A/HRC/19/61/Add.2 written certificate, issued by the investigator, a prosecutor or the court and stating that the advocate is the attorney of record for the detainee’s case is required before the attorney is allowed to see his client. The Special Rapporteur is concerned about this recent amendment, which adds an unnecessary bureaucratic hurdle in the early hours of detention, when detainees have not yet appointed counsel of their own choosing; moreover, it creates an environment conducive to coercion. When used at that stage, it violates the principle of equality of arms established under the International Covenant on Civil and Political Rights (art. 14). 20. Although according to article 26, paragraph 4, of the new Constitution and article 81 of the Code of Criminal Procedure, evidence obtained in violation of the law should not be relied upon in court, article 81, part 4, of the Criminal Code does not explicitly mention evidence obtained through torture or other forms of ill-treatment, but simply lists the types of evidence that are inadmissible. Article 325 of the Criminal Code makes it a punishable offence for an investigator to obtain testimony during questioning through unlawful acts, and the Code of Criminal Procedure renders any confession given during the investigation procedure in the attorney’s absence inadmissible (article 81). The Special Rapporteur observes, however, that, in practice, there is no clear procedure in place prescribing the measures to be taken by courts should evidence appear to have been obtained through torture or ill-treatment. Furthermore, in practice, there appears to be no instruction to the courts with regard to implementing that rule or ordering an immediate, impartial and effective investigation if the rule is violated. 21. The Special Rapporteur recalls that international customary law and treaty law require States to ensure that any statement that is established to have been made as a result of torture is not to be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. 4 This exclusionary rule is fundamental for upholding the absolute and non-derogable nature of the prohibition of torture by providing a disincentive to use torture. 5 It is imperative to ensure the inadmissibility of any extrajudicial statement that is not freely and promptly ratified before a court of law, and a specific prohibition of the use of extrajudicial statements even as “inferences” or “presumptions”. 22. Articles 16 and 19 of the Law on Procedure and Conditions of the Detention of Persons Suspected or Accused of a Crime in Custody, and the Rules on Internal Regulations of Temporary Detention Facilities of the Ministry of the Interior (article 3.1) provide for the right of suspects and accused persons to receive visits and to correspond upon written permission of the investigator. Neither the Code of Criminal Procedure nor the Law on Procedure and Conditions of the Detention of Persons Suspected or Accused of a Crime in Custody include a provision on the right of suspects to a free telephone call with family members or relatives in accordance with Principle 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. 23. According to article 40, part 5, of the Code of Criminal Procedure, every time a suspect is placed in a temporary detention facility and also when this person, his/her counsel or his/her family makes a complaint regarding physical abuse inflicted by agents of inquiry or investigation, the suspect is to undergo a compulsory and documented medical certification ordered by the administration of the temporary detention facility. Similar legal provisions apply to an accused person (art. 42, part 7). By decision of a head of the detention facility or investigator, or by request of a suspect or accused person or his/her counsel, medical certification may be performed by staff of health-care institutions to 4 5 See the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 15. A/HRC/16/52, para. 52. 7