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.