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.