7.1 Introduction
In the earliest individual communications considered by the Human Rights Committee (HRC or Committee) in relation to breaches of the International Covenant on Civil and Political Rights (ICCPR),Footnote 1 there was little guidance on evidentiary burdens. Over the past four decades of reviewing individual communications, the HRC has developed greater consistency when allocating the burden of proof, particularly in relation to claims of torture. This development makes a unique case study for the consideration of evidence in torture claims, as these are rarely raised in isolation before the HRC. Unlike claims before the Committee against Torture (CAT), the HRC monitors a range of interrelated human rights that expand beyond the prohibition against torture. Allegations of breaches of other rights, such as the right to liberty and security of a person, often foreground torture allegations when raised before the HRC. In claims of torture while in the custody of the state, individual claimants, referred to as ‘authors’ in the treaty body system, and the state are generally on unequal footing in terms of accessing corroborative or exculpatory information. As such, the HRC tends to shift the burden of proof to the state as a means of addressing this asymmetry.
This chapter aims to assess whether the HRC’s practice of shifting the evidentiary burden between the author and the state is consistent and traceable in the Committee’s decisions on individual communications, known as ‘final views’. The grounds on which this shift is made merit consideration: notably, the nature of the allegations, the evidence used to corroborate the allegations, and the extent to which the state engages with the process seem to impact the articulation of the shifted burden in certain cases. For example, in Maya v. Nepal (2017), a particularly egregious but not isolated case, the author alleged that she was beaten and gang raped by officers of the Royal Nepalese Army for being a suspected Maoist supporter.Footnote 2 Based on the alleged conduct by state actors, she claimed violations of multiple rights protected by the ICCPR, including breaches of the prohibition against torture or other cruel, inhuman or degrading treatment (CIDT) (Article 7), the right to liberty and security of person (Article 9) and the right to be free from inhuman treatment in detention (Article 10 (1)), among others. The core of Maya’s claim was grounded in the state’s failure to investigate her claims of torture while being held in an informal place of detention, despite her submission of supporting evidence to the local police. The evidence provided at the local level and to the HRC included detailed witness statements, medical records and legal documents.Footnote 3 In response to the claim before the HRC, Nepal indicated that ‘the Royal Nepalese Army had no record of the author’s detention’.Footnote 4 In its consideration of the merits, the HRC ‘recall[ed] that the burden of proof cannot rest on the author of the communication alone, especially since the author and the State party do not always have equal access to the evidence and it is frequently the case that the State party alone has the relevant information’.Footnote 5 Following a finding that Nepal had breached the prohibition against torture, the HRC went on to discuss the breach of the right to liberty and security of a person. In response to the State’s suggestion that the author failed to evidence her allegations relating to detention in the army barracks, which opened up the circumstances under which she was subsequently tortured, the Committee noted that ‘requiring victims of arbitrary and illegal detention to provide records thereof would amount to a probatio diabolica [devil’s proof]’.Footnote 6
In law, probatio diabolica denotes a proof which cannot possibly be achieved, meaning an impossible proof. In judicial proceedings, whenever such a proof is expected from a party, the latter will by definition not be in a position to bring it. The only remedy against this situation is for the adjudicatory body to shift the burden of proof onto the other party. In effect, if such a shift is operated, a presumption arises in favour of the party originally expected to prove their claim. This presumption will stand unless the party to which the burden has been shifted rebuts it with exculpatory proof. The framing of the burden of proof in the Maya case is interesting because the HRC’s approach to establishing or balancing burdens of proof has not always been self-evident. The HRC has long recognised that the authors and states parties to the ICCPR will not always have equal access to evidence. However, there has been little attention paid to the base levels of evidence required to support a higher burden being placed on the state to disprove an alleged violation of the ICCPR. More reflection, too, is necessary on the ways in which a state’s participation or non-participation in the individual communications process shapes any potential shift of the evidentiary burden.
The analysis presented below interrogates the types of evidence that are required from the author to shift the burden of proof to the state to disprove allegations of torture in violation of the ICCPR. As Joost Pauwelyn has explored previously, the ‘burden of proof’ can be separated in a number of ways, including by distinguishing between the burdens of, respectively, ‘production’ (referring to the evidence a party is expected to submit) and ‘persuasion’ (referring to the risk of losing the case for lack of having properly evidenced it).Footnote 7 While his work examines defences in more complex international claims, here the term ‘burden of proof’ absorbs both concepts for simplicity in the cases raised before a treaty body. A more complete understanding of the operation of the burden of proof in cases before the HRC is important, as treaty bodies shape the outer edges of human rights interpretations in response to the broad range of individual communications they review. In the context of what the HRC is doing in the cases examined, it appears to be developing a (increasingly) consistent practice of adjusting evidentiary burdens as a means of overcoming information asymmetries resulting from the inaccessibility of either inculpatory or exculpatory information. To effect this burden shift, the HRC appears to follow the following steps when assessing claims of a breach of the prohibition against torture or CIDT: (1) the allegations must be corroborated by some level of evidence; (2) the HRC applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture or CIDT. Tilmann Altwicker and Alexandra Hansen recently elaborated the main functions that presumptions serve in human rights adjudication, including: ‘(1) overcoming information asymmetries or the inaccessibility of information, (2) helping to bridge general facts and the legal assessment in individual cases, and (3) helping to avoid normative conflicts between legal regimes’.Footnote 8 The first of these functions, overcoming information asymmetries and inaccessibility of information, resonates with the practice of the HRC. Across the claims assessed by the HRC, the presumption is applied where the access to relevant inculpatory or exculpatory evidence is unequal and the state is in the stronger position to access such information. The presumption applied by the HRC also helps address the summary nature of the final views, where a complete account of the evidence presented is not available, but only summarised in the public decision. This reflects the second function of presumptions outlined by Altwicker and Hansen, as the presumption ‘function[s] as a secondary rule on secondary rules of adjudication when they are applied in the context of uncertainties in fact-finding’.Footnote 9 It is suggested here that the presumption employed by the HRC aids in both overcoming information asymmetries and bridging general facts and the ultimate legal assessment.
