Introduction
The exclusionary rule (Article 15 of the UN Convention Against Torture) is an important piece of the elaborate and sophisticated normative framework of International Law surrounding torture and ill-treatment. All my predecessors and my successor as Special Rapporteur on Torture (SRT) have had – like me – multiple occasions to comment on it in country reports and in Observations regarding communications sent to us denouncing instances of torture. Nevertheless, the conventional clause in the CAT contains language that has given rise to equivocal interpretations of the State’s obligation in the presence of evidence possibly obtained by torture, and more seriously has lent itself to bad faith interpretations of the clause.
Challenges in the language of CAT
Article 15 mandates exclusion of evidence that has been determined to have been obtained under torture. This language is deficient because it provides States and authorities with an easy way out: in many countries, courts and prosecutors insist on admitting statements or declarations unless the defendant proves the existence of torture to the court’s satisfaction. This constitutes an unwarranted shift in the burden of proof to the defendant, who is most often in the worst possible position to provide evidence of torture, especially if the defendant is still in custody and without the wherewithal to obtain the services of a qualified forensic doctor. An interpretation in good faith, and consistent with the State’s other due process obligations, would insist that it is up to the prosecution to prove that the statement or declaration and all other means of evidence have been lawfully obtained. In addition, Art. 15 refers only to statements and declarations. In some jurisdictions, evidence that was obtained in a search, seizure or a statement of a second suspect and only indirectly originated from torture is frequently admissible. The object and purpose of the exclusionary rule is not only to provide for a fair trial but also to discourage torture, as stated in the US Supreme Court case called Mapp v. Ohio (Supreme Court of the US, 367U.S.643 (1961)). An interpretation consistent with that object and purpose of the norm would apply the “fruit of the poisonous tree” doctrine and exclude all evidence directly or indirectly related to torture.
In a thematic report on torture-tainted evidence that I presented in my capacity as UN Special Rapporteur on Torture I advocated for this more protective, teleological interpretation of the words of Article 15 (Human Rights Council, Report of the Special Rapporteur on Torture, A/HRC/25/60, 10 April 2014). In addition, Article 15 does not mention torture obtained by methods that constitute cruel, inhuman or degrading treatment, i.e., ill-treatment that does not meet the intensity or specific intent required for torture. For its part, Article 16, in defining that kind of ill-treatment, makes applicable to it various preceding articles, although not specifically mentioning the exclusionary rule. However, the list of other provisions that are applicable to CIDT is preceded by the words “…in particular…”, which can only mean that the list is not meant to be exhaustive. And the provisions of fair trial in general International Human Rights law make it clear that any and all forms of coercion are prohibited and must therefore be subject equally as torture to the exclusionary rule. Regional courts have made this obligation to exclude evidence obtained by means short of torture, albeit with various scopes of application (ECtHR, Gafgen v Germany, 1 June 2010; IACtHR, Cabrera Garcia and Montiel Flores v Mexico, 2010.)
Finally, Article 15 obliges States to exclude evidence obtained by torture in any proceeding against the person making the declaration. Proceeding is a broad concept that refers not only to criminal prosecutions but includes also disciplinary and other administrative processes. There is no question, therefore, that the exclusionary rule applies equally to evidence used, for example, in immigration decisions and in asylum and refugee determinations. In the context of the Global War on Terror, some powerful States took the position that there was no obligation to exclude information obtained under torture if it was not used as evidence in proceedings. For example, in planning intelligence or military operations. Also, that the exclusionary rule applies only to evidence obtained by the State’s own agents, but not to that obtained by intelligence services of other States. Finally, those powerful States also adhered to the notion that all the obligations acquired through ratification of CAT and other human rights treaties were strictly territorial, i.e., that they did not apply to wrongful acts conducted by the States’ agents when operating overseas. Notably, that also left open a wide gate to encourage the practice of torture by their own agents, also in contravention with the object and purpose of the exclusionary rule.
The exclusionary rule in domestic law
It is up to the domestic jurisdiction to establish procedures to give effect to the exclusionary rule through legislation and regulation, and for domestic courts to decide if those procedures comply with constitutional as well as conventional standards. In many countries, however, procedural law is not clear as to what the court has to do if an issue arises as to the possibility that a piece of evidence may have been obtained under torture. In such cases, courts may decide that there is a possibility that torture occurred and pass that along the matter to a prosecutor - where it dies because most prosecutors prefer not to investigate further and file charges against suspected perpetrators. In some countries, courts do not follow up on referral to the prosecutor, claiming that the notion of prosecutorial discretion is part of the sphere of autonomy of the prosecutor’s office and off-limits to judicial supervision. And yet torture is an international crime that obliges the State to investigate, prosecute and punish every incident of torture and ill-treatment. For that reason, exercises of prosecutorial discretion must be judicially reviewable under standards of reasonableness, in order to eliminate or sharply reduce the effects of impunity for torture.
