National legislative frameworks should define clear procedures to be taken by courts if evidence appears to have been obtained through torture or ill-treatment and establish mechanisms by which evidence may be declared inadmissible (c.f. Report of the Special Rapporteur on torture, Juan E. Méndez (April 2014) [24]). Under Article 173 of the French Code of Criminal Procedure, the investigating judge or a prosecutor can initiate a procedure to exclude evidence if they suspect it was obtained by torture, upon which an evidence validity challenge is referred to the Investigation Chamber of the Court of Appeal (CTI Tool 8/2020, pg. 6). National frameworks should also include provisions on the handling of evidence itself. For example, under Article 141(5) of the Swiss Criminal Procedure Code, any records relating to inadmissible evidence “shall be removed from the case documents, held in safekeeping until a final judgment has concluded the proceedings, and then destroyed”. Additionally, national legislation must ensure the mandatory exclusion of torture-tainted evidence, prohibiting the exercise of discretion by national authorities where torture or ill-treatment is alleged (UN Committee against Torture. Report on Mexico (25 May 2003) [220(f)]; Report of the Special Rapporteur on torture, Juan E. Méndez (April 2014) [82(d)]). In Malawi, under Section 176 of the Criminal Procedure and Evidence Act, forced confessions are admissible if the judge “is convinced beyond reasonable doubt that the confession is materially true” (Initial Report submitted by Malawi to the UN Committee against Torture (March 2020) [69]). National legislation can, in theory, be reinforced by judicial directives that are binding on judicial authorities. In 2003 and 2004, the Plenum of the Supreme Court of Uzbekistan issued two directives that explicitly prohibit the use of torture to extract confessions and declare torture-tainted evidence inadmissible in court proceedings (Amnesty International. Secrets and Lies: Forced Confessions under Torture in Uzbekistan 1 (2015) pg. 41). The judiciary The courts are guarantors of the exclusionary rule, fair trial rights and due process, as well as having an “essential role in overseeing the main components of accountability” (Interim report of the Special Rapporteur on torture, Nils Melzer (July 2021) [28, 39]). The UN Committee against Torture has held that Article 15, UNCAT, implies a positive obligation for State parties to ascertain whether or not statements admitted as evidence in any proceedings for which it has jurisdiction have been made as a result of torture (Communication No. 193/2001: P.E v France (December 2002) [6.3]). In recent communications, the Committee has found a violation of Article 15 where State parties have failed to verify the substance of a claim that a confession had been obtained under torture and used those confessions in judicial proceedings against the defendant (see, e.g., Communication No. 549/2013: Abdulrahman Kabura v Burundi (January 2017) [7.7]). This includes where courts have failed to, inter alia, “give serious consideration to…allegations of torture when convicting [defendants] on the basis of…confessions” (UN Committee against Torture. Communication No. 477/2011: Ali Aarrass v Morocco (June 2014) [10.8-10.9]). Courts should enquire whether there is a “real risk” that the evidence has been obtained by torture or ill-treatment and, if so, the evidence should not be admitted (Report of the Special Rapporteur on torture, Juan E. Méndez (April 2014) [82(f)]). Courts must have an independent procedure to ascertain whether a confession was made voluntarily (UN Committee against Torture. Report on Mexico (May 2003) [202]). They should have the power to exclude torture-tainted evidence, irrespective of any separate criminal investigation into allegations of torture (Eliminating Incentives Report (2020) pg. 36). Courts should not admit extrajudicial confessions that are not corroborated by other evidence or that have been recanted (Eliminating Incentives Report (2020) pg. 37; Report of the Special Rapporteur on torture, Juan E. Méndez (April 2014) [65]). 25