Anyone
involved in a public prosecution or a commercial investigation should be aware
of their rights (and the law) with regard to giving a confession.
Confessions
in civil cases
Article
57 of the new Evidence Law defines “confession” as the admission by a person of [committing] a legal fact to another
person, with the purpose of proving his commission of that fact by such person
and such admission may be judicial or non-judicial. Accordingly, a judicial confession is conclusive
and absolute evidence against the confessor, confined to him, and binding to a
court. The confession may not be
divisible, unless it has been made in respect of a number of events, and the
existence of one of these events does not necessarily mean, or prove, the
existence of the others. Properly
obtained judicial confessions are evidence against the confessor, and the
confessor may not retract such a confession.
Confessions
in criminal cases
Article
190 provides that if at any time the
accused admits that he is guilty, the court shall hear his statements in detail
and cross-examine him. If it is
satisfied that the confession is sound and sufficient, it may abandon the
remaining proceedings, or some of them, and decide the case. That is, the Supreme Court has confirmed that
a confession in a criminal case may have a conclusive role in that case. However, such evidence shall be subject to an assessment
by the subject matter court, with no control or influence from the Supreme Court.
The subject matter court may accept the confession of the accused following its
investigations. In respect of a
confession, the subject matter court will seek to understand the motivation and
grounds behind the giving of the confession, and assess whether or not it has
been given based on evidence, liberty, perception and understanding, or, has
been given subject to coercion.
How
is improperly obtained evidence treated?
Can such evidence be admissible?
A confession
may be inadmissible if it was obtained illegally; however, any material
evidence that is discovered as a result of such confession may still be
admissible. An accused may not avoid
punishment simply for reasons of evidence having been obtained illegally.
A confession
made under coercion is inadmissible, even if there is evidence confirming its
accuracy. If an accused maintained his
confession after the coercion ceased to exist, it would be treated as a new
confession. In order to establish that a
confession was obtained under coercion, the burden of proof lies with the claimant
(i.e., the claimant must prove that his confession was obtained through
coercion such as being tied up, restrained, arrested or guarded).
Confessor’s
retraction
A
confession may, in certain circumstances, be retracted. The retraction of a confession may be
overlooked if the crime can be established with sufficient evidence supporting
the confession. It has been argued that
with regard to major crimes, the retraction of a confession does not cancel the
confession, but other evidence is required, even circumstantial evidence, in
this regard.
Call
recording and tapping and recorded tapes as evidence
Article
90 of the Criminal Procedures law states that Correspondence and cables may not be confiscated or perused,
newspapers, publications and parcels may not be confiscated, conversation
taking place at a private place may not be recorded, the telephone may not be
tapped and the dialogue may not be recorded without the permission of the
Public Prosecutor. The permission
specified in article 90 of this Law shall be issued if the Public Prosecutor is
of the view that it would be useful evidence where there is a suspected offence
or misdemeanor that would be punishable by imprisonment for a period exceeding
three months. The permission shall be
substantiated and its period shall not exceed 30 days subject to renewal for
similar periods, if required.
Moreover,
article 30 of the Basic Law states that
the freedom of correspondence by post, telegraph, telephone, or other means of
communication is protected and its confidentiality guaranteed. Hence it is unlawful to monitor, search,
disclose the confidentiality, delay or confiscate the same except in cases
specified by the law and in accordance with the procedures prescribed therein.
Any person involved in a public prosecution or
commercial investigation should consult with a lawyer as soon as possible and, in
any event, before giving a confession.