This chapter will contextualise the situations of evidence burden shifting as they occur in torture claims before the HRC. First, Section 7.2 will briefly explain the individual communications underpinning this analysis. In Section 7.3, the burden of proof in the HRC individual communications procedure will be discussed in the context of (in)equality of access to information and how this sets the stage for the burden of proof to be transferred from the author to the respondent state. It will outline how equality of access to information underpins the concept of equality of arms, which is defeated by state non-participation. Section 7.4 then traces the HRC’s approach to burdens of proof and non-participation by states in cases where a breach of the prohibition against torture is alleged. The aim is to discern patterns in the allocation of evidentiary burdens, as indicated by a presumption being established in favour of the complainant. Section 7.5 offers some final reflections on the ways in which the practice of the HRC has coalesced when faced with information asymmetry and the need to bridge facts and legal assessment.
7.2 Brief Explanation of the Cases Sampled
Under the Optional Protocol to the ICCPR (OP-ICCPR) individuals may raise before the HRC a claim, in writing, that any right set out in the ICCPR has been violated as long as the individual has exhausted all domestic remedies and complies with other procedural requirements.Footnote 10 Notably, consent to the HRC’s review of individual communications is an elective, additional obligation on the state that sits adjacent to obligations arising through the ICCPR. States parties to the OP-ICCPR have six months to explain or clarify the matters raised in a claim, including any remedies delivered at the domestic level, once the Committee has notified the state of the complaint.Footnote 11
This chapter is based on a review of HRC decisions concerning alleged breaches of Article 7 of the ICCPR, which lays down the prohibition against torture or CIDT (the prohibition). Focusing on torture claims is interesting given the extensive codificationFootnote 12 of the prohibition in international law, as well as its recognition as both a rule of customary international law and an inviolable peremptory norm.Footnote 13 Exploring the prohibition under the ICCPR, rather than the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, enables the breach of the prohibition to be understood in the context of other human rights violations addressed in the extensive jurisprudence of the HRC. Furthermore, within the ICCPR system, as explained below, torture is often the consequence that follows the breach of another civil and political right, such as interference with the right to liberty and security of person (Article 9 ICCPR). The content of the prohibition as a norm is constantly evolving in the distinctive treaty regimes. This evolution has the potential to influence the development of the prohibition’s interpretation as both a treaty obligation and a customary rule of international law, which is generally assessed through state practice.Footnote 14 In light of the connective value between treaty interpretations and the progressive development of customary international law, the analysis below relies explicitly on the language deployed by the HRC to address evidentiary burdens in situations where the state does not participate, either fully or partially, in the individual communications process.
The cases underpinning the analysis provided in this chapter were selected using the following process. First, the Office of the High Commissioner for Human Rights (OHCHR) Juris Database was searched using the term ‘forced confession’ in conjunction with Article 7 (prohibition against torture), Article 9 (right to liberty and security of person) and Article 14 (right to fair trial) of the ICCPR (ninety-one results).Footnote 15 The process was repeated using ‘solitary confinement’ in conjunction with the same articles (forty-four results). These cases are premised upon the author being detained, legally or not, and the state using detention as an opportunity to force a confession or to punish the detainee.Footnote 16 As detention triggers an obligation for the state to keep records, these cases serve as a good basis for discussing the impact of the state’s lack of participation in the individual communications process. This set of 135 cases was narrowed down through the elimination of cases that were either about non-refoulement or predominantly related to psychological suffering arising from the enforced disappearance of a family member. These would not have been helpful for examining the question addressed in this chapter, since non-refoulement cases are not claims of torture by the state that is party to the claim, but relate to the potential for torture if returned to another state. As such, the access to evidence about the detention or treatment of the individual author typically is not accessible by the defending state. Claims raised for psychological suffering arising from the enforced disappearance of a family member were excluded, also, because the psychological torture in these cases is an indirect effect of the state’s alleged actions against another individual. Notably, however, some enforced disappearance cases are used to set out the original understanding of evidentiary burden shifting presented in Section 7.3. Narrowing the field to the two items of forced confessions and solitary confinement ensured that the research, although non-exhaustive, would be manageable, as well as broadly comparable in the forms of evidence that could be expected to be offered.
