49
iii) abolish and criminalise secret detention: ‘[a]ny
evidence obtained from detainees in unofficial places of
detention and not confirmed by them during subsequent
interviews at official locations ought to be inadmissible
in court’;262
iv) introduce legislation which prevents confessions
from being the sole basis upon which a guilty
verdict may be secured and exclude from
proceedings confessions made to police and
other non-judicial officers, or taken without the
presence of the detainee’s lawyer,263 for
example, the Special Rapporteur encourages
that:
‘If doubts arise about the voluntariness of a
person’s statements, as when no information
about the circumstances of the statement is
available or when pursuant to arbitrary, secret or
incommunicado detention, the statement should
be excluded regardless of direct evidence or
knowledge of abuse’;264
v)
exclude confession evidence stemming from
interrogations that was not voice or video
recorded, and prohibit the use of hooding or
blindfolding in interrogations;265
‘The study found that, when detention safeguards are
applied in practice, this has the highest correlation with
the reduction of torture […] Among all measures,
abstaining from unofficial detention and the
implementation of safeguards in the first hours and
days after arrest are the most important means for
preventing torture […] The study also highlights the
positive impact of reducing reliance on confession
evidence in criminal proceedings: ‘When police
investigators make use of alternative forms of evidence,
and the judicial process insists they do, the motive for,
and risk of, torture decline’’.267
There is also emerging evidence of a slowly
developing state practice in several of the
recommended areas, including the elimination of
confessions as a sole source to secure a conviction
(discussed above); the recording of interviews;268 and
the right to information on rights, including the right
to silence.269 At a regional level, too, there are
developments linking the admissibility of confessions
with the protection of procedural safeguards for
suspects. For example:
i)
In Europe, domestic criminal procedure laws
have been changing to exclude reliance on
evidence obtained in the absence of a lawyer,
pursuant to the decision of the European Court
of Human Rights in Salduz v Turkey.270 In Salduz,
the European Court of Human Rights
established the general rule that access to a
lawyer should be afforded to a suspect from the
first interrogation by police. Failure to abide by
this requirement would render as unfair any trial
in which incriminating statements made in the
absence of a lawyer are used for a conviction.
ii)
The Principles and Guidelines on the Right to a
Fair Trial and Legal Assistance in Africa state
that any confession or admission made during
incommunicado detention should be considered
as having been obtained by coercion and,
accordingly, must be excluded from evidence.271
vi) ensure that all accused persons are informed of
the right against self-incrimination;266 and
vii) introduce a clear procedure to test a confession
for signs of torture.
There is a growing recognition that some of the most
important torture prevention mechanisms are the
safeguards that should be applied in the first hours
and days after a person is taken into custody. This
was a key conclusion of a major independent study
commissioned by the Association for the Prevention
of Torture and undertaken by Oxford Brookes
University to assess the impact of torture prevention
measures undertaken over a thirty-year period:
226
Nowak and McArthur, The United Nations Convention Against Torture, pp. 534-535, 572.
227
UN ONHCR, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, Juan Ernesto Mendez, 5 August 2016,
A/71/298, para 99.
228
‘Confess and be done with it: Almost everyone accused of a crime in Japan signs a confession, guilty or not’, Economist, 8 February 2007.
229
Hanna Kozlowska, ‘Japan’s notoriously ruthless criminal justice system is getting a face lift’, Quartz, 26 May 2016.
230
UN ONHCR, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment of punishment, Juan Ernesto Mendez, para 11.
231
Criminal Procedure Code (2015), Article 98.
232
Criminal Procedure Law (2012), Article 53: ‘a defendant cannot be found guilty and sentenced to criminal punishments if there is no evidence other than his/her own statement’.
233
Gunes v Turkey, App no. 28490/95 (ECtHR, 19 June 2003).
234
Kitab Undang-undang Hukum Acara Pidana (KUHAP) (1981), Article 189(4).
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents