E/CN.4/2001/66/Add.2 page 35 with a small quantity of a relatively non-harmful substance, such as a few grammes of marijuana, which should have led to a charge of drug possession (art. 16). Similarly, there seems to be a tendency to charge a suspect with robbery (art. 157) rather than theft (art. 155). The former attracts a minimum sentence of more than four years, which means that bail cannot be granted, while the latter attracts a sentence of from one to four years and allows bail. A number of testimonies from detainees referred to petty crimes involving small sums and no serious threats to person or property. Still the police, prosecutors, or even judges were said to freely qualify theft as robbery to put petty criminals, who in many countries would not even receive a custodial sentence, in a person for long periods. Moreover, it is alleged that the police frequently coerce confessions to the more serious offence, even when a suspect is willing to confess to a lesser one. The law seems to act as an incentive to the police to extract confessions to crimes that may be more serious than those actually committed. This tendency seems also to be reinforced by constant calls from the public and politicians for stricter measures to be taken against criminals. This policy not only results in a substantial level of unnecessary deprivation of liberty, but also contributes to the overcrowding problem. This policy seems to be supported by statistics provided by the São Paulo State Secretariat for Penitentiary Administration: as of 31 October 2000, 50 per cent of prisoners had been convicted of robbery while only 8.75 per cent for theft. Similarly, according to the Governor of the State of Minas Gerais, more than 40 per cent of detainees in the state have been sentenced for drug trafficking while NGOs and law practitioners pointed out that most had only been caught with a very small quantity of drugs (mostly marijuana) believed to be for their own consumption. 101. With respect to confessions, article 5 (LVI) of the Constitution provides that “evidence obtained through unlawful means is inadmissible in the proceedings”. On the burden of proof, article 156 of the Code of Criminal Procedure states that “(t)he burden of proving an allegation lies upon whoever has made it, but the judge may, at the evidentiary phase or before delivering the sentence, issue an ex officio order for the performance of any actions he may deem appropriate in order to clarify any doubts on a relevant issue”. 102. According to the President of the Federal Supreme Court, in case of torture allegations made by a defendant during a trial, there is a reversion of the burden of proof. The public prosecutor would have to prove that the confession was obtained by lawful means and the burden of proof would not lie with the defendant having made the allegations. According to public prosecutors from the Nucléo contra Tortura of the Federal District of Brasilia, if a judge or a public prosecutor is informed that a confession may have been obtained through illegal means, he/she should initiate an investigation, which will be carried out by a prosecutor other than the one in charge of the case. According to their interpretation, as long as investigations are ongoing on the matter, the confessions must be removed from the file. The President of the Federal Court of Appeal confirmed this interpretation of the law. He indicated that when there is prima facie evidence that a defendant has confessed under torture and if his/her allegations are consistent with other evidence, such as forensic evidence, the trial must be suspended by the judge and the public prosecutor’s office must require the opening of an investigation regarding the torture allegations. If the judge intends to purse the prosecution of the suspect, the confession concerned, as well as other evidence obtained through this confession, should not be part of the body of evidence in the original trial. If a confession is the only evidence against a defendant, the judge should decide that there is no basis for conviction. The Prosecutor General of the