THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC

THE USE OF TORTURE-TAINTED EVIDENCE AT THE ECCC: What is the applicable standard for assessing whether a statement is established as being made under torture and what are the parameters, if any, for the admissibility of torture tainted evidence?

The issue of the admissibility and permissible uses of evidence obtained through torture has arisen repeatedly at the Extraordinary Chambers in the Courts of Cambodia (ECCC) in Cases 001 and 002, due to the fact that there is a large body of material before the ECCC Court emanating from the notorious security center S-21 (also known as Tuol Sleng) and other alleged security centers around Cambodia.

Recently the issue has come up again, after the Trial Chamber prohibited the Nuon Chea Defence in Case 002/02 from questioning a witness on the contents of a confession. The Nuon Chea Defence asserted that the Trial Chamber was using a double standard, allowing the Prosecution to ask questions concerning confessions, but not the Defence. The Prosecution requested to file written submissions and to have oral arguments on the issue. The Trial Chamber agreed and the parties’ submissions were received 21 May 2015. Oral arguments occurred 25 May 2015.

Because any decision in Case 002 on the admissibility and use of torture-tainted evidence will have an effect on other cases which are slated to follow (Cases 003 and 004), on behalf of our client in Case 003, Mr. MEAS Muth, on 26 May 2015 we filed a request to intervene in Case 002 to file written submissions, and in the alternative we filed an amicus curiae.1The Co-Lawyers for Mr. MEAS Muth were superbly assisted, as always, by Legal Consultants Tanya Pettay, Helen Sullivan, and Mang Monika.

Suffice it to say, our position is straightforward: under Cambodian and international law any statement which is established to have been made as a result of torture should not be invoked as evidence in any proceeding, except against a person accused of torture as evidence that the statement was made. This includes biographical information, derivative evidence, and secondary sources obtained from torture-tainted evidence.

The prohibition of torture is considered a jus cogens norm of international law2See In re: Iraq and Afghanistan Detainees, Misc. No. 06-145 TFH, Brief of J. Herman Burgers and Theo Van Boven as Amici Curiae in Support of Plantiffs’ Opposition to Defendants’ Motions to Dismiss, U.S. District Court for the District of Columbia (30 June 2006), p. 11. and is found in a multitude of international human rights instruments.3 See, e.g., International Covenant on Civil and Political Rights, Art. 7; Convention on the Rights of the Child, Art. 37(a); Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 3; Charter of Fundamental Rights of the European Union, Art. 4; American Convention on Human Rights, Art. 5(2); African Charter on Human and Peoples’ Rights, Art. 5; Inter-American Convention to Prevent and Punish Torture. This prohibition extends to the official use of evidence obtained by torture, as this use indicates acceptance of the practice of using torture to obtain evidence.4See United States v. Abu Ali, 395 F.Supp. 2d 338, 379 (E.D.Va. 2005): “Due to the serious nature of the allegations of torture and mistreatment being made by the defendant, the Court would like to make a very clear statement that torture of any kind is legally and morally unacceptable, and that the judicial system of the United States will not permit the taint of torture in its judiciary proceedings.” The prohibition on using torture-tainted evidence at trial is an essential link to the right to a fair trial.5See MANFRED NOWAK ET AL., THE UNITED NATIONS CONVENTION AGAINST TORTURE: A COMMENTARY 503 (Oxford University Press, 2008). These rights are protected at the ECCC under the Agreement, Art. 13(1); the Establishment Law, Arts. 33 new, 35 new; and Rule 21.

The universal condemnation of torture led to the United Nations General Assembly’s 1975 Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Declaration Against Torture”).

The Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Convention”) subsequently was drafted to strengthen the Declaration Against Torture.6See CHRIS INGELSE, THE UN COMMITTEE AGAINST TORTURE: AN ASSESSMENT 2-3 (Kluwer Law International 2001). It was adopted and opened for signature, ratification, and accession on 10 December 1984 and entered into force on 26 June 1987. Currently, 158 States are parties to the Convention.7See http://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en. Article 15 mandates that “[e]ach 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.” No State Party has filed a reservation to this Article, indicating that the prohibition on the use of torture-tainted statements is universally accepted as a necessary deterrent to the use of torture to obtain evidence.

However, despite concerns about the impact of the use of torture-tainted evidence in proceedings, Article 15 of the Torture Convention does contain an exception to the prohibition against the use of torture-tainted evidence. 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.” (emphasis added).

Other international instruments mirror Article 15 in restricting the admissibility and use of torture-tainted evidence to use against a person accused of torture as evidence that the statement was made.8See, e.g., Article 10 of the Inter-American Convention to Prevent and Punish Torture, which states (emphasis added): “[n]o statement that is verified as having been obtained through torture shall be admissible as evidence in a legal proceeding, except in a legal action taken against a person or persons accused of having elicited it through acts of torture, and only as evidence that the accused obtained such statement by such means.” Similarly, the Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa require States to: “[e]nsure that any statement obtained through the use of torture, cruel, inhuman or degrading treatment or punishment shall not be admissible as evidence in any proceedings except against persons accused of torture as evidence that the statement was made.” Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, African Commission and Peoples’ and Human Rights, 32nd Sess., 17-23 October 2002, para. 29. Torture-tainted evidence should not be used to prove that the statement is true. It should only be used against a person accused of torture to prove that the statement was given under torture.9See J. HERMAN BURGERS & HANS DANELIUS, THE UN CONVENTION AGAINST TORTURE: A HANDBOOK ON THE CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT 208 (Martinus Nijhoff Publishers 1988). The ECCC Trial Chamber recognized this exception in Cases 00110See Case of Kaing Guek Eav alias “Duch”, 001/18-07-2007-ECCC/TC, Decision on Parties Requests to Put Certain Materials Before the Chamber Pursuant to Internal Rule 87(2), 28 October 2009, E176, para. 8. and 002/0111Case of NUON Chea et al., 002/19-09-2007-ECCC/TC, Memorandum titled “Trial Chamber response to Motions E67, E57, E56, E58, E23, E59, E20, E33, E71 and E73 following Trial Management Meeting of 5 April 2011,” 8 April 2011, E74, p. 3. and should continue to do so in Cases 002/02 and any other cases that may follow.

As aptly put by European Commissioner for Human Rights Alvaro-Gil Robles: “[T]orture is torture whoever does it, judicial proceedings are judicial proceedings, whatever their purpose – the former can never be admissible in the latter.”12European Commissioner for Human Rights Report by Mr. Alvaro-Gil Robles, Commissioner for Human Rights, on his visit to the United Kingdom, 4–12 November 2004, Strasbourg, 8 June 2005, Comm DH (2005) 6, para. 27.

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Author: Michael G. Karnavas

Michael G. Karnavas is an American trained lawyer. He is licensed in Alaska and Massachusetts and is qualified to appear before the various International tribunals, including the International Criminal Court (ICC). Residing and practicing primarily in The Hague, he is recognized as an expert in international criminal defence, including, pre-trial, trial, and appellate advocacy.

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