Day 1 - Evidence tainted by torture in law and practice - A regional perspective

Welcome to Day 1!

During the Online Discussion, taking place in the week of 21-25 February 2022, we will publish the written contributions of a number of renowned experts on selected topics concerning the inadmissibility of evidence tainted by torture. We recommend visiting the Online Discussion page this entire week to read diverse perspectives!

Today you can read the contributions of Nikolaos Sitaropoulos, Council of Europe, and Ilze Tralmaka, Fair Trials. Amongst others, the contributors highlight regional standards governing the exclusionary rule and discuss measures to prevent torture and ill-treatment, procedures to exclude evidence and effective remedies.

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Disclaimer: The content of these contributions represents the authors’ individual experience and perspective. The opinions stated in these articles are the authors’ own and do not reflect the views of ODIHR or the LBI-GMR.

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Views expressed herein are strictly personal.

Introductory remarks

In its 2018 annual report (§65) the CPT observed that ill-treatment during or in the context of police interviews remains a very serious problem in a significant number of European states. In almost one third of the 47 Council of Europe member states, the CPT has collected evidence of police ill-treatment that may qualify as torture.

The right to a fair trial under Article 6 ECHR, which is not an absolute right, in practice may be linked to Article 3 ECHR (prohibition of torture), which enshrines an absolute freedom. As the ECtHR has stated (Gäfgen v. Germany [GC] 2010, §178), the need to repress and effectively protect individuals from ill-treatment during investigations may require the exclusion from use at trial of real evidence which has been obtained as the result of any violation of Article 3.

1. ECtHR case-law concerning torture-tainted evidence

  • Fair trial guarantees start with a criminal charge

The guarantees surrounding the right to a fair trial under Article 6 ECHR apply from the moment that a “criminal charge” exists within the meaning of the ECtHR case-law. Thus they are relevant during pre-trial proceedings. The Court has noted that the investigation stage may be of particular importance for the preparation of the criminal proceedings: the evidence obtained during this stage often determines the framework in which the offence charged will be considered at the trial. An accused may therefore find themselves in a particularly vulnerable position at that stage, the effect of which may be amplified by increasingly complex legislation on criminal procedure, especially evidentiary ones (Ibrahim and Others v. UK [GC], 2016, §253).

  • Absolute prohibition of use of confessions made in violation of Article 3 ECHR

As regards the use, as fact-establishing evidence, of confessions (statements) resulting from torture or other ill-treatment in breach of Article 3 ECHR, this practice renders criminal proceedings as a whole unfair. The European Court has underlined that this applies irrespective of the probative value of the statements and irrespective of whether their use was decisive in securing the defendant’s conviction. (Gäfgen v. Germany [GC], 2010, §166, Ibrahim and Others v. UK [GC], 2016, §254).

  • Prohibition of use of other incriminating evidence tainted by torture

Under the ECtHR case-law (Jalloh v. Germany [GC], 2006, §105), incriminating evidence – whether in the form of a confession or real evidence – obtained as a result of acts of violence or brutality or other forms of treatment which can be characterised as torture – should never be relied on as proof of the victim’s guilt.

  • Incriminating evidence obtained through other forms of ill-treatment

The admission of evidence obtained as a result of an act qualified as inhuman treatment in breach of Article 3, but falling short of torture, may breach Article 6, if it has been shown that the breach of Article 3 had a bearing on the outcome of the proceedings against the defendant, that is, had an impact on their conviction or sentence (El Haski v. Belgium, 2012, §85). The ECtHR has underlined that all the above principles apply not only where the victim of the treatment contrary to Article 3 is the actual defendant but also where third parties are concerned (Othman (Abu Qatada) v. UK, 2012, §263-267, Ćwik v. Poland, 2020, §77 and §89, in the latter case, in particular, ill-treatment was inflicted on a third party by private individuals).

