The European Journal of International Law Vol. 17 no.2 © EJIL 2006; all rights reserved
The Admissibility of Evidence Obtained by Torture under International Law
* Walther Schücking Institute of International Law, University of Kiel, Germany. I would like to thank Vanessa Klingberg, Nicki Boldt, Björn Elberling, and Philipp-Christian Scheel for their valuable comments. All remaining errors, of course, are mine. Email: tobiasthienel{at}web.de.
The article presents a survey of the international legal issues raised by the use of evidence obtained by torture, which concern not only the procedural right to a fair trial, but also play a part in protection from the abhorrence of torture itself. In this discussion, the author passes comment on the recent English decisions in the case of A and Others. The question of the admissibility of such evidence is broken down into several different cases. All those cases come within the exclusionary rule of Article 15 of the UN Convention against Torture. The article further argues that the inadmissibility is also comprehensive under the right to a fair trial, having regard to the right against self-incrimination and to the unreliability of statements obtained by torture. It is also argued that this exclusionary rule is part of customary international law and that the very concept of jus cogens obliges all states to distance themselves from any violation of its substantive content and to therefore refuse to accept any evidence obtained by torture. The article therefore exposes the exclusionary rule as coextensive with the prohibition of torture and as a function of this prohibition.