35
III.4 Evidence
In most of the countries examined, there are no
restrictions on the type of evidence that courts can
take into account when assessing whether evidence
was obtained by torture. The most commonly cited
types of evidence were medical reports, expert
reports or testimony, video and photographic
evidence, and witness statements. In cases where
criminal charges have been brought against the
perpetrators of torture, the outcome of the case
could also be admitted as evidence.
In a few of the countries considered, the desire to
comply with international best practice relating to the
documentation of torture could, in practice, make it
harder for courts to exclude ‘torture evidence’. For
instance, in Mexico, judicial practice treats the
Istanbul Protocol186 as the ideal test for proof of
torture, including for the exclusion of evidence.187
The Protocol largely focuses on medical
documentation in terms of the physical and
psychological signs and symptoms of torture.
However, as torture is a legal definition, it is usual for
medical experts to explain that signs and symptoms
are ‘consistent with’ torture; it is rare for them to
assert positively that a particular individual has or has
not been subjected to torture. This also takes into
account that, in torture cases, there will not always be
verifiable marks of injury. If a medical examination is
inconclusive, many judges hold that torture has not
occurred.188 Where there are different expert
opinions as to the signs and symptoms an individual
may exhibit, the burden of proof may in practice shift
to the defendant.
117
UN General Assembly, Convention against Torture, Article 12.
118
French Code of Criminal Procedure (2006), Article 173; Spanish Civil Procedure Act (2000), Article 287.
119
In China, the defendant or his counsel could file a written motion with the court ‘between the time that the bill of prosecution has been delivered and the time the trial commences’. 2010
Exclusionary Rules, Article 4; SPC Interpretation, Article 99; 2017 Exclusionary Rules, Article 23.
120
According to Article 264 of the Mexican Criminal Procedure Law, the defendant can make a motion for the exclusion of unlawful evidence at any stage of the proceedings
which will then trigger a hearing on the motion.
121
In Spain, although there is no right set out in legislation to challenge the lawfulness of evidence during the investigation phase, the jurisprudence makes it clear that an
application to exclude evidence obtained in a manifestly illegal way can be made to the investigating judge (see, José María Paz Rubio, La prueba en el proceso penal,
Cuaderno de Derecho Judicial, Consejero General del Poder Judicial, Madrid, 1992; Agustín Jorge Barreiro, La prueba ilícita en el proceso penal, en Recopilación de
Ponencias y Comunicaciones, Planes provinciales y territoriales de formación, vol. II, Consejero General del Poder Judicial, Madrid, 1993; Circular 1/1999 de la Fiscalía
General del Estado).
122
The Federal Rule of Criminal Procedure used to provide that ‘a party waives any […] defence, objection, or request not raised by the deadline the court sets […] or by any extension the court
provides’ (Rule 12(e)). It has now been replaced with Rule 12(c)(3): ‘if a party does not meet the deadline for making a motion […] the motion is untimely. But a court may consider the defence,
objection, or request if the party shows good cause’.
123
2017 Exclusionary Rules, Article 29.
124
Bangalore Principles of Judicial Conduct (2002), Principle 1; Reverón Trujillo v Venezuela, Inter-American Court June 30 (2009) (Preliminary Objection, Merits, Reparations, and
Costs) para. 146.
125
International Covenant on Civil and Political Rights, Article 14(3)(d); Guerra de la Espriella v Colombia, CCPR/C/98/D/1623/2007, UN Human Rights Committee (HRC), 11
May 2010, para 9.3; Hermi v Italy, App no. 18114/02 (ECtHR, 18 October 2006), paras 58-59.
126
International Covenant on Civil and Political Rights, Article 14(1); American Convention, Article 8(5); European Convention on Human Rights, Article 6(1); African Charter,
Article 7(1).
127
HRC, General Comment no. 32, para 10.
128
Cf. European Convention on Human Rights, Article 6(3)(c); UN General Assembly, United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 28
March 2013), A/RES/67/187.
129
Cf. Modarca v Moldova, App no. 14437/05 (ECtHR, 10 May 2007), paras 84-99.
130
Jasper v the United Kingdom, App no. 27052/95 (ECtHR, 16 February 2000), para 51; Foucher v France, App no. 22209/93 (ECtHR, 18 March 1997), para 34.
131
Cf. International Covenant on Civil and Political Rights, Article 14(3)(e); American Convention, Article 8(2)(f); European Convention on Human Rights, Article 6(3)(d).
132
Cf. International Covenant on Civil and Political Rights, Article 14(3)(f); American Convention, Article 8(2)(a); European Convention on Human Rights, Article 6(3)(e).
133
Salduz v Turkey, App no. 36391/02 (ECtHR, 27 November 2008), para 55.
134
Evidence Act (as amended by Act No.5 of 2003 and Act No. 7 of 2007), Section 25; High Court of Kenya, Republic Prosecutor v Elly Waga Omondi, Case No.24 of 2012, Ruling
in Trial within Trial, 11 May 2015.
135
Robert D. Nanima, ‘The Legal Status of Evidence obtained through Human Rights Violations in Uganda’, African Human Rights Law Journal, 19 (2016), pp. 1-34.
136
Prima facie is a Latin phrase which literally means ‘at first sight’, ‘on first appearance’ or ‘on the face of it’ and, in a legal context, means sufficient to establish a fact or raise a
presumption, unless disproved or rebutted at trial.
137
Ley General para Prevenir, Investigar y Sancionar la Tortura y Otros Tratos Crueles, Inhumanos o Degradantes (2017), Article 51.
138
Singhanart, ‘Admissibility of Evidence Obtained from Unlawful Means’, Judicial Training Institute, Office of the Judiciary (2012) p.8.
139
Ibid.
140
Criminal Case Entry No. 2040/2557 Samui Provincial Court (2014).
141
T. Charuvastra, ‘Koh Tao Murders: Court says DNA trumps other flaws in case’, Khao Sod English, 25 December 2015.
142
Ibid.
143
Criminal Procedure Code of Vietnam (2015), Article 174.
144
Sami Ozbil (App no. 2012/543), the Constitutional Court, 15 October 2014; Muslum Turfan (App no. 2013/5216), the Constitutional Court, 18 November 2015.
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