Overview of working methods and vision 2011, para. 54
Paragraph- Paragraph text
- While article 15 of the Convention covers judicial and administrative proceedings, it is silent on the question of the applicability of its provisions to intelligence or other executive decisions not directly arising from judicial or administrative proceedings. This is rendered more troublesome by difficulties in delineating purely "non-formal preventative" action by executive decisions arising from formal administrative proceedings. For instance, a State may rely on information provided by a third party, and which may have been obtained through torture, to arrest and detain an individual for the purpose of investigating his alleged suspicious activities. In such a case, aspects of administrative proceedings such as a deportation order may be used in the process of arresting the suspect. Thus, by virtue of article 15, it is argued that State institutions must take appropriate measures to ascertain whether or not the information on which a decision is based has been obtained as a result of torture. However, does the fact that the information was obtained through torture prevent the State from arresting the individual in the first place? Can it be used as intelligence or as the subject of an executive decision? Are diplomatic assurances relating to the origins of the information provided by third parties sufficient? We should be mindful of the real possibility that a policy of using such information for purposes other than trials, could provide an incentive to State agents to forego prosecutions altogether, and instead engage in disappearances, extra-judicial executions, and other illegal repressive measures that could lead to a total breakdown in the rule of law. These and other equally important questions relating to the applicability of the exclusionary rule to executive decisions and intelligence gathering merit further consideration in future reports of this mandate.
- Legal status
- Non-negotiated soft law
- Body
- Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
- Document type
- Special Procedures' report
- Means of adoption
- N.A.
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2011
- Paragraph type
- Other
- Paragraph number
- 54
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