that, “it is for the author to demonstrate that her allegations are well
founded”,133 it nevertheless stressed in P. E. v. France that,
“In the light of the allegations that the statements at issue,
which constituted, at least in part, the basis for the additional
extradition request, were obtained as a result of torture, the
State party had the obligation to ascertain the veracity of such
allegations.”134
217.
In a similar vein, the Special Rapporteur on Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, reviewing two national
decisions that adopted a somewhat different approach to the standard of
proof question,135 noted as follows:
“[…] the applicant is only required to demonstrate that his or
her allegations of torture are well founded. This means that the
burden of proof to ascertain whether or not statements invoked
as
evidence
in
any
proceedings,
including
extradition
proceedings, have been made as a result of torture shifts to the
State.136
218.
Accordingly, once a victim raises doubt as to whether particular
evidence has been procured by torture or ill-treatment, the evidence in
question should not be admissible, unless the State is able to show that there
is no risk of torture or ill-treatment. Moreover, where a confession is obtained
133
P.E. v. France para. 6.3; see also G. K. v. Switzerland (Comm. 219/2002), Committee against Torture, decision of 7 May
2003, UN doc. CAT/C/30/D/219/2002, para. 6.11.
134
P. E. v. France (above n. para. 6.2; see also the slightly different formulation used by the Committee in G. K. v.
Switzerland para. 6.10: “[…] the broad scope of the prohibition in article 15, proscribing the invocation of any statement
which is established to have been made as a result of torture as evidence “in any proceedings”, is a function of the absolute
nature of the prohibition of torture and implies, consequently, an obligation for each State party to ascertain whether or not
statements admitted as evidence in any proceedings for which it has jurisdiction, including extradition proceedings, have
been made as a result of torture.”
135
Hanseatisches Oberlandesgericht (Hanseatic Court of Appeals, Criminal Division), Hamburg; decision of 14 June 2005,
NJW 2005, 2326 and A and others v. Secretary of State for the Home Department [2005] UKHL 71
136
Report of the Special Rapporteur on torture, and other cruel, inhuman or degrading treatment or punishment; UN doc.
A/61/259 (2006), Annex, para. 63.
67
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