The Committee against Torture has also required State parties to, inter alia, judicially review all cases
in which convictions were based solely on confessions obtained through torture (Concluding
Observations on Afghanistan (June 2017) [28]). In the case of Bayarri v. Argentina, the Inter-American
Court of Human Rights held that the Chamber of Appeals’ declaration that a forced confession was
invalid and annulment of procedural actions arising therefrom constituted an effective measure to
stop the consequences of a violation of judicial guarantees (Judgment: Preliminary Objection, Merits,
Reparations and Costs (October 2008) [108]).
In practice, many judiciaries lack guidance on the operationalisation of the exclusionary rule. For
example, as of 2016, no ‘practice direction’ or procedural guidance existed for Tunisian judges on steps
to take when allegations of forced confessions are raised in court (REDRESS. Legal Frameworks to
Prevent Torture in Africa: Best Practices, Shortcomings and Options Going Forward (2016) pg. 35). The
UN Committee against Torture has called on Peru to “build the institutional capacity needed in order
to disallow statements obtained under torture” and “[c]compile information on criminal proceedings
in which judges, either on their own initiative or at the request of parties to the case, have ruled that
[torture-tainted] evidence is inadmissible, and the measures taken in that regard” (UN Committee
against Torture. Concluding Observations: Peru (December 2018) [19(a) and ©]).
Public prosecutors
As per the UN Guidelines on the Role of Prosecutors (1990), prosecutors shall, inter alia, “respect and
protect human dignity and uphold human rights, thus contributing to ensuring due process and the
smooth functioning of the criminal justice system” ([12]). Specifically:
“When prosecutors come into possession of evidence against suspects that they know or believe on
reasonable grounds was obtained through recourse to unlawful methods, which constitute a grave
violation of the suspect’s human rights, especially involving torture or cruel, inhuman or degrading
treatment or punishment, or other abuses of human rights, they shall refuse to use such evidence
against anyone other than those who used such methods, or inform the Court accordingly, and shall
take all necessary steps to ensure that those responsible for using such methods are brought to justice”
([16]).
A similar position is adopted in Article F(l) of the African Commission on Human and People’s
Rights’ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) and
the International Association of Prosecutors’ Standards of Professional Responsibility and Statement
of the Essential Duties and Rights of Prosecutors (1999) ([4(3)(f)]). The latter also highlights that
prosecutors shall “examine proposed evidence to ascertain if it has been lawfully or constitutionally
obtained” ([4(3)(e)]).
Defence lawyers
Legal and procedural safeguards play a vital role in creating a conducive environment to prevent forced
confessions, including access to a lawyer in the first hours of detention and throughout judicial
proceedings (see, e.g., Principles on Effective Interviewing for Investigations and Information
Gathering (2021) [61-62]). As per the UN Basic Principles on the Role of Lawyers (1990), lawyers shall,
inter alia, “seek to uphold human rights and fundamental freedoms recognized by national and
international law” ([14]). As part of their duties towards their clients, lawyers should be able to, inter
alia, take “legal action to protect their interests” ([13(b)]), including filing motions to dismiss torturetainted evidence or lodging a criminal complaint of torture. For example, Article 182 of the Chinese
Criminal Procedure Law was amended in 2012 to “formalize pre-trial conferences between judges,
prosecutors, and defendants and their counsel”, providing the defence with an opportunity to present
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