inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture)”.105 The court may, of its own volition (without the defendant alleging torture or mistreatment), also require the prosecution to comply with the procedure to prove to the court, beyond reasonable doubt, that the confession was not obtained by “oppression” in order to admit a confession.106 The defendant is not obliged to give evidence or call witnesses in such cases. 48. In Central Europe there is a clear division between the procedures for excluding evidence and criminal investigations into allegations of torture.107 Judges can exclude evidence at trial, even if there is no final factual finding in separate criminal proceedings that a defendant or witness has been tortured. If a separate criminal investigation of alleged torture is ongoing, or if the defendant claims for the first time during the trial that their testimony was obtained unlawfully, evidence can still be excluded at trial by the judge without having to wait for the outcome of the separate criminal procedure. Furthermore, the judge may exclude evidence – even if the defendant does not claim that they were ill-treated – ex officio when, on the basis of the case file, the judge concludes that testimony was obtained in an unlawful manner.108 In addition, ill-treatment can be reported by anybody (i.e., not just the alleged victim of the ill-treatment),109 and criminal justice actors have an explicit obligation to report and initiate a criminal investigation if they become aware of a criminal offence. In order to establish to what extent those legal provisions are implemented in practice, additional research and statistical data would be needed. 49. The exclusionary rule cannot function properly if judicial powers to exclude evidence at trial are not clearly defined. The ability of judges to exclude evidence without relying on the outcome of separate criminal proceedings also means that suspects, accused persons or defendants are not forced to wait months, or even years, for the outcome of separate investigations, during which time they may remain in custody, and which is likely to deter them from reporting torture and other ill-treatment. In a South-Eastern European OSCE participating State, the procedure to exclude torture evidence follows the standard procedures for excluding illegally obtained evidence, which involves an evidentiary hearing with strict time limits.110 Judges also have the power to exclude evidence ex officio if they believe it was obtained illegally.111 105 106 107 108 109 110 111 Ibid. Section 76(8). Ibid. Section 76(3). Questionnaire response from Hungarian Helsinki Committee (2019). Ibid. citing leading court decision BH2019. 295. Ibid. citing Act XC of 2017 on the Code of Criminal Procedure, Article 376(1). Questionnaire response Macedonian Young Lawyers Association (North Macedonia) (2019). Ibid. 35