The Transnational Use of Torture Evidence

Abstract

The Article examines the “transnational” use of torture evidence, i.e., the use of evidence obtained by torture by third states or parties in national criminal trials. The analysis of the law of the international criminal tribunals shows that supranational torture evidence must be excluded since such evidence is unreliable and damages the integrity of the proceedings. The same applies to the admission of transnational torture evidence before national tribunals. The strict exclusionary rule of Article 15 Convention Against Torture (CAT) confirms this view. The rationale for this rule is found in the general unreliability of torture evidence, its offensiveness to civilized values and its degrading effect on the administration of justice. The burden of proof must, as a rule, rest with the state as the party that presents the controversial evidence. For practical and fundamental considerations of fairness, such evidence should not be admitted if there is a real, serious risk that it was obtained by torture.