The set of cases was reduced yet further by only keeping decisions that included one (or more) of the following phrases, which indicated that the respondent state did not fully engage with the communications process: ‘failure to refute allegations’, ‘absence of any convincing explanation’, ‘failure to contest’, ‘has not commented on allegations’, ‘absence of information’, ‘failure to provide information’ and ‘failure to provide a response’. This narrowed focus aids in tracing the shifting of the burden of proof in communications alleging a breach of the prohibition against torture. The result is that Section 7.4 is based on an analysis of twenty-six HRC final views.
7.3 The Burden of Proof in the Individual Communications Procedure
This chapter focuses on claims that have cleared the initial admissibility determination by the HRC. Among other information required to access the OP-ICCPR dispute settlement mechanism, communications must include ‘[t]he facts of the claim and evidence to substantiate them’ (emphasis added).Footnote 17 This suggests that the HRC, like other dispute settlement bodies, requires more than a narrative of alleged facts. Typically, the extent to which the author must prove the alleged facts is referred to as the burden of proof. Notably, unlike traditional courts, the publicly available decisions in the HRC individual communications procedure provide only a summary of the written exchanges between the individual and the state, which can obscure the evidentiary support for claims.
The burden of proving allegations links to the right to fair trial. In General Comment 32, the HRC explained that the right to fair trial (Article 14 ICCPR) requires that both sides of a dispute are ‘given the opportunity to contest all arguments and evidence’.Footnote 18 It is a rights-protecting requirement to ensure equality of arms of the author and the respondent. As explored elsewhere, equality of arms in international law does not require ‘mathematical equality’, but rather a proportional opportunity to substantiate or rebut claims in order to uphold the substance of the right to fair trial as interpreted under the ICCPR.Footnote 19 Notably, most of the discussions relating to this aspect of fair trial play out in the context of international criminal law or regional human rights courts’ analysis of domestic criminal prosecutions. The foundation for equality of arms is rooted in these examinations of what information the state might hold about a defendant in the criminal justice system. In such examinations, the defendant is being prosecuted for breaching the laws of the state. There is a concomitant obligation on the state to reveal any evidence in its possession that may exculpate the defendant.Footnote 20 The overarching aim is to ensure that the conditions relating to the presentation of the case, including any available evidence, do not place any party at a disadvantage vis-à-vis their opponent.Footnote 21
As a preliminary matter, it is important to recognise that within the range of activities that give rise to a breach of the torture prohibition, some granularity is required in consideration of the specific actions alleged and the particular status of the victim. The analysis below will focus on two types of claims: forced confessions and torture as punishment of alleged criminals, including political dissidents and alleged terrorists. Some of the cases, unsurprisingly, will traverse both types of claims. However, the analysis will focus on the key evidence features relevant to the HRC’s decision on the merits. The different approaches to balancing burdens of proof in the two types of claims will be addressed in turn in Section 7.4. First, however, the sub-sections below will offer a brief explanation of the HRC’s teleological treatment of evidence across the decades of its operation, as well as a comment on non-participation by states in the individual communications process.
7.3.1 Evidentiary Burdens in Cases of Torture Addressed by the HRC: Brief Teleological Review
In its early reviews of alleged violations of Article 7 (prohibition against torture), the HRC did not explain the process it used for weighing evidence. The Committee, however, noted that the victim’s and the state’s access to evidence substantiating or disproving a claim of torture was typically unequal. In the 1982 case of Bleier v. Uruguay, the HRC explained that this lack of equality necessitated shifting the burden of proof to the state:
With regard to the burden of proof, this cannot rest alone on the author of the communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to relevant information.Footnote 22
Two years later, in the case of Weismann and Perdomo v. Uruguay, Uruguay acknowledged that it had detained the complainants, but it dismissed the claims of torture as ‘figments of the author’s imagination’.Footnote 23 The HRC confirmed that it was up to the State to offer alternative explanations as a means of disproving the author’s detailed allegations of torture while in detention – claims which were supported with medical documentation.Footnote 24 When Uruguay did not offer an alternative explanation, the HRC found a breach of the prohibition against torture and CIDT.