  • Ill-treatment and one’s right to silence (privilege against self-incrimination)

The European Court has attached particular importance to one’s right to silence and the privilege against self-incrimination, considering them international standards which lie at the heart of the notion of a fair procedure under Article 6. They do not, however, extend to the use of material obtainable from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect, such as documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples and bodily tissue for the purpose of DNA testing (Jalloh v. Germany [GC], 2006, §§100-102, Ibrahim and Others v. UK [GC], 2016, §§266-269).

In order to determine whether one’s right to silence has been violated, three major factors have been examined by the European Court: the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence in issue; the existence of any relevant safeguards in the procedure; and the use to which any material so obtained is put (Jalloh v. Germany [GC], 2006, §117)

  • Domestic courts’ obligation to examine allegations of ill-treatment casting doubt on the quality of evidence

Under the ECtHR’s case-law, domestic courts should examine the quality of the evidence including whether the circumstances in which it was obtained cast doubt on its reliability or accuracy. Thus, the burden of proof is on the prosecution and any doubt should benefit the accused (Bokhonko v Georgia, 2020 §92). In cases where a defendant makes a prima facie case about the real evidence, forming the basis of conviction, potentially obtained through ill-treatment, national courts are under an obligation to “adequately examine” such an argument and assess the quality of the evidence (ibid. §96, see also Iordan Petrov v. Bulgaria, 2012 §140, where the ECtHR refers to the domestic courts’ obligation to carry out an “analyse approfondie” of the facts of the case if ill-treatment allegations are put forward).

Also, in cases where a defendant submits that the impugned evidence emanates from torture or other forms of ill-treatment on a third person in a third state, the domestic court may not admit this evidence without having first examined the defendant’s arguments concerning it and without being satisfied that no such risk exists (El Haski v. Belgium, 2012, §§88-89).

2. Execution of ECtHR judgments concerning torture-tainted evidence

  • States’ obligation to provide redress to victims

All victims of ECHR violations should be entitled, as far as possible, to an effective restitutio in integrum. Under Recommendation No. R (2000) 2 of the Council of Europe Committee of Ministers, states’ legal systems should make it possible to re-examine a case, and reopen proceedings, following a judgment by the ECtHR finding a violation of the ECHR, “especially where: i. the injured party continues to suffer very serious negative consequences because of the outcome of the domestic decision at issue, which are not adequately remedied by the just satisfaction and cannot be rectified except by re-examination or reopening, and ii. the judgment of the Court leads to the conclusion that a. the impugned domestic decision is on the merits contrary to the Convention, or b. the violation found is based on procedural errors or shortcomings of such gravity that a serious doubt is cast on the outcome of the domestic proceedings complained of.”

Thus, in cases where applicants’ convictions are found by the ECtHR to have been tainted by torture or other forms of ill-treatment, the Committee of Ministers, supervising the execution of ECtHR judgments, systematically examines whether applicants had the possibility at national level to request and obtain re-examination and reopening of their cases.

For example, in El Haski v. Belgium, the applicant requested and obtained by decision of the Court of Cassation the quashing of the criminal proceedings at issue and the reopening of the trial in order to rectify the violation committed. In Iordan Petrov v. Bulgaria, in the reopened proceedings, the confessions obtained in breach of Article 3 were excluded from the case-file, the applicant’s conviction was upheld by a final judgment of the Supreme Court of Cassation and the court reduced his sentence from life imprisonment without commutation to life imprisonment. Also in some cases of the Stanimirović group of cases v. Serbia, applicants requested the reopening of the impugned criminal proceedings and in the reopened proceedings the applicants were acquitted of all charges. In the more recent case of Ćwik v. Poland, the Committee of Ministers was informed that reopening of criminal proceedings against the applicant was possible under the Code of Criminal Procedure but no request in this respect has been submitted by the applicant (see also similar situation in Hajrulahu, part of the Kitanovski group of cases v. the former Yugoslav Republic of Macedonia)

  • States’ obligation to prevent recurrence of similar ECHR violations

Respondent states are also under an obligation to take general (legislative, regulatory or awareness-raising) measures to prevent similar human rights violations after an ECtHR judgment. Occasionally the ECtHR may identify the problem of ill-treatment during police interrogation as systemic at national level and provide indications/guidance concerning possible general measures to be taken by the respondent state. For example, in Kaverzin v. Ukraine (2012) the Court considered it necessary to stress that Ukraine must urgently put in place specific reforms in its legal system in order to ensure that practices of ill-treatment in custody are eradicated, that effective investigation is conducted in accordance with Article 3 of the Convention in every single case where an arguable complaint of ill-treatment is raised and that any shortcomings in such investigation are effectively remedied at the domestic level (see also Kaverzin group of cases pending before the Committee of Ministers, concerning violations of Article 3).

