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Tainted by Torture: Examining the Use of Torture Evidence | 2018
‘[T]o-date, no conviction has been quashed,
dismissed or revised on the grounds that it has
been delivered based on forced confessions under
torture. There are probably dozens, if not
hundreds of prisoners serving out their sentence
delivered before the revolution based on forced
confessions’.192
iii) Vietnam has not recognised the competence of
the UN Committee Against Torture to carry out
confidential inquiries, and in 2015 refused to
allow the Committee to undertake an inquiry.193
However, a number of NGOs have reported on
the routine use of torture in places of detention
and the failure of the legal regime to exclude
reliance on ‘torture evidence’.194
In two of the countries examined (Mexico and
Kenya), new anti-torture legislation with clear
exclusionary regimes has been enacted, at least in
part, in response to concerns about the torture of
suspects. With respect to Mexico, for example, the
UN Committee Against Torture reported in 2012:
‘[w]hile taking note of constitutional guarantees relating to the
inadmissibility of evidence obtained in a manner that violates
fundamental rights, the Committee regrets that some courts
continue to accept confessions that have apparently been
obtained under duress or through torture’.195 It is too early
to tell what impact Mexico’s anti-torture legislation
will have. However, it is disappointing that official
data is not being collected to measure this and we are
not aware of any data collection by civil society.
There are also reports that, in practice, confessions
resulting from torture are being used routinely in
countries with express and absolute exclusionary
regimes which, on paper at least, comply with
international standards. For example, a 2015 report
by Amnesty International found that, despite a range
of new regulations and procedural rules implemented
in China, security officials in some areas ‘still relied
overwhelmingly on extracting confessions through torture to
‘break’ cases’.196
IV.2 Justice sector professionals
High-tech medical equipment is of little use if no one
has been told that the hospital has acquired it or if
there are no trained doctors and nurses to operate it.
The same applies with legal protections like the
exclusionary rule. New legislation can be a relatively
cheap and easy way for countries to respond to
demands for action to address human rights abuses,
whether from local voters, civil society or
international bodies. However, all too often, this
legislation fails because justice professionals aren’t
aware of it; are otherwise unwilling or unable to apply
the law; or, indeed, because there are insufficient
defence lawyers to argue for the legislation to be
applied in individual cases.
In Tunisia, legislation was introduced in 2011 to
prevent reliance on confessions obtained by
torture,197 but since the new provision was
introduced, no judge has explicitly made use of the
provision to exclude evidence obtained by torture. In
his country visit to Tunisia, the former UN Special
Rapporteur on torture, Juan Mendez, noted that ‘in
practice, confessions obtained under torture are not expressly
excluded as evidence in court’.198 He also expressed
concern at the lack of instruction to the courts with
regard to implementing the exclusionary rule as well
as ordering an immediate, impartial and effective
investigation where evidence may have been obtained
by torture.199
If legislation is not resulting in changes to practice, it
is important to try to understand the barriers to
effective implementation. However, this can be
challenging and requires in-depth qualitative
engagement with often hard-to-reach state actors
such as judges, prosecutors and lawyers.200 This is
beyond the scope of the current report and we are
unaware of any qualitative research being undertaken,
such as through qualitative interviews of lawyers,
prosecutors and judges. However, the following
factors are likely to be relevant in this context.
IV.2.1. Training
One key question is whether judges, prosecutors,
police and lawyers have received training on the
relevant domestic laws and international standards.
The need for appropriate training is frequently
recommended by human rights monitoring bodies.
In 2008, for example, having commented on the
routine use of torture to extract confessions in
Indonesia, the Special Rapporteur on Torture
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