A/HRC/13/39/Add.5 essence of the prohibition. In China, for example, in which the admission of guilt receives particularly high attention, the Criminal Procedure Law explicitly prohibits the extortion of confessions by torture and the collection of evidence by threat, enticement, deceit or other unlawful means.56 However, this provision has not been matched with a prohibition of using illegally obtained confessions during court proceedings. The Supreme Court in this regard held that confessions under torture cannot become the basis for a criminal charge or conviction, but it did not exclude their overall admissibility. Prohibiting the extraction of a confession by torture but allowing it to form part of the proceedings falls short of the protection the safeguard is meant to have. 96. Another example of a deficient incorporation of the prohibition is Sri Lanka. During my mission, Sir Lanka’s ordinary laws provided that confessions made in police custody were inadmissible before the court and any confessions extracted through torture were excluded.57 However, while these provisions appeared to go relatively far, there was no such safeguard under the Emergency Regulations. Against this background, it appears particularly worrying but again not that surprising that I found a routine practice of torture in the context of counter-terrorism operations which were conducted under the Emergency Regulations and thus not subjected to the safeguard. 97. In terms of the actual implementation of the safeguard I have to conclude that confessions and other evidence obtained under torture are more frequently admitted at court than not. In most of the countries I have visited I received a very high number of related allegations which were convincingly corroborated by representatives of the civil society, lawyers, local human rights experts and others. While I was evidently not in the position to verify each individual case, it was without doubt that the competent courts which are under the obligation to take up any allegation of torture and at least enquire into their veracity overwhelmingly failed to do so and sweepingly rejected any allegations of torture. 98. There are several elements which seem to explain this structural malfunctioning of the judiciary. In most countries, suspects are confronted with an almost insurmountable credibility deficit. In sharp contrast to the presumption of innocence, they are a priori believed to be guilty and to raise torture allegations only in order to evade justice. There is a predominant societal perception that anybody who has been arrested and accused must be in some way criminal. The almost customary dismissal of torture allegations without any investigations suggests that also the judiciary is not immune from this mentality. A second element is that there is no shift in the burden of proof. It is not enough for suspects to indicate that their confession was obtained under torture; they have to establish the illtreatment. Since torture almost always takes place behind closed doors, lacks any witnesses except its perpetrators, and any independent forensic expertise to document traces of abuse is beyond the survivor’s reach, this requirement is the most difficult to satisfy and appears almost taunting. In order for the safeguard against the admissibility of evidence obtained under torture to have any realistic prospect of unfolding, a shift of the burden of proof regarding torture allegations has to take place. This is also reflected in the jurisprudence of domestic courts and international monitoring bodies. As Lord Bingham so eloquently stated in a well-known dissenting opinion, “it is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet”.58 A third element concerns many judges and the judiciary in general, who are confronted with an overburdening caseload, chronic understaffing and an overall lack of resources. In such a context, the follow-up of torture allegations from a perceived criminal 56 57 58 28 Article 43 CPL; E/CN.4/2006/6/Add. 6, para 37. Articles 24–27 Evidence Ordinance. A and others v Secretary of State for the Home Department [2005] UKHL 71. See also Gary Slapper and David Kelly, The English Legal System, 10th edition, Routledge-Cavendish, 2009.