In certain countries it appears to have been considered sufficient, by the respondent states and the Committee of Ministers, to publicise and widely disseminate the ECtHR judgments to competent national authorities, given that national legislation appeared to be ECHR-compliant while the Article 6 violations seemed to be due to judicial practice (see e.g. Iordan Petrov v. Bulgaria, Gäfgen v. Germany, Jalloh v. Germany (as regards the violation of Article 3 in Jalloh, the practice of administering emetics to obtain evidence was expressly abandoned in the Länder, which had used it - Berlin, Bremen, Hamburg, Hessen and North Rhine-Westphalia), Stanimirović group of cases v. Serbia).

In other countries more measures have been considered necessary. For example, in El Haski v. Belgium the Federal Prosecutor’s Office issued instructions to competent authorities in order to prevent the future use of declarations obtained under torture or through other inhuman or degrading treatment. Moreover, a new law amended the Code of Criminal Procedure explicitly proscribing use of evidence obtained irregularly, thus also indirectly excluding the evidence obtained through torture.

Domestic case-law changes may also be considered able and necessary to prevent similar Convention violations. For example, in the Kitanovski group of cases v. the former Yugoslav Republic of Macedonia, the authorities have informed the Committee of Ministers about a number of Convention-compliant judgments delivered by the Supreme Court in 2009, 2013 and 2014 demonstrating that the domestic courts have a well-established and ECHR-compliant practice of excluding ill-treatment tainted evidence from criminal trials.

Concluding remarks

In the aforementioned major cases where the ECtHR has found violations of Article 6 ECHR, the judgments appear to have considered as root cause of the violations domestic courts’ practice concerning the exclusionary rule which was non-ECHR compliant, rather than flawed domestic legislation. Hence, the wide dissemination and publication of the ECtHR judgments and the effective alignment of domestic courts’ practice with the ECtHR case-law appears to be considered to provide, in most cases, sufficient guarantees for preventing recurrence of similar violations.

Despite the fact that the CPT in recent years continued to encounter instances of ill-treatment during police interviews in a significant number of European states, as noted earlier, certain states appear to be determined to take firm action in order to fight torture and other forms of ill-treatment by law enforcement which seems to be the major source of the problem in practice. This is illustrated by a number of European states’ decision or plan to abolish prescription for acts of torture (this has happened in 2021 in Armenia, Romania and North Macedonia and earlier in Moldova and Turkey), or high-level political statements showing determination to eradicate police ill-treatment (for example, in March 2021, the Greek Prime Minister during his speech in Parliament expressed the state’s determination to address the causes of ill-treatment and its strong commitment to setting the stage for a change of culture among law enforcement officers; Sidiropoulos and Papakostas group of cases v. Greece). This trend is encouraging, promising further alignment of national criminal law and practice with the fundamental values concerning human dignity and one’s right to a fair trial.

Nikolaos Sitaropoulos, Head of Division, Department for the Execution of ECtHR Judgments, Council of Europe

The author’s earlier posts include those of Head of Division at the Office of the Council of Europe Commissioner for Human Rights and Legal Officer at the Greek National Commission for Human Rights. Nikolaos Sitaropoulos holds a PhD in Law from University College London, an LLM in International Human Rights Law from the University of Essex and an LLB from the School of Law of the Aristotle University of Thessaloniki.

