evidence and confessions obtained through torture or cruel, inhuman and
degrading treatment, cannot be used in judicial proceedings apart from for
the purpose of prosecuting the act of torture or ill-treatment itself.130
214.
The African Commission makes reference to Article 15 of the
Convention Against Torture (CAT). It also notes that it has been accepted as
inherent in international fair trial provisions comparable to Article 7 of the
African Charter. The European Court of Human Rights for example has held
that “the use of evidence obtained in violation of Article 3 [prohibition
against torture or ill-treatment] in criminal proceedings raises serious issues
as to the fairness of such proceedings. Incriminating evidence – whether in
the form of a confession or real evidence – obtained as a result of acts of
violence or brutality or other forms of treatment which can be characterized
as torture should never be relied on as proof of the victim‟s guilt, irrespective
of its probative value.���131
215.
It notes that the principle can also be found in the Egyptian
Constitution of 1971 which stipulates that “if a confession is proved to have
been made by a person under any …forms of duress or coercion, it shall be
considered invalid and futile”132
216.
Thus, where an individual alleges that a confession has been obtained
by torture or ill-treatment, the burden of proof then lies in this case on the
state to demonstrate that the confession in question was freely made.
Although the Committee against Torture has affirmed in a number of cases
130
See above, note and accompanying text and, in general, Section III.A.2 (b)(iv).
131
ECtHR, Harutyunyan v. Armenia at para. 63.
132
See Article 42 .
66
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