39 recommended, inter alia, that ‘the government should adopt an anti torture action plan which implements awareness raising programmes and training for all stakeholders’.201 In 2011, the UN Committee Against Torture requested from Indonesia ‘detailed information in regards to the human rights instruction and training provided for: (i) law enforcement […]; and (ii) judges and prosecutor’.202 Similarly, in 2012 the Committee recommended that Mexico ‘[c]ontinue to implement training programmes on the new criminal justice system for persons involved in the administration of justice’.203 IV.2.2 Institutional disincentives However, knowledge of the legal regime on its own may not be sufficient to change practice. As discussed above, even in countries with absolute and express exclusionary regimes, judges are usually left with some discretion about whether to exclude evidence, for example in their assessment of whether it has been ‘established’ to the appropriate standard that evidence was obtained as a result of torture. In Tunisia, where there is an express law prohibiting confessions obtained by torture, Article 152 of the Criminal Code of Procedure nevertheless states that validity and admissibility of confessions, ‘like for any other piece of evidence, is left to the free discretion of the presiding judge’.204 Whilst judicial discretion is needed to facilitate case-specific determinations, it also provides the space within which practices or attitudes that frustrate the underlying aims of the law can flourish. For example, in its research into how Brazilian judges respond to allegations of torture which arise in custody hearings, the NGO Conectas Human Rights, reported: ‘[Q]uestions about torture and mistreatment seem to depend on which judge is presiding over the custody hearing – which suggests a very wide margin of discretion, as if the combat and prevention of torture depends far more on the judge’s personal conviction than on a protocol for the institutional conduct of judges’.205 A wide range of factors could affect how a judge approaches the application of the exclusionary rule. For example, the weight of work might simply make it impossible to process cases if too many investigations into allegations of torture are started.206 In the context of particular cases, the risk of an adverse public, political or diplomatic response to a prosecution collapsing as a result of evidence being excluded can place considerable pressure on judges.207 In some countries, judges have been assaulted or killed for challenging grave human rights abuses and, more commonly, their prospects of promotion may be undermined. For example, the Due Process of the Law Foundation has reported: ‘[I]t is very important to maintain a strong position in this web of relations in a profession in which merit and performance are not always the main criteria for achieving seniority. A judge or prosecutor who is not ‘well positioned’ and makes a decision that runs counter to expectations runs the risk of bureaucratic ‘punishment’ imposed through informal rules and practices that he or she would be hard pressed to challenge’.208 Of course it is not only judges that exercise discretion in this area. As discussed earlier in this report, it will typically be the defendant (or their lawyer) who triggers the process for challenging the admission of evidence in criminal cases. A defence lawyer may not be willing to challenge the admissibility of evidence that results from torture where, for example, they: don’t believe the court will exclude the evidence anyway; are concerned about their personal safety or that of their client; fear that it will be detrimental to their future work (for example, police officers would cease to refer cases to them);209 or do not believe they are being paid enough to justify the extra work involved.210 The approach to the admissibility of ‘torture evidence’ is also tied, more broadly, to how the criminal justice system operates. As discussed above, in some countries confessions are the main evidence presented to the courts in criminal cases, for example, because the police do not have the will or capacity to properly investigate the cases. Perhaps inevitably the behaviour of actors in the justice system develops in response to this. For example, a judge refusing to accept confession evidence in such a system would threaten the overall capacity of the system to convict suspects. It is in part for this reason that Juan Mendez, the former UN Special Rapporteur on Torture, proposed a universal investigative interviewing protocol as a mechanism for preventing torture.211