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International law prohibits reliance on ‘torture evidence’ for multiple reasons. Firstly, the statements made as result of torture are involuntary, inherently unreliable and violate the right to a fair trial. Secondly, to rely on such evidence undermines the rights of the torture victim. Thirdly, it indirectly legitimises torture and in so doing taints the justice system and finally, prohibiting reliance on fruits of torture acts as a form of deterrence and prevention. In reality, however, reliance on torture evidence or at least evidence obtained indirectly from torture is still being used in criminal justice systems around the world (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, 2018, pp.15-25). Despite a clear exclusionary rule applicable to statements obtained by torture on the international and regional level (Article 15 CAT, see also ECtHR, Gäfgen v. Germany [GC], App. No. 22978/05, 1 June 2010, para. 166) some countries do not prohibit reliance on torture evidence at all. More commonly, countries have some form of some exclusionary rule in respect of torture evidence, but such rules tend to be incomplete and fail to meet the key components of the rule as defined by international law (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, p. 59). There is also confusion about the scope of application of the exclusionary rule to other forms of cruel, inhuman and degrading treatment and to the evidence obtained indirectly from torture and other forms of ill-treatment (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, p. 59). This means that in practice, torture evidence is still used in criminal trials around the globe.

Prevention

Focusing on post-factum remedies such as the application of the exclusionary rule alone will not solve the problem. In addition to a strong exclusionary rule, ending reliance on torture evidence calls for systemic solutions which remove the incentives for coercive investigation techniques in the first place.

First and foremost, interviewing must be conducted with all appropriate procedural rights and safeguards. The presence of a lawyer in the interview is an essential safeguard against torture and other forms of ill-treatment (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, 2018, p. 49). The presence of a lawyer in person in one room with the suspect can not only help to prevent torture, but also detect and stop ongoing ill-treatment that may take place outside of the interview room. For this reason, remote legal assistance is less effective than a lawyer’s presence in-person (Fair Trials, Beyond the Emergency of COVID-19 pandemic: lessons for defence, 2020, p. 27), where it is easier to detect any visible signs of torture.

Secondly, law-enforcement officers need to be trained on the inherent unreliability of statements made under coercion that undermine the main objective of a criminal investigation – truth finding. Law enforcement officers also need to be more knowledgeable on the benefits of using appropriate interviewing techniques in accordance with international standards (e.g. the Mendez Principles, Principles on Effective Interviewing for Investigations and Information Gathering, 2021).

Thirdly, an important additional safeguard is mandatory video and audio recording of suspect interviews (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, 2018, p .49). It is important to stress however that, contrary to what appears to be the suggestion of the European Court of Human Rights in Doyle v. Ireland (ECtHR, Doyle v. Ireland, App. No. 51979/17, 23 May 2019, para. 99 ), video recording of the suspect interview cannot replace the presence of a lawyer. A video recording does not record what happens before or after the interview, nor is it manipulation-proof. Video recordings can be manipulated, for example, by presenting only excerpts of the recording in trial (as was the case in Doyle) or strategic placement of the camera to reflect only part of the goings on in the interview room.

Fourthly, detention is a well-known contributing factor to increased risk of coercion on the suspect. Therefore systemic solutions aimed at reducing overreliance and abusive use of pre-trial detention would also reduce the occurrence of torture. It is key that pre-trial detention hearings are conducted in-person. The European Committee for the Prevention of Torture or Inhuman or Degrading Treatment or Punishment has stressed that “All persons detained by the police whom it is proposed to remand to prison should be physically brought before the judge who must decide that issue. Bringing the person before the judge will provide a timely opportunity for a criminal suspect who has been ill-treated to lodge a complaint. Further, even in the absence of an express complaint, the judge will be able to take action in good time if there are other indications of ill-treatment (e.g. visible injuries; a person’s general appearance or demeanour)” (European Committee for the Prevention of Torture, 12th General Report, CPT/Inf(2002)15-part, para.45).

