Case Watch: UN Rejects Evidence Obtained Under Torture

In our “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to their work to advance human rights law around the world.

Many of the cases brought before the UN Committee against Torture are brought by people who claim that their extradition or deportation would put them at risk of torture—11 of the 12 cases decided on the merits by the committee at its 46th session concerned such claims. But sometimes, the situation is compounded. What if the extradition of a person would not just result in torture, but the request for extradition itself was based on evidence obtained through torture?

That is the situation which the committee faced in the recent case of Ktiti v Morocco. Ktiti was a French national facing extradition from Morocco to Algeria on drugs charges. His brother brought his case before the Committee against Torture, claiming that he would be at risk of torture if he was sent to Algeria. (Article 3 of the Convention against Torture prohibits states from sending a person to a country “where there are substantial grounds for believing that he would be in danger of being subjected to torture”—a principle known as non-refoulement.) The basis for the extradition request was the evidence from another detainee in Algeria, M.K., who had identified Ktiti as an accomplice.

The committee upheld the claim, and agreed that Ktiti would be at risk of torture if he was extradited to Algeria. It based this on a range of factors, including reports on Algeria detailing torture of detainees by law enforcement officials. One factor was that it appeared that M.K. had provided the evidence against Ktiti on which the extradition request as a result of being tortured: his relatives reported several visible injuries after visiting him at the detention center, although they were not willing to make complaints themselves for fear of reprisals against M.K. As a result, the committee went beyond the original claim regarding non-refoulement under Article 3, and also found that Morocco had violated its obligation under Article 15 to ensure that statements obtained under torture cannot be used in evidence. The committee explained that the absolute prohibition of torture and of using statements obtained under torture includes “an obligation for each State party to ascertain whether or not statements included in an extradition procedure under its jurisdiction were made under torture.” Morocco had relied on the statement here without verifying whether or not they were obtained under torture, despite allegations that they were, and had therefore violated this obligation.

This decision echoes the recent European Court of Human Rights judgment in Othman (Abu Qatada) v. the United Kingdom, which also considered a question of extradition to a state using statements obtained under torture. In that case, the issue was not that the extradition itself was based on statements obtained under torture, but that the applicant was being sent back for a trial in which torture-evidence from third persons would be used against him. After examining a number of authorities which detail the prohibition on evidence obtained under torture, including extensive discussion of Article 15 of the Convention against Torture, the European Court concluded that there was a real risk of evidence obtained under torture being used at the trial, that this would constitute a “flagrant denial of justice,” and that extradition would therefore violate the right to a fair trial under Article 6 of the European Convention.

The Ktiti decision reinforces that states may not rely on evidence obtained under torture, even if the state did not carry out the torture itself. And once a state is on notice that statements may have been made under torture, it must verify whether or not this is the case. Turning a blind eye to claims of torture or passively utilizing its “products” is not an option.

Summaries of all decisions of the 46^th session of the UN Committee against Torture, including Ktiti v Morocco, are now available on the Open Society Justice Initiative’s website. The Justice Initiative provides digests of recent human rights decisions in order to bring the decisions of global human rights tribunals to the widest possible audience.