During the 1980s and 1990s, the HRC had the occasion to review many communications in relation to enforced disappearances, torture and other forms of prohibited treatment. Over the years, the Committee refined its evidentiary burden placement into a formula. This expressly recognises that while the author holds the initial burden of proof, certain types of evidence – either implicatory or exculpatory in nature – will be held by the state. In such circumstances, the burden must shift to the state ‘to provide a satisfactory and plausible explanation supported by evidence’.Footnote 25 While there has been no explicit guidance on what amounts to a ‘satisfactory and plausible explanation’, the HRC noted in Khadzhiyev v. Turkmenistan (2018) that ‘[i]f a death occurs in custody, it should be regarded prima facie as a summary or arbitrary execution, unless this presumption can be rebutted by a thorough, prompt and impartial investigation’.Footnote 26 In this particular case, the author had alleged that his sister, Ogulsapar Muradova, had died in state custody as a result of torture and ill-treatment, among other violations of the ICCPR. The evidence offered to the Committee included the personal, detailed observations of Muradova’s body post-mortem, which strongly indicated torture and ill-treatment.Footnote 27 In its consideration of the merits, the HRC found that Turkmenistan’s suggestion that Muradova committed suicide was not supported by any evidence. The State had also not presented any evidence of an investigation into her death that might have rebutted the allegations that she had died as a result of torture.Footnote 28
As made clear by the HRC, the evidentiary shift stems from the onus on the state to take responsibility for the lives of individuals whom it takes into custody.Footnote 29 Part of the responsibility of the state when detaining individuals is the keeping of accurate records, including the legal basis for the original and ongoing detention, the treatment of the individual while in detention and the responses to any allegations of ill-treatment while in detention.Footnote 30 Withholding information about the individual during their time in the custody of the state deprives that individual of equality of arms with the state.Footnote 31 As noted in the Maya case introduced above, the HRC demands that when ‘the author has presented a credible case as to her detention … requiring victims of arbitrary and illegal arrest and detention to provide records thereof would amount to a probatio diabolica’.Footnote 32 The HRC’s use of ‘devil’s proof’ is a compelling framing of the evidentiary burden in the Maya case, where the author had presented detailed, multi-fold allegations of arbitrary detention and torture by members of the Royal Nepalese Army and Armed Police Force. The HRC’s approach in Maya suggests that any burden amounting to ‘devil’s proof’ should be examined carefully to ensure that no party bears an illogical burden. It is sufficient here to acknowledge that use of ‘devil’s proof’ by the HRC in the context of burden shifting appears to resonate with other human rights bodies and warrants a closer examination to better understand such shifts.Footnote 33
Across the different cases examined here, the Committee appears cognisant of the necessity for the teleological interpretation of the prohibition to draw a clear baseline for treatment that states parties should not cross. A question arises, however, in discerning where the facts actually lay in the context of proof of torture when the state fails to participate effectively in the proceedings. Section 7.3.2 considers non-participation in the context of individual communications procedures before the HRC.
7.3.2 Non-participation and Burdens of Proof in Final Views
Consent to the OP-ICCPR individual communications procedure is an additional, voluntary step that each state party must unilaterally elect to take. However, even though states choose to subject themselves to this procedure, this does not ensure that they will necessarily participate in actual proceedings. In claims of torture, decisions finding states in breach of the prohibition often result from the state’s failure to participate in the proceedings. In such cases, states either fail to directly respond to the shifted evidentiary burden or do not participate at all in the proceedings, which permits the author’s allegations to lay uncontested. Common approaches in the deployment of secondary rules of law for non-participation in international dispute settlement proceedings recently were examined by Christopher Lentz, including in relation to the individual communications proceedings by the UN treaty bodies. In addition to the International Court of Justice (ICJ), the Permanent Court of Arbitration and the International Tribunal on the Law of the Sea, Lentz reviewed the HRC, the CAT and the Committee on the Elimination of Discrimination against Women and their approaches to non-participation in the course of assessing individual communications.Footnote 34 As explained by Lentz, the analysis was based on a non-exhaustive review of the three human rights treaty bodies as a means of discerning similarity or divergence in practice across the range of adjudicatory mechanisms. By contrast, this chapter narrows the focus to the HRC and explores whether there is a consistent pattern in the way this body determines claims of torture when the respondent state fails to participate in the proceedings or does not specifically rebut the facts underpinning the claim of torture.
In cases of non-participation, Lentz suggests that one must rely on the constitutive documents of a dispute settlement body to ascertain how far the adjudicator might go to determine a claim.Footnote 35 Similarly, relying on its competence-establishing document, the OP-ICCPR, the HRC must review ‘all information made available to it’ without setting a minimum threshold for what the state must present in response to an author’s claim.Footnote 36 From the perspective of the state, participation affords the opportunity to defend itself against claims of human rights violations. Even if the state holds evidence confirming the facts alleged, opening discussions with the HRC about gaps in implementation or practice would direct the HRC’s attention to the specific circumstances. This type of bilateral dialogue is a key purpose of the treaty bodies.Footnote 37 Provision of specific evidence could also guard against broader assumptions about the state’s adherence to its treaty obligations or the state’s general approach to implementation of the treaty.