Again on the implementation of the exclusionary rule, courts in many countries receive claims of torture of defendants and perhaps make some effort at corroboration, say by ordering a medical examination to be performed according to Istanbul Protocol standards. But then courts defer the decision on the exclusionary rule to the trial of the defendant. This of course could take several years and, if the crime is serious enough, the defendant would spend that time in preventive detention. A proper application of the exclusionary rule should be prompt, as it is an important way to operationalize the presumption of innocence. If a confession is excluded, the proceedings should continue if backed by other evidence, including the holding of a trial and a decision to convict or acquit. Even if the court eventually acquits by excluding crucial evidence, the person may have spent four or five years in prison on the basis of torture-tainted evidence. It is important, therefore, to conduct an autonomous and prompt investigation specifically on the claim of torture and, if proven, the resulting evidence – and other evidence derived from the mistreatment – must be excluded ab initio.
Encouraging developments
In Mexico, the Supreme Court in 2014 issued a non-binding directive called Protocolo de Actuacion en casos de Tortura that was addressed to lower courts on how to act in cases where torture is alleged or where a magistrate presumed that unlawful methods may have been part of the investigation. This directive was thorough and detailed but its non-binding character probably resulted in a very limited impact in the practice of lower courts. In 2017 the Congress passed a very comprehensive law called Ley General sobre Tortura that, among other things, applies not only in the federal system but is mandatory in all States of the federation (Ley General para Prevenir, Investigar y Sancionar la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes, 16 July 2017). In November 2021 the Supreme Court issued another directive reasserting the 2014 Protocol, this time with more detailed and complete instructions than in the 2014 directive (Corte Suprema de Justicia, Protocolo para Juzgar Casos de Tortura y Malos Tratos, www.scjn.gob.mx). It is expected that it will result in more practical and expeditious ways for higher courts to supervise and control how lower courts implement the exclusionary rule as well as the obligation to investigate, prosecute, and punish torture.
In Brazil, the Supreme Court also instituted a system of Audiencias de custodia in 2015. It was also done by means of a non-binding directive to State and federal courts below. Significantly, however, in a matter of months several State courts had implemented the system and in later years it has been extended to the whole country. In essence, the practice is now that, within 24 hours of deprivation of liberty, the detained individual has to be brought before a court so that a magistrate can: 1) determine the legality of the arrest; 2) decide whether action is needed regarding detention conditions, interrogation, etc. A doctor is available who can conduct a medical examination under the Istanbul Protocol if a claim of torture is made or if the magistrate has reason to believe that mistreatment has occurred. Despite the fact that, for now, courts continue to accept a broad and questionable standard of flagrante delicto as justification of arrests, the system of custody hearings is by all accounts functioning smoothly and efficiently.
Also in Brazil, the Court of Appeals (Fourth Criminal Chamber) of the State of Rio de Janeiro issued a historic decision on 15 February 2022, in a case known as Sala Vermelha (“Red room”). The decision upheld the lower court acquittal of six young men detained by Army agents in 2018. They had been taken to a military facility upon arrest – for which the Court found no justification in law – and they had confessed to crimes under torture. The appellate decision established clearly that torture had occurred, as had been certified by a lower court in the opportune moment at the custody hearing. In March 2019 all suspects had been reexamined at the Medico-Legal Institute, with the assistance of international forensic experts, at which time the detainees were found to be suffering from post-traumatic stress disorder as a consequence of the torture they had endured.
Juan E. Méndez, Faculty Director of Anti-Torture Initiative
Juan E. Méndez is a Professor of Human Rights Law in Residence at the American University – Washington College of Law, where he is Faculty Director of the Anti-Torture Initiative, a project of WCL’s Center for Human Rights and Humanitarian Law. In January 2022, he began a three-term as a member of the International Independent Mechanism on Racial Justice and Equality in Law Enforcement. Mr. Méndez was the UN Special Rapporteur on Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment between 2010 and 2016. He was the Special Advisor of the Secretary-General