16 Tainted by Torture: Examining the Use of Torture Evidence | 2018 i) express exclusionary regimes: in which the law contains an express prohibition on the use of evidence obtained by torture; and ii) implied exclusionary regimes: in which there is no express prohibition on the use of evidence obtained by torture, but there is a bar on the use of such evidence as a result of the application of other, more general, standards relating to the admissibility of evidence. In the countries with express exclusionary regimes, the prohibition takes a variety of legal forms, for example: i) Japan’s constitution expressly confessions obtained by torture;43 prohibits ii) many countries have criminal procedure codes which contain rules on the admissibility of evidence obtained by torture, as in Germany44 and Tunisia;45 iii) exclusionary rules are found in general legislation on the admissibility of evidence, as in Commonwealth Australia46 or specific antitorture legislation, as in Mexico;47 and iv) in some countries the prohibition derives from binding decisions of apex courts, as in the United Kingdom.48 Of the countries examined which have implied prohibitions, these generally derive from the combination of one law (which makes the use of torture illegal) and another law (which prohibits the use of illegally obtained evidence). For example, in Spain, the Constitution defines the right not to be II.2 tortured as a fundamental right.49 Legislation then provides that ‘[e]vidence directly or indirectly obtained in infringement of fundamental rights shall not have legal effect’.50 The exception to this type of implied regime in the countries examined is the United States of America where judges may rely on a range of rights to exclude evidence obtained by torture, none of which expressly mentions torture, such as: (i) the 5th Amendment right not to incriminate oneself;51 (ii) the 5th and 14th Amendment guarantees of due process;52 and (iii) the common law provision that confessions must be given voluntarily.53 II.1.3 Indonesia – no exclusionary regime Indonesia is the one country examined which has no prohibition on the reliance on ‘torture evidence’ (even in relation to statements or confessions obtained directly from the defendant). Although torture is implicitly prohibited by Indonesian law,54 evidence obtained by torture is neither expressly nor implicitly excluded. Indonesia has been widely criticised for its reliance on ‘torture evidence’ in criminal proceedings. For example, in 2009, the Special Rapporteur on Torture observed: ‘in particular in urban areas, torture and ill-treatment is used routinely to extract confessions’ and recommended that ‘[c]onfessions made by persons in custody without the presence of a lawyer and which are not confirmed before a judge shall not be admissible as evidence against the persons who made the confession’.55 An absolute prohibition on ‘torture evidence’ II.2.1 International standards Given that the rule on the inadmissibility of ‘torture evidence’ stems from the absolute prohibition on torture, the rule allows for no balancing.56 This is because it is not only a procedural violation to admit ‘torture evidence’ potentially affecting the fairness of the trial; it strikes at the heart of the absolute prohibition on torture, and to admit the evidence would undermine not only the purpose of deterrence, but also ignores the impact such admission would have on the justice system as a whole. Considerations such as the nature or seriousness of the crime for which an individual is accused (which might be relevant in cases involving lessor violations involving unlawfully obtained evidence) should have no bearing on whether ‘torture evidence’ can be admitted in proceedings against a defendant. Neither should consideration of the admissibility of ‘torture evidence’ be part of the common exercise of courts assessing whether admitting a particular piece of