7.4 Examining the Burden of Proof Across Two Foci
In the HRC’s earliest reviews of individual communications, some states dismissed the efforts of the Committee in its quasi-judicial pursuits, deeming its requests for information on allegations of torture as ‘not worthy of any further comment’.Footnote 38 Undeterred, the HRC set out that where a government refuses to furnish information in response to allegations under the OP-ICCPR, the HRC ‘cannot but draw appropriate conclusions on the basis of information before it’.Footnote 39 There are countless examples within the treaty body jurisprudence database where the state does not directly respond to the explicit allegations raised. This makes it important to understand what initial burden of proof the HRC applies to the complaining author before shifting the burden of proof onto the state. Across the sample of communications reviewed here, the HRC’s practice is charted chronologically to develop a preliminary picture of how the HRC is balancing evidentiary burdens in cases that involve claims of torture in detention. In this narrowed field of cases, there were only five examples where a state did not participate in the communications process at all. As such, the analysis weaves these cases of absolute non-participation with the cases where the state did not fully participate through a failure to respond directly to the author’s claims. The following sub-sections consider two types of claims: forced confessions and torture as punishment of alleged criminals (including political dissidents and alleged terrorists).
7.4.1 Forced Confessions
The link between torture and forced confessions is a central motivation for the international prohibition against torture and one that is typically elaborated in national laws and rules of evidence.Footnote 40 Two 2004 decisions demonstrate the HRC’s unequivocal practice in response to allegations of forced confessions. In Singarasa v. Sri Lanka, the HRC noted that it is not enough for an alleged victim to be required to meet a low burden of proof to substantiate a torture claim in the national criminal justice system, as was argued by Sri Lanka.Footnote 41 Instead, the HRC considered that the burden of proof to disprove torture resulting in admissions of guilt shifts completely to the State and requires that the State provide specific evidence to account for the treatment of the author during an interrogation resulting in a confession.Footnote 42 This shift is equally present, though less specific, in cases where the state fails to respond in any way to a forced confession claim. This was confirmed in Khomidova v. Tajikistan, where it was found that ‘[i]n the absence of a reply from the State party, due weight must be given to the author’s allegations, to the extent that these have been properly substantiated’.Footnote 43 In this context, ‘due weight’ equates to the HRC’s acceptance of the allegation of torture. ‘Properly substantiated’ initial allegations of fact appeared anchored in the detailed description of the alleged prohibited acts, including identification of the alleged perpetrators, coupled with the failure of the State to respond to the claim of a forced confession.Footnote 44
The same phraseology was repeated in Sultanova v. Uzbekistan in 2006, where the allegations of torture to elicit a confession were presented in significant detail.Footnote 45 The State nevertheless failed to respond directly to Sultanova’s claims.Footnote 46 Again, the Committee did not explain what is required to ‘properly’ substantiate a claim for the purposes of meeting the author’s burden of proof. However, it appears to have treated the state authorities’ failure to ‘discharge their obligation effectively to investigate complaints about incidents of torture’ as adding ‘due weight’ to the complainant’s allegations.Footnote 47 In response to a similar complaint against Uzbekistan the following year, the HRC gave ‘due weight’ to the allegations of torture where the State failed to ‘demonstrate that it conducted any inquiry’ into allegations of a forced confession.Footnote 48 These cases suggest that the state’s failure to carry out its positive obligation to investigate allegations of torture contributes to the weight with which the complaining author’s version of the facts is received. It does appear, too, that some form of presumption is applied in order to counter the information asymmetry affecting evidence presented to the Committee. In both cases against Uzbekistan, the State failed to investigate the original claims of torture to extract confessions and also did not offer any information to directly rebut the claims of torture.
The presumption of factual validity in the absence of the state’s response to allegations of forced confessions continued in Rakhmatov et al v. Tajikistan in 2008. The communication was submitted on behalf of five men, including two minors, who claimed to have been subjected to torture to elicit confessions.Footnote 49 However, it is notable that one of the Article 7 claims (in relation to Bobonyoz Safarov) was dismissed for failure to provide details or supporting documents. This confirms that there is a minimum standard to be met.Footnote 50 Tajikistan failed to engage with the Committee, and as a result, the HRC concluded that ‘due weight must be given to the authors’ allegations’.Footnote 51 Four of the five complainants provided extensive detail of their treatment, were able to identify the alleged perpetrators and provided evidence that they had raised the allegations with the prosecutor’s office and in their first court appearances.Footnote 52 The HRC determined that, at the very least, Tajikistan had failed to fulfil its positive obligation to investigate the allegations of torture.
A similar 2011 decision against Tajikistan found the HRC determining that ‘due weight’ should be given to the detailed allegations of torture to force a confession in the face of the state’s failure to respond.Footnote 53 Once again, the state’s lack of participation led to a final view that Tajikistan had breached Article 7. In this instance, the victim’s status as a prominent opposition politician meant that there was a great deal of open-source material available to support the allegations. The HRC repeated its formulation of ‘due weight’ in numerous subsequent cases of forced confessions where the state either failed to participate or failed to respond to the allegations of torture to elicit confessions.Footnote 54
Throughout the forced confession cases examined, the HRC has repeatedly reminded states that ‘it is incumbent on the State party to produce evidence refuting the author’s allegations’.Footnote 55 This position tracks the requirement in many common law systems that confessions be untainted. In cases of forced confessions, the non-participation of the state yields the same result whether the state fails to respond to the specific allegation or does not engage with the proceedings at all.
