the circumstances under which the statement was taken, and to determine whether the evidence can be admitted. This procedure ensures that an accused person can testify about the admissibility of the evidence without the risk of self-incrimination from cross-examination on matters which could influence a finding of guilt. People’s Republic of China: evidence can be challenged throughout the process, including during the trial The Chinese Criminal Procedure Law (amended in 2012) requires the exclusion of torture evidence at every stage of a criminal case, including investigation, prosecution, pre-trial and trial, expressly stating that evidence obtained through torture cannot be relied on in “prosecution opinions, prosecution decisions or judgments” (Article 54). Under the 2017 Exclusionary Rules (Article 29), evidence can be challenged during the trial but the individual making the challenge must give an explanation as to why they did not challenge it at an earlier opportunity. Vietnam: a separate investigation examines the torture evidence The Criminal Procedure Code of Vietnam (2015), Article 174, provides for a separate investigative process to decide whether torture evidence should be excluded. In such a case, the court or prosecutor has to suspend the trial and order a re-examination of the evidence allegedly obtained by torture. EXAMPLES OF EXCLUSION PROCEEDINGS AND PROCESSES  States have developed, in accordance with their laws and judicial practices, various processes to exclude evidence obtained by torture or ill-treatment. Some States adopt a two-stage process: an initial stage of triggering an exclusion procedure, either requiring a credible complaint of torture or ill-treatment, or initiated by the judge; and second, a stage of establishing whether the material at issue was obtained by torture or ill-treatment. In common law countries using the jury system, this process will take place before the trial starts, and in the absence of the jury. Where a confession has been excluded from proceedings on the basis of the prohibition on the reliance on torture evidence, it does not necessarily mean that a defendant will be acquitted if there is other reliable evidence. It is rather an assessment as to whether the specific evidence or evidence arrived at as a result of that earlier evidence (derivate evidence, see below) should not be admitted during the hearing. It can often be difficult for a defendant in custody to make such an allegation, as they may fear reprisals, may not know the law, may not have knowledge of the circumstances in which statements were obtained, or the identity of those who provided the statements. Judges can mitigate these difficulties by ensuring that: • Defendants are able to obtain medical or other evidence that could help to corroborate a complaint of torture or ill-treatment. • All investigations are undertaken in accordance with the Istanbul Protocol. • All evidence of torture and/or ill-treatment is handed over to the defence to be able to establish a plausible complaint. TOOL: Non-admission of evidence obtained by torture and ill-treatment 9/15