A/HRC/4/33/Add.2
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officials in the absence of defence counsel cannot be a basis for a judgement unless verified by
the suspect or the accused before the judge or the court“. Many of these safeguards have not
been introduced to the criminal justice system for the first time with the new Criminal Procedure
Code. Similar checks and balances aimed at protecting suspects and accused persons against
unlawful or arbitrary practices, existed also in the former Criminal Procedure Code No.1412 in
various forms. For instance, article 135 of the Law No. 1412 provided the right to access to a
defence counsel, assignment of a defence counsel by the State free of charge, and the presence of
a defence counsel at all stages of statement-taking and interrogation. Article 135/a ensured that
any statement should be made of free will, prohibited unlawful methods for taking statements
such as torture, ill-treatment and other methods preventing free will, and envisaged that
statements taken through prohibited methods cannot be regarded as evidence even with the
consent of the suspect.
630.
In view of the above, the rights of suspects and accused persons to defend themselves
were fully ensured before 1 June 2005. If a suspect or an accused person objected to the content
of any statement taken in the absence of his/her defence counsel, such a statement alone was not
considered sufficient for a conviction. As referred to above, judges have discretionary power to
assess the value of evidence submitted to the court and to consider all the evidence together
before rendering a judgement. In this respect, there has not been a protection gap in terms of
safeguards against torture or other degrading treatment or of guarantees to ensure that any
statement should be based on free will before the entry into force of the new Criminal Procedure
Code. Evidence obtained through torture has always been regarded as unlawful evidence, which
entailed criminal liability. Therefore, any statement taken before 1 June 2005 in the absence of a
defence counsel during a case that is pending as of 1 June 2005, can be renewed in the presence
of a defence counsel on various grounds. For instance, such a renewal can be requested on the
basis of the objection that the statement was not made out of free will or that it was extracted
under torture, ill treatment, pressure, force or other prohibited methods. Renewal can also be
ordered by the court if it is not convinced that the statement or confession was indeed made of
free will. This aspect is also given due consideration by the Court of Cassation. In addition,
provisions of the new Criminal Procedure Code apply to statements taken following the decision
of reversal. Given the fact that the first instance courts and Court of Cassation do have absolute
discretion over evidence of torture and ill-treatment, there is no need for a separate review of
such evidence by an independent body. On the other hand, if an allegation that a statement was
obtained by use of torture against a suspect or an accused before 1 June 2005 is submitted to the
relevant authorities, it would be investigated thoroughly.
631.
Recommendation (f) stated: Prosecutors and judges should diligently investigate all
allegations of torture made by detainees. In the case of prosecutors in the State Security
Courts, allegations should also be referred to the public prosecutor for criminal
investigation. The investigation of the allegations should be conducted by the prosecutor
himself/herself and the necessary staff should be provided for this purpose.
632.
According to information received from NGOs and other sources, prosecutors and
judges have so far not treated claims of torture or ill-treatment with the necessary diligence.
633.
The Government informed that public prosecutors in general initiate investigations
concerning allegations of torture and ill-treatment “ex officio” and conduct them personally in
accordance with a circular issued by the Minister of Justice on 1 January 2006. Sentences
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