LexisNexis

IBAHRI calls for worldwide implementation of rule prohibiting admission of torture-tainted evidence

Monday 25 July 2022

Image: Brigitte Werner from Pixabay

NEW video on the role of the legal profession in implementing the exclusionary rule

The International Bar Association’s Human Rights Institute (IBAHRI) calls for the exclusionary rule, which prohibits torture-tainted evidence from being admitted in any proceedings, to be strengthened in application and practice in criminal justice systems.

The exclusionary rule is enshrined in international law, standards and norms, including in Article 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which states: ‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.’ Despite this, a gap in national implementation remains and routine reliance on torture-tainted evidence persists in many countries around the world.

IBAHRI Co-Chair, and Immediate Past Secretary General of the Swedish Bar Association, Anne Ramberg Dr Jur hc, stated: ‘The inadmissibility of evidence obtained by torture is a crucial principle that reinforces the absolute prohibition of torture and acts as a form of torture prevention. Research shows that forced confessions are inherently unreliable and violate the right to a fair trial. It follows that relying on such evidence indirectly legitimises torture and therefore taints the justice system. Therefore, the IBAHRI calls on all States to stop admitting torture-tainted information and to bring a halt to the cycle of acceptance and demand. This is the responsibility of the entire legal profession including judges, public prosecutors and defence lawyers who all have vital roles to play in upholding the exclusionary rule and effectively being components in the fight against torture.’

In a recently held IBAHRI panel discussion, the role of the legal profession in implementing the exclusionary rule was the chief focus. The panel examined the role of judges, public prosecutors and defence lawyers in identifying, challenging and excluding torture-tainted evidence. Moderated by IBAHRI Director Baroness Helena Kennedy QC, the webinar brought together a distinguished panel of speakers, including (in alphabetical order):

  • Gitau Mwangi, Program Officer, Redress, Independent Medico-Legal Unit, Kenya; and Expert Member, Working Group on Death Penalty, Extra-Judicial, Summary or Arbitrary Killings and Enforced Disappearances, African Commission on Human and People’s Rights;
  • Professor Judge Egbert Myjer, a former judge of the European Court of Human Rights; Honorary Member, International Association of Prosecutors; and Commissioner, International Commission of Jurists;
  • Ilvija Pūce, Member, United Nations Committee against Torture; and
  • Patricia del Arenal Urueta, Clerk, Office of Justice Alfredo Gutiérrez Ortiz Mena, Supreme Court of Justice, Mexico.

From the discussion (with the point on the time counter bracketed):

Speaking on the role of defence lawyers and the Kenyan context, Gitau Mwangi noted: ‘Defence lawyers should scrutinise the lawfulness of police investigations and when [clients’] rights have been violated we can either have a trial within a trial or a constitutional petition to challenge the evidence collection.’ (24:12)

Providing an overview of the constitutional doctrine developed by the Mexican Supreme Court of Justice on matters of torture and the exclusionary rule, Patricia del Arenal Urueta said: ‘Given the fact that the Court started its interpretative activities rather late compared to other constitutional courts, it is expected that as years go by justices will succeed in shaping a nuanced but solid jurisprudence and hopefully one that fully embraces international human rights law.’ (45:11)

Highlighting the role of prosecutors in implementing the exclusionary rule, Professor Judge Egbert Myjer said: ‘The prosecution should conform to international human rights law, to human rights standards and norms in order to uphold the reliability…and credibility of both the profession and the government as a whole’. (48:52)

In closing the panel discussion, Baroness Kennedy QC said: ‘If we don’t hold on to the idea that this is an absolute protection against torture and that it speaks to how we protect humanity…if we don’t have the most rigorous of standards, then we are likely to fall into discretionary use of [torture-tainted evidence].’ (1:14:50)

IBAHRI Co-Chair Mark Stephens CBE commented: ‘We applaud the lawyers, prosecutors and jurists worldwide who are working tirelessly to uphold human rights, break the cycle of impunity and secure justice for victims. The IBAHRI calls on States to uphold international law on the prohibition and prevention of torture and ill-treatment and to ensure that perpetrators are prosecuted and punished. This includes ensuring that judges and prosecutors have the necessary powers to exclude torture-tainted evidence and thus guarantee the independence of the legal profession and fair trial rights.’

ENDS

Notes to the Editor 

  1. Click here to watch the panel discussion.
  2. Related material:
  3. The International Bar Association’s Human Rights Institute (IBAHRI), established in 1995 under Founding Honorary President Nelson Mandela, is an autonomous and financially independent entity, working to promote, protect and enforce human rights under a just rule of law, and to preserve the independence of the judiciary and the legal profession worldwide.
  4. Find the IBAHRI (@IBAHRI) on social media here:
  5. The International Bar Association (IBA), the global voice of the legal profession, is the foremost organisation for international legal practitioners, bar associations and law societies. Established in 1947, shortly after the creation of the United Nations, it was born out of the conviction that an organisation made up of the world's bar associations could contribute to global stability and peace through the administration of justice.

    The IBA acts as a connector, enabler, and influencer, for the administration of justice, fair practice, and accountability worldwide. The IBA has collaborated on a broad range of ground-breaking, international projects with the United Nations, the European Parliament, the Council of Europe, The Commonwealth, the Organisation for Economic Co-operation and Development (OECD), the World Trade Organization, the International Monetary Fund and the World Bank, among others.

  6. Find the IBA (@IBAnews) on social media here:

For further information, please contact: the IBA Human Rights Institute at IBAHRI@int-bar.org