Mexican Courts Can Help End the Use of Torture. So Why Don’t They?
By Masha Lisitsyna & Adriana García
There is a simple rule under international human rights law: any evidence obtained through torture cannot be used in court. But the implementation of this “exclusionary rule” is not that simple.
With torture happening in secret and almost always going unpunished, courts around the world struggle to identify when torture has taken place, and often fail to react appropriately. This is true in Mexico, where―as UN Special Rapporteur on Torture Juan Mendez has noted―torture is widespread and used as both punishment and a means of investigation.
Recently, the Supreme Court of Mexico issued several forceful rulings on the exclusionary rule and how courts should deal with torture allegations. These decisions establish that the obligation of a judge goes well beyond throwing out a confession obtained through torture. But whether Mexico’s courts will act on the Supreme Court’s rulings remains an open question.
According to an April 2014 decision by the Supreme Court, judges must initiate two independent investigations in any case where a defendant alleges torture. According to this decision, failure to investigate torture allegations during criminal proceedings constitutes a violation of the due process guarantee.
The Supreme Court’s ruling came in the case of a woman sentenced to 25 years in prison for murdering her husband. Even though the woman did not ratify her initial confession and argued that it was obtained by torture, the first instance judge did not start an investigation into this allegation and insisted that the initial medical report did not describe any evidence of torture, concluding that the torture allegations were false.
The Supreme Court of Mexico revoked that decision and established the following:
- Investigations must be ordered by the judge ex officio and should be conducted by a public prosecutor immediately after allegations are made.
- Investigations shall be impartial, independent, and thorough, with the purpose of determining the nature and origin of the injuries, and identifying and sanctioning the responsible agents.
- Investigations shall guarantee the obtaining and safeguarding of evidence of torture.
- The state must guarantee the independence of medical personnel involved in the investigation.
- The initial burden of proof on the complainant to show that the allegations are credible should be minimal and then the burden must shift to the state.
- Judges shall make the necessary investigations to determine the plausibility of the allegation.
In a subsequent, April 2015 decision, the Supreme Court went further, finding that the exclusionary rule applies not only to the accused but also to any other person involved in the criminal case. The decision specifies that investigations into allegations should be done in accordance with the Istanbul Protocol [PDF], a set of UN approved guidelines for documenting torture.
Despite strong legal guarantees and the Supreme Court’s decisions, day-to-day compliance with the exclusionary rule in Mexico remains uneven at best. To investigate the use―or lack of use―of the exclusionary rule, right-to-information requests were submitted to the Mexican Federal government and the governments of the states of Coahuila, Federal District, Guerrero, Oaxaca, Queretaro, and Nuevo Leon asking how many times evidence allegedly obtained through torture was excluded, and the number of torture investigations triggered by such allegations.
Only Coahuila and Guerrero had specific relevant records; others did not answer the request or had no specific information. In Coahuila, although a total of 18 requests have been made by judges between 2000 and 2013 to investigate allegations of torture, only one criminal investigation was initiated―and it resulted in no indictment. Similarly, Guerrero reported one request made by a judge between 2000 and 2013 to investigate allegations of torture, one criminal investigation, and no indictments.
Mexico is currently in the process of implementing a new criminal procedure code. As the Supreme Court rulings on the exclusionary rule make clear, Mexico’s courts can play an essential role in preventing torture, and the new criminal procedure code gives them powerful tools to do so. The question now is, will they do it?
Masha Lisitsyna is senior managing legal officer with the Criminal Justice Cluster, Open Society Justice Initiative.
Adriana García, a Mexican lawyer specialized in administrative law, works with the Open Society Justice Initiative on access to information and justice issues in Mexico.