A/HRC/19/61/Add.2 defendants’ claims that confessions had been extracted under duress, 8 is an example of the highest judicial body’s failure to act on allegations of torture and ill-treatment. The recent decision of the Supreme Court of 9 December 2011, which upheld the lower instance courts’ ruling on the acquittal of four policemen prosecuted for torturing the victim, even though there was sound medical evidence in the record of savage acts of torture, is yet another discouraging example of a failed administration of justice. 4. Burden of proof and independent medical examinations 50. The Special Rapporteur was not able to obtain information on any instance when judges and prosecutors are known to have ordered medical examinations at their own initiative in response to allegations or signs of abuse. International law and precedent clearly puts the burden on the State and its agents to initiate investigations ex officio whenever there is any suspicion of torture.9 51. Needless to say, it is hard to prove torture when medical examinations by independent and impartial forensic experts are not promptly conducted. Even in those cases, the defendants should not have to bear the burden of proof of coercion to exclude self-incriminating statements, especially if they recant at the first opportunity they have to talk to a judge. Since independent medical examinations must be authorized by the supervising authority (such as the investigators, the prosecutors or the penitentiary authorities), that authority has ample opportunity to delay authorization so that any injuries deriving from torture have healed by the time an examination is conducted. The evidence suggests that detainees are often held for longer periods until the signs of torture have disappeared, at which stage they are transferred to a pretrial detention facility. As a result, a forensic examination might identify bruises but fail to establish the time of mistreatment. At trial, courts tend not to take into account conclusions other than the ones provided by official State-appointed forensic experts. In addition, State forensic medical examinations take priority over the opinions provided by independent experts proposed by defence counsel. The Special Rapporteur was informed that forensic doctors in Kyrgyzstan do not have adequate training on documenting torture and other forms of ill-treatment and, because of the existing institutional set-up, lack independence from the authorities in whose custody the alleged ill-treatment took place. Their offices and laboratories are heavily under-equipped owing to the general budgetary restraints in the country. 52. Judges are widely seen as formally present at the criminal process, but mainly to rubberstamp decisions of investigating officers or prosecutors rather than take a genuine interest in following up on torture allegations. The overwhelming majority of interviewees stated that neither at the first hearing to sanction pretrial detention nor during the trial itself had any judge asked about the treatment during the initial period of custody. Moreover, if victims made allegations of torture or ill-treatment, they were routinely silenced. The Special Rapporteur was unable to obtain information on cases where evidence had been excluded because it was found to have been obtained under torture. 10 A worrying feature of the system repeatedly described to the Special Rapporteur is that, since crimes need to be solved, previous convicts are often accused of having committed them and their cases are 8 9 10 See ”UN human rights chief urges judges in Kyrgyzstan to respect defendants’ civil rights”, OHCHR press release, 22 December 2011. Available from www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=11739&LangID=E. See European Court of Human Rights, Kurt v Turkey, 25 May 1998. The Government provided the Special Rapporteur with a decision of a local court (in Kyrgyz language) indicating that the defendant was acquitted as the confession was declared to have been obtained illegally. A single case, however, does not change the Special Rapporteur’s view that, in general, the exclusionary rule is not applied. 13