A/71/298 97. The exclusionary rule extends to any form of coercion. Confessions of guilt are valid only if made without coercion of any kind (see American Convention on Human Rights, art. 8 (3)). The Luanda Guidelines recall that confessio ns or other evidence obtained by any means of coercion or force, including during incommunicado detention, cannot be admitted as evidence or considered as probative of any facts at trial or sentencing. 98. The exclusionary rule also applies to evidence gathered or derived from information obtained under duress (see Inter-American Court of Human Rights, Cabrera García and Montiel Flores v. Mexico). States must carry the burden of proving that confessions were obtained without duress, intimidation or inducements. 23 As a matter of best practice, the exclusionary rule should also apply to collecting, sharing and receiving information tainted by any form of coercion. 99. Coerced confessions are regrettably admitted into evidence in many jurisdictions, in particular where law enforcement relies on confessions as the principal means of solving cases and courts fail to put an end to these practices. The protocol must address the need to change the culture of tolerance and impunity for coerced confessions in such cases. National legislation must accept confessions only when made in the presence of competent and independent counsel (and support persons when appropriate) and confirmed before an independent judge (see A/HRC/13/39/Add.5 and A/HRC/4/33/Add.3). Courts should never admit extrajudicial confessions that are uncorroborated by other evidence or that have been recanted (see A/HRC/25/60). If doubts arise about the voluntariness of a person’s statements, as when no information about the circumstances of the statement is available or when pursuant to arbitrary, secret or incommunicado detention, the statement should be excluded regardless of direct evidence or knowledge of abuse (see A/63/223). 100. National laws must provide for the exclusion of all evidence obtained in violation of safeguards designed to prevent mistreatment (see A/HRC/25/60), such as confessions or incriminating statements obtained in violation of one ’s rights to be informed of his or her rights and legal status before questioning, or duly warned that his or her words may be recorded and used in evidence against him or her. Evidence should also be excluded when access to counsel is unduly delayed or denied, or involuntarily waived; whenever specific safeguards applicable to the questioning of vulnerable persons are infringed; and when persons are denied adequate breaks and periods of rest during interviews save compelling circumstances. The protocol should account for situations where evidence or information is obtained in violation of preventive safeguards and the accused takes a plea without trial. IV. Conclusions and recommendations 101. The Special Rapporteur calls upon States to spearhead the development of a universal protocol aiming to ensure that no person is subjected to torture, ill-treatment or coercion, including any forms of violence, duress or threat. A protocol, to be developed in collaboration with relevant international and regional human rights mechanisms, civil society and experts, must be grounded __________________ 23 24/25 See the report of the Inter-American Commission on Human Rights on the human rights of persons deprived of liberty in the Americas (OEA/Ser.L/V/II.Doc.64). 16-13568