South Africa: showing reasonable grounds to suspect the use of torture The 1996 Constitution requires the exclusion of any “evidence obtained in a manner that violates any right in the Bill of Rights”. Article 12(1) of the Bill of Rights states that “everyone has the right to freedom and security of the person, which includes the right … not to be tortured in any way; and …not to be treated or punished in a cruel, inhuman or degrading way”. In practice, the accused or the defence need to firstly raise the possibility that the evidence being introduced against them has been obtained by torture. The Court then assesses whether there are reasonable grounds to suspect the use of torture and, if it suspects torture has been used, this must be investigated to determine whether or not the evidence can be admitted. This procedure ensures the accused can testify about the admissibility of the impugned evidence without exposing themselves to cross-examination as to their guilt or innocence. NON-ADMISSION OF DERIVATIVE EVIDENCE  Confessions or statements procured through torture or ill-treatment may lead investigators – directly or indirectly – to other evidence (such as, for example, the location of physical evidence, the crime scene, other witnesses). To guard against the risk that allowing ‘derivative’ evidence may incentivise the use of torture, ill-treatment or other forms of coercion against a suspect, a number of States as well as international and regional bodies and courts have excluded ‘derivative evidence’ from proceedings. Some States exclude the evidence in its entirety; others apply a balancing test, as to the probity of the evidence weighed against the gravity of the harm or impropriety inflicted on the individual. “ [T]he absolute character of the exclusionary rule is reflected in the prohibition of granting probative value not only to the evidence obtained directly under duress, but also to evidence deriving from the said act.” Inter-American Court of Human Rights, Teodoro Cabrera García and Rodolfo Montiel Flores v. Mexico, Case No. 12, 449 (26 November 2010), para. 167 Brazil: law prohibits evidence derived from ‘illicit evidence’ Article 157 of the Brazilian Code of Criminal Procedure (1941) provides that all illicit evidence and evidence derived from it must not be admitted in the legal process. Illicit evidence is understood to be evidence obtained by violation of the Constitution or other laws. The prohibition against torture and ill-treatment is included in the Brazilian Constitution of 1988 at Article 5(III)) as well as a provision that “evidence obtained through unlawful means is unacceptable in any proceedings” (Article 5(LVI)). Thailand: law prohibits all evidence derived from unlawful means The Thai Criminal Procedure Code of 1937 states: “In a case where it appears to the Court that any evidence which arose lawfully was derived from unlawful means or by relying on information which arose or was obtained unlawfully, such evidence shall be inadmissible…”. TOOL: Non-admission of evidence obtained by torture and ill-treatment 11/15