane treatment of prisoners.

The treatment of those with mental illness held in psychiatric hospitals is of great concern due to the use of electroshock therapy, the lack of adequate medicine and acute shortage of specialised medical staff. In the two prayer camps I visited, I saw shocking practices of individuals, including children, shackled or chained to trees and walls and subjected to forced fasting and denial of medication.

The 2012 Mental Health Act is a positive step as it will mean that both psychiatric hospitals and prayer camps will be monitored and there will be an individual complaints system in place; however, urgent steps are required to fully implement this Act.

I hope my recommendations will assist the Government to ensure that Ghana’s criminal justice and mental health care practices are more humane and are brought in line with international human rights standards.

Mister President

I have identified follow-up as one of my priorities. With the support of my follow-up project, the Anti-Torture Initiative, I conducted a follow-up visit to Tajikistan from 10 to 12 February 2014, at the invitation of the Government, and I welcome this as a good practice. I engaged with all interlocutors to conduct an assessment, at the country level, on the status of implementation of my recommendations from my visit in 2012 (A/HRC/19/61/Add.1).

I was satisfied with the serious and systematic approach that Tajikistan has taken towards my recommendations. In particular, I welcome the adoption of a National Action Plan, which engages all branches of the Government to implement the recommendations. Since 2012, Tajikistan has made serious efforts to improve the institutional and legal framework to prevent and eradicate torture, for example, by ensuring the application of safeguards and the completion of a full registry since the moment of detention; creating a new Center for Forensic Medicine and training forensic experts in the Istanbul Protocol; transferring the majority of the places of detention under the jurisdiction of the Ministry of Justice; and creating a Monitoring Group that allows the Ombudsman Office to conduct visits to places of detention with civil society. However, I observed that torture and ill-treatment continue to occur during interrogations and detention.

Although efforts are clearly heading in the right direction, substantial changes are still required to ensure that many of the legal measures and policies adopted, work to effectively prevent and eliminate torture and mistreatment in Tajikistan. The Government needs to insist in its pursuit of investigations, prosecution, and punishment for all allegations of torture and mistreatment. In particular, Tajikistan needs to devote efforts to developing its preventive apparatus which is still weak, including by providing for independent oversight of its places of detention and for access by local and international civil society groups, guaranteeing access to independent legal counsel and medical services, ensuring the exclusion of evidence obtained by torture, and creating an independent preventive mechanism and ratifying OPCAT.

Mister President and distinguished delegates,

I would like to thank the Government of Tunisia for its ongoing engagement and for inviting me to conduct a follow-up visit, which is planned for June 2014. I would also like to thank the Government of Morocco for its cooperation with Special Procedures and my mandate in its ongoing efforts to implement my recommendations. I thank the Government for its openness to future cooperation and welcome the Government’s invitation for a follow-up visit in 2014.

Mister President and all those gathered,

I thank you for your attention and look forward to a fruitful dialogue with you.