40 Tainted by Torture: Examining the Use of Torture Evidence | 2018 IV.2.3 Access to a lawyer Access to a lawyer, paid for by the state where a suspect cannot afford it, is an internationallyrecognised human right. Despite this, ‘[r]egrettably, many countries still lack the necessary resources and capacity to provide legal aid for suspects, those charged with a criminal offence, prisoners, victims and witnesses’.212 In practice, without legal assistance it is unlikely that most defendants would be able to apply to a court to have evidence against them excluded from consideration. Even where indigent defendants are provided with legal aid lawyers, it is common for the assistance that is provided to be limited, especially before the start of the trial.213 This reduces the ability of a lawyer to identify and challenge ‘torture evidence’, for example, because they cannot build the rapport needed for the client to disclose the torture they have suffered; and cannot gather evidence of torture by, for example, requesting medical examinations. IV.3 Practical barriers IV.3.1 Protecting suspects Imagine that you are a defendant in detention at the start of your trial. You have been tortured by investigators when you were arrested. Would you have the confidence to report the fact that you had been tortured whilst you still remain in custody? Or would you be too scared of the reprisals you might suffer? The absence of a culture of protection in many countries is a major challenge which impedes victims from reporting torture. In Tunisia, for example, the UN Committee Against Torture expressed concern ‘about reports of reprisals committed by the police against the families and counsel of victims with the aim of preventing them from submitting complaints of torture’.214 Whilst countries are increasingly adopting victim and witness protection legislation, only a handful of the countries surveyed have robust procedures in place. That being said, there is a tendency to recognise the need to strengthen protection mechanisms in order to improve justice delivery. Of those countries which do have protection regimes, these are not necessarily geared towards cases involving allegations made by detainees against officials of the state, which require special care in how they are instituted and overseen, and need to be sufficiently independent from the bodies said to be responsible for the torture. The majority of protection schemes are run by the police or prosecution services, and are available upon the initiative of the prosecution services to provide special services for witnesses in particular cases. Access to protection can be contingent on a prosecutor’s decision to pursue a case. In addition, few protection mechanisms operate inside prisons and detention centres. This is the case with Indonesia’s victim protection agency (Lembaga Perlindungan Saksi dan Korban, LPSK), which is not able to protect those held in custody. Generally, detainees who are tortured to solicit confessions will not be able to benefit from protection schemes until they are released from detention. This can result in delays in the reporting of torture allegations which precludes the practical application of the exclusionary rule. IV.3.2 Obtaining evidence of torture Even if a detainee has the courage to report torture and has access to a lawyer who will argue for the exclusion of any resulting evidence, in order for this argument to succeed the detainee will need to provide some evidence that they have been tortured. This is not as simple as it may seem, and practical barriers to obtaining evidence can frustrate the effectiveness of an exclusionary regime. For instance, a detainee may not have the name, badge number or unit of the person who carried out the ill-treatment – sometimes interrogators use false names when carrying out interrogations. Where a detainee has been interrogated over several weeks or months, the details of who meted out what treatment may blur together, as will the dates, time of day and precise locations. Delay in access to a medical examination may result in any immediate physical signs of torture having faded. More robust forensic testing and psychological reporting may not be accessible to the