C O M P A R AT I V E S T U D Y “full proof.”62 The testimony of two witnesses was rarely available; thus, continental law sought a confession as a different means of “full proof.”63 The confession became the “queen” of evidence (lat. regina probationem). But, to gain confession, judges could order torture. The torture and confession were also used because, from a certain Christian perspective, they had a cathartic function and were supposed to redeem the culprit. If the inquisitor believed that the witness lied or contradicted himself, the witness could be tortured as well; this option became compulsory in proceedings for the crime of treason or heresy, even when the witnesses were not false or recalcitrant. However, judges were forbidden to order torture unless there was “semiplena probatio” or “half-full proof.”64 Whitman explains that to determine whether there was “half-full proof,” judges were to follow the rigidly specified rules for weighing the evidence. The technical term for such evidence was “indicium” or “proof.” So, torture was used as the last resort, once all other means to get to the truth had been used. It could be repeated two or three times, only not on the same day. Prosecution record was taken, containing: the judge’s questions, the defendant’s answers, the screaming, the moaning, the length and the time of the torture, its quality and the scale of it, the reasons of its application, the person’s conditions before and after the torture; the purpose of this was to justify the legitimacy of the decision to apply torture, taking into consideration the type of the crime and the gravity of the indications. In addition, there was always a doctor to check the condition of the accused and to offer medical assistance as needed. Also, a practice was established to check the confession given under torture, in order to be considered as valid, this examination had to be performed in absence of any instruments of torture and it had to be done after a certain period passed since the statement had been issued. The accused, subjected to repeated torture sessions and therefore weakened in body and in spirit, was forced to choose between confession, thus ending his suffering, and resistance, which would prolong his agony. Once the accused would confess, the proceeding would end, to be followed by, obviously, a conviction. If the accused would resist the torments, a possible outcome, although rare, could be his acquittal. It has to be highlighted that the suspect who had resisted the torture could be detained for a longer period of time, so that the judge could look for new evidence. Moreover, the court could reach a special verdict “absolving” the defendant from the court (lat. absolutio ab instantia).65 The accused Whitman, p. 115. See also Shapiro, Doubt, p. 3. Shapiro, Doubt, p. 3. 64 Persons of high social standing (members of the nobility and the like) could not be tortured at all. See Whitman, p. 115, referring to Schmoeckel, pp. 212-213, 219-228, 286-287. 65 Sijerčić-Čolić, H., Krivično procesno pravo. Book I. Krivičnoprocesni subjekti i krivičnoprocesne radnje. Third revised and updated edition, Law fakulty Univerzity of Sarajevu, Sarajevo, 2012, p. 66. 62 63 25