7.4.2 Punishment of Alleged Criminals
Allegations of the use of torture as a tool to punish alleged criminals and suppress political opposition, often under the guise of counter-terrorism, is a recurrent theme in the jurisprudence of the HRC. While the cases of forced confessions have a clear history of burden shifting, the use of torture as punishment is examined separately, as the HRC’s approach to evidentiary burdens in this context took longer to emerge. In the 1984 Weismann and Perdomo case against Uruguay, discussed in Section 7.3, the HRC examined allegations of torture through the complainants’ comprehensive narrative, accompanied by medical documentation and photographs.Footnote 56 The complaining authors offered extensive detail regarding which state authorities held them as ‘subversives’ in incommunicado detention and where the various forms of torture and ill-treatment took place.Footnote 57 Uruguay failed to offer any explanation or evidence to contradict the facts presented, other than to confirm that one of the authors had been detained, charged and tried in a military court.Footnote 58 No discussion of the corroborating evidence was presented. Ultimately, the HRC concluded that the ‘present state of physical and mental ill-health for which no other explanation has been offered by the Uruguayan Government, confirms the allegations of ill-treatment which he suffered while under detention’.Footnote 59 The HRC’s conclusion in Weismann and Perdomo laid out a presumption that is rebuttable, as the author’s narrative and evidence were accepted in part due to the State’s failure to offer a reasonable explanation to the contrary. The presumption seems to address information asymmetry between the parties as well as bridge the gap between the facts and the legal conclusion in this particular case, thus reflecting two of the three main functions that presumptions serve in law (as outlined in the introduction).Footnote 60 The level of detail offered by the author appears to be an important prelude to a complete shift of the burden of proof.
A decade later, in Mukong v. Cameroon (1994), the author offered extensive detail in support of his claims regarding the conditions suffered in incommunicado detention, including threats of torture and generally poor conditions of confinement.Footnote 61 As a journalist and outspoken advocate of political reform, Mukong was arrested on multiple occasions for peacefully expressing his opinions. In this instance, Cameroon engaged extensively with the Committee. In part, it defended the poor conditions as a reality of the developing social and economic status of the country, but did not offer any evidence to expressly refute the allegations of torture threats.Footnote 62 Notably, this demonstrated an effort on the part of the State to offer some degree of exculpatory evidence in terms of the environmental conditions that could lead to a breach of Article 7. However, the State also ‘submit[ted] that the burden of proof for his allegations lies with the author’.Footnote 63 The author referred to reports by Amnesty International to reinforce the prevalence of torture in Cameroon, and the State submitted a report by the National Centre for Studies and Research about improvements to the prison system to support its defence.Footnote 64 The HRC considered all of the information made available but appears to have given greater weight to the detailed narrative offered by the complainant, using its previous phrasing that ‘the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information’.Footnote 65 Again, rather than concentrate on the author’s burden, the Committee focused on the lack of detail offered by Cameroon in direct response to the claims of torture, by which the State failed to adequately discharge the state’s evidentiary burden.
Two years after Mukong, the HRC examined a claim addressing the torture and disappearance of a girl-child, following her detention by Peru for alleged terrorist activities.Footnote 66 While the State responded to the HRC, it did not provide any information on what happened to the victim prior to or following her pre-trial release, at which point she disappeared. In its decision, the HRC determined that where the State does not provide direct information on the substance of the claim, ‘due weight must be given to the author’s allegations, to the effect that they have been substantiated’, but the Committee did not discuss what amounted to ‘substantiated’.Footnote 67 This is the beginning of the use of ‘substantiated’ in connection with the complainant’s level of proof in cases of torture as punishment. This was also deployed in cases of forced confessions, as seen in the cases against Uzbekistan discussed in Section 7.4.1. Even at this early stage it appears that the HRC was developing a practice of affording due weight to a ‘substantiated’ claim when the state failed to respond to the explicit allegations.
The following year, a similar case against Peru found the State countering the allegations of ill-treatment of an alleged terrorist by providing multiple medical reports about the victim’s health and extensive information about detention conditions, including visits by the International Committee of the Red Cross (ICRC).Footnote 68 Unlike the previous case, the State provided much more formal evidence than the author, according to the information summarised in the decision. However, the State did not provide information specifically to rebut the allegations regarding incommunicado detention and torture prior to and immediately following the author’s conviction. Some of Peru’s arguments were rebutted by its own evidence and a letter from the ICRC.Footnote 69 Ultimately, the HRC found that although the State offered detailed information about the author’s medical treatment, it failed to respond to specific torture claims, which resulted in a finding that the State breached Articles 7 and 10 of the ICCPR.Footnote 70
These cases against Peru demonstrate differing approaches to the state’s provision of information vis-à-vis the allegations. The state’s failure to respond specifically to detailed allegations of prohibited treatment across these cases suggests that the failure to respond weighs more heavily on the ultimate determination than the formal evidence supplied to corroborate the author’s claims. This was confirmed in 2005 when the HRC examined Carranza v. Peru, another case regarding torture and ill-treatment of an alleged terrorist. The author provided an extensive account of the treatment suffered, while the State failed to provide any observations on the case. The HRC found a violation of Article 7, among other articles, noting that ‘[a]s the State party provides no information to contradict these allegations, due weight must be given to them and it must be taken that the events occurred as described by the author’.Footnote 71 When the state fails to engage effectively in the communications procedure, either through the lack of a direct response to the claim or by non-participation, the balance tips further in favour of the author.
