CAT/OP/ROU/1/Add.1 TITLE IV - Evidence, methods of proof and evidentiary processes CHAPTER I - General rules Evidence and methods of proof ART. 97. - (1) Any factual element serving to the ascertaining of the existence or non-existence of an offense, to the identification of a person who committed such offense and to the knowledge of the circumstances necessary to a just settlement of a case, and which contribute to the finding of the truth in criminal proceedings represents evidence. (2) Evidence is obtained in criminal proceedings through the following means: a) statements by suspects or defendants; b) statements by victims; c) statements by civil parties or of parties with civil liability; d) statements by witnesses; e) documents, expert reports or fact finding reports, minutes, pictures, physical evidence; f) any other methods of proof that are not prohibited by law. (3) An evidentiary process is the legal method for obtaining evidence. Object of evidence Art. 98. - The following are items of evidence: a) the existence of an offense and its commission by a defendant; b) facts regarding the civil liability, when there is a civil party; c) facts and factual circumstances on which the application of law depends; d) any circumstance necessary for a just settlement of a case. Burden of proof Art. 99. - (1) In a criminal action, the burden of proof rests primarily with the prosecutor, while in a civil action it rests with the civil party or, as applicable, upon the prosecutor initiating the civil action, if the victim lacks mental competence or has limited mental competence. (2) A suspect or defendant benefits from the presumption of innocence, has no obligation to prove their innocence, and has the right not to contribute to their own incrimination. (3) In criminal proceedings, victims, suspects and parties have the right to propose the production of evidence to judicial bodies. Production of evidence Art. 100. - (1) During the criminal investigation, criminal investigation bodies gather and produce evidence both in favor and against a suspect or a defendant, ex officio or upon request. (2) During the trial, the court produces evidence upon request by the prosecutor, the victim or the parties and, subsidiarily, ex officio, when it deems it necessary for the creation of its own conviction. (3) An application regarding the production of evidence filed during the criminal investigation or the trial is sustained or denied, on a justified basis, by the judicial bodies. (4) Judicial bodies may reject an application regarding the production of evidence when: a) a piece of evidence is not relevant to the object of evidentiary in a case; b) it is decided that sufficient evidence has been produced for proving a factual element representing the object of evidentiary; c) a piece of evidence is not necessary, as the fact is of notoriety; d) a piece of evidence is impossible to obtain; e) an application was filed by a person who has no such right; f) production of evidence is contrary to the law. Principle of loyalty in producing evidence Art. 101. – (1) It is prohibited to use violence, threats or other coercion means, as well as to promises or inducements for the purpose of obtaining evidence. (2) Hearing methods or techniques affecting the capacity of persons to remember and tell conscientiously and voluntarily facts representing the object of the taking of evidence may not be used. Such prohibition applies even if a person subject to such hearing gives their consent in relation to the use of such hearing methods and techniques. (3) Criminal judicial bodies or other persons acting on their behalf are prohibited from entrapping a person into committing or continuing commission of a criminal act for the purpose of obtaining evidence. Exclusion of evidence obtained illegally Art. 102. - (1) Evidence obtained through torture, as well as evidence deriving from such may not be used in criminal proceedings. (2) Evidence obtained unlawfully may not be used in criminal proceedings. (3) The nullity of a document ordering or authorizing the production of evidence or based on which such evidence was produced triggers exclusion of that evidence. 5