And finally, the effort to conclude criminal investigations ‘quickly and efficiently’ by resorting to coercive investigation methods can be a symptom of overburdened justice systems. The inability to cope with heavy caseload may push law-enforcement officers to look for ways to close cases quickly or to produce more “results”. For this reason, an increasing number of cases are resolved without a full trial, through confessions or plea bargains. In many such trial waiver procedures, the suspect needs to confess. In such cases, the need to obtain a confession is a major incentive for use of torture or other forms of ill-treatment. Decriminalisation and redistribution of resources to help justice systems deal with the existing caseload and thus reducing reliance on confession in criminal prosecutions has the potential to address a major driver of torture (Fair Trials and REDRESS, Tainted by Torture. Examining the Use of Torture Evidence, 2018, p. 60).

Effective exclusion

Dealing with torture evidence in the trial stage of criminal proceedings can be difficult. As mentioned above, the scope and application of the exclusionary rule, even where a clear rule exists in international law (as is the case for statements obtained by torture) is still problematic in legislation and practice on a national level.

In addition, Fair Trials’ recent research on the use of illegally obtained evidence shows a certain reluctance from judges to apply the exclusionary rule to illegally obtained evidence. Where exclusion of evidence may result in an acquittal, judges are reluctant to take a principled stance on unlawful evidence (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021 p.46). The same reluctance is also seen on an international level with the International Criminal Court’s Trial Chamber X recently taking a compartmentalized view of the interview process in Al Hassan and refusing to look into torture allegations outside of the interview room (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021 p. 46).

Effective application of the exclusionary rule is also difficult in practice. Our research shows that most civil law systems are built in a way that only allows challenges of the legality of evidence in the trial stage. A decision on the legality of evidence is often taken by the same judges that will rule on the guilt or innocence (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021, pp.45-46). However, at the trial stage it is often too late to distinguish which evidence was obtained illegally and which was gathered independently. Illegal evidence gathering methods are also often unrecorded and are not used to obtain direct evidence but rather information that leads to new, seemingly untainted evidence (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021, pp.35-36). Even if it was possible to trace the origin of the evidence at this stage, the fruit of poisonous tree doctrine is almost never applied in civil law systems (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021, pp.35-36). Thus violations of rights can result in tangible benefit for prosecutions.

States need to create conditions for effective judicial review of the legality of evidence early in the process. In principle an opportunity to independently examine legality of evidence at the pre-trial stage would help detect and exclude torture evidence early on. A crucial piece in this process is keeping detailed records about the evidence gathering process which are also disclosed to the defence. A lack of information about the evidence gathering process to both defence and judges is a major obstacle to the effective review of the legality and potential exclusion of unlawful evidence (Fair Trials, Unlawful evidence in Europe’s courts: principles, practice and remedies, 2021, pp.43-45). It also prevents holding authorities to account for their actions, and fails to create a disincentive for the use of torture.

Ilze Tralmaka, Senior Legal and Policy Officer, Fair Trials

Ilze Tralmaka is specialised in EU criminal law and European Convention of Human Rights standards. She is currently leading Fair Trials’ work on pre-trial detention, remedies for illegally obtained evidence and remote proceedings. Ilze Tralmaka is also involved in Fair Trials’ strategic litigation before the European Court of Human Rights, the Court of Justice of the EU and other international and domestic courts and tribunals. Before joining Fair Trials, Ilze lead the Latvian Parliament’s litigation before the Constitutional Court of Latvia and worked for the Latvian National Human Rights Institution. She is currently a visiting lecturer on international human rights in the Riga Graduate School of Law.

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Thank you Nikolaos and Ilze for kicking off this week’s Online Discussion “The inadmissibility of evidence tainted by torture” with these very interesting contributions!

To follow up on some of the points you raised, we would like to invite also others to share any additional thoughts they may have:

How should a domestic framework on the inadmissibility of evidence obtained by torture look like to be effective? Please feel free to share any promising practice or success stories from your country.

We look forward to a week of exchange!

Giuliana Monina

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Dear Ilze, dear Nikolaos, dear all, thank you also from us at ODIHR!
Ilze, we would also be interested in hearing some examples where the legality of evidence was examined at an early stage, leading to the exclusion of torture tainted evidence. Like Giuliana said, anyone is of course welcome to share promising practices from their country.
Looking forward to checking back later,
Jennifer

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