A direct link between the evidence offered by the complainant and the state party’s failure to respond to it was outlined in Aber v. Algeria in 2007. This is one of the first cases that provided unambiguous, succinct insight into the process followed by the HRC in terms of balancing evidence between the parties. As a starting point, the HRC recalled its long-standing principle that the burden of proof does not rest solely on the author of the communication and that a state party has an implicit good faith obligation to investigate allegations made against it and to provide the Committee with all information available.Footnote 72 The Committee then set out that when the alleged facts are ‘corroborated by credible evidence’ (emphasis added) and ‘where further clarification depends on information exclusively in the hands of the State party’, it may then consider the claims ‘substantiated in the absence of satisfactory evidence or explanations to the contrary’.Footnote 73 The evidence provided in the Aber case included a detailed account of the applicant’s treatment at various detention sites, which was uncontested by Algeria. There is no guidance as to what equates to ‘credible’ evidence or whether this is a standard similar to the ‘proper’ substantiation of evidence required in the cases against Uzbekistan, discussed above. The ‘corroboration’ appears grounded in the combination of evidence presented by the complainant and the State’s failure to provide exculpatory material.Footnote 74 Aber offers the clearest language indicating the direct relationship between the author’s level of detail and the State’s non-response being used as corroborating evidence. Algeria’s failure to respond specifically using evidence that should have been in its possession meant that it did not meet its burden to disprove the allegations of torture. This resulted in the presumed factual validity of the claims and a finding that Algeria breached Article 7.
The subsequent case of Almegaryaf and Matar v. Libya (2014) reinforced the principle that the absence of the state’s response leaves the evidence to stand for itself.Footnote 75 In this case, two political opposition leaders were kidnapped in Egypt and renditioned to Libya. Smuggled letters from one of the alleged victims delivered accounts of their whereabouts and their treatment, as outlined in the complaint. This information, coupled with UN reports on the inhuman conditions in the detention facility, information provided by a fellow inmate of one of the victims and the State’s failure to respond, resulted in the finding of a breach of Article 7.Footnote 76 Here, we see the provision of variable forms of evidence by the complainants, coupled with the State’s non-participation, underpinning the complete shift of the burden to the State to disprove the torture claim.
The HRC provided a further increment of guidance on what is required from the state when responding to allegations of torture in detention in Tyan v. Kazakhstan (2017). The author of the complaint offered extensive detail of his detention and treatment while in the custody of the State, as well as the discrepancies in the maintenance of procedure and paperwork that occurred at every stage of his detention, prosecution, conviction, and appeal.Footnote 77 Kazakhstan responded to the author’s complaints on several very specific points relating to his written confessions, medical reports of his condition and evidence used in his trial for murder. However, none of the responses addressed the acts of torture. In its examination of the merits, the HRC determined that it was not enough that the State responded and offered documentation on the decisions taken not to investigate the author’s allegations. In finding a breach of Article 7, the HRC specified that the State must present documentation to support its arguments that torture has not taken place.Footnote 78 This suggests that the state’s burden of proof to counter claims of torture may be higher than the complainant’s burden in establishing a claim. In a number of the cases introduced, up to this point, the claims of torture were grounded entirely in the author’s account of the circumstances underpinning the claim. Until the Tyan case, ‘support’ and ‘corroboration’ of the state’s defences to the alleged breaches of Article 7 had not expressly required the production of exculpatory documentation by the state. With this line of cases, the HRC sets out a more demanding requirement on the state to defend itself against claims of torture as a way of addressing the asymmetry of access to information between the state and the victim.
Though a case of enforced disappearance, another 2017 communication against Nepal finally offered a concise articulation of the HRC’s approach to assigning the burden of proof in cases of torture of an individual detained by the state. In this instance, the disappeared victim was a human rights defender and member of a political opposition group.Footnote 79 The author’s claims were reinforced by further documentation provided to the Working Group on Enforced or Involuntary Disappearances and the ICRC, among others.Footnote 80 Nepal’s response focused on a domestic Supreme Court habeas corpus proceeding, where it had denied detaining the author. It also highlighted the fact that Nepal was planning to establish a truth and reconciliation commission to address the widespread practice of disappearances.Footnote 81 Nepal did not, however, respond to the specific allegations of torture. As such, the HRC determined that:
In cases where the author has submitted allegations to the State party that are corroborated by credible evidence, and where further clarification depends on information that is solely in the hands of the State party, the Committee may consider the author’s allegations substantiated, in the absence of satisfactory or explanations to the contrary presented by the State party.Footnote 82
This formulation was repeated almost verbatim in the subsequent case of Pandey v. NepalFootnote 83 in 2018 and builds upon the cases discussed above that have been decided since 2007. The Committee’s three-stage formulation of the provision of evidence in cases of alleged torture in state detention is as follows. First, the complaining author must provide ‘credible evidence’. Second, the state must offer a response specifically to the evidence of the alleged torture supported by its own evidence. It is not sufficient for the state to offer general statements that laws exist to address the alleged infringements. There must be explicit responses to the facts alleged, supported by documentary evidence. Finally, in the absence of a satisfactory response, the presumption will be that the author’s allegations are true.
Here, we return to the use of probatio diabolica by the HRC in the Maya case against Nepal, which prompted this chapter’s exploration of evidentiary burdens by the HRC in the context of torture. The author in Maya, as well as the author in the subsequent case of Nyaya v. Nepal, submitted detailed witness statements, medical records and legal documents recounting failed attempts to get domestic justice following instances of gender-based violence amounting to torture.Footnote 84 Both women were arrested, raped and punished using various forms of gender-based violence due to their suspected association with Maoists.Footnote 85 A further dimension of vulnerability in Nyaya lies in the fact that the author was an indigenous fourteen-year-old girl-child at the time of the incidents recounted in her communication.Footnote 86 The failure of the domestic justice system to provide a viable means of redress, coupled with cascading breaches of the ICCPR resulting from Nyaya’s initial detention, presented a complete failure by Nepal to comply with its international obligations. While Nepal extensively engaged with the proceedings, it responded that it had no records of the authors being detained, which is where the litany of ICCPR breaches began.Footnote 87 Rather than defend itself against the allegations specifically, Nepal instead demanded further proof of the alleged breaches from the victim. In assessing the capability of the parties to meet their burdens of proof, the HRC foreclosed the State’s attempts to deprive the author of justice on the basis that the State claimed to have ‘no record of the authors’ arrest’.Footnote 88
The HRC’s response in framing the State’s request as a demand that the complainant provide a probatio diabolica seems to solidify a complete shift of the burden of proof to the State. The complete shift requires the state to go much further to defend itself against claims by particularly vulnerable victims when the starting point is arbitrary arrest or detention.Footnote 89 In summary, in the confrontation between evidence that has been corroborated, sometimes by multiple sources, and the state’s failure to respond directly to the factual claims, the HRC will presume that the state has breached its international obligation to prohibit torture or CIDT.
7.5 Final Reflections
In the cases examined above, the HRC appears to have developed an increasingly consistent practice of overcoming information asymmetries, by applying a presumption in favour of the author when the state fails to provide specific, exculpatory evidence negating claims of torture. To do so, the HRC: (1) looks for facts that are corroborated by some level of evidence; and (2) applies a rebuttable presumption that the author’s alleged facts are true; unless (3) the state offers evidence in direct response to the specific allegations of torture or CIDT.
This leaves the question as to what types of evidence must the author present to corroborate the alleged facts. Due to the process and format of final views, it is not always clear what range of evidence had been offered to corroborate the allegations of torture. In some cases, the summary provided suggests the evidence was limited to a detailed account by the author. In other cases, there was not only expansive personal detail, but also extensive supplementary (and sometimes extraneous) evidence provided to corroborate the author’s claims, such as reports by UN Special Procedures or international organisations such as the ICRC or Amnesty International,Footnote 90 medical reports or court documents that speak directly to the indicia of torture.Footnote 91 This chapter’s presentation of HRC’s final views permits only a broad understanding of the range of evidence that might be presented to substantiate torture before the UN treaty bodies. The presumption that the state must overcome the author’s evidence, on the other hand, seems to demand specific documentary evidence that is only available to the state. Both the broad and the specific evidentiary burdens increase understanding about how the HRC assesses alleged violations of the prohibition of torture.
This chapter aimed to examine whether the HRC is developing a consistent practice of overcoming information asymmetries in torture cases where the complaining author benefits from a presumption against the state due to the inaccessibility of evidence held by the state. From the analysis presented above, it is clear that cases raising allegations of forced confessions result in an automatic shifting of the full burden of proof to the state to disprove the claim. This stems from the long-standing view that confessions resulting from torture also interfere with the delivery of justice and an individual’s fair trial rights. In comparison, cases where torture is used to punish alleged criminals, including members of political opposition groups or alleged terrorists, see a rebuttable presumption applied when there is evidence corroborating the author’s allegations of torture. This presumption hinges on the extent to which the state participates in the proceedings. In either situation, if the claim is raised by an individual with distinctive vulnerabilities, there is a presumption that demands that the state bear the full burden of rebutting the facts alleged with specific, documentary evidence.
Ultimately, in all of these cases, where an author provides corroborated evidence of torture while detained by the state, there is ample practice to confirm that ‘the burden of proof to rebut the author’s evidence clearly lies with the State party’.Footnote 92 This not only demands that the state engage with the individual communications process, but that it takes care to provide exculpatory evidence that correlates expressly to the allegations made by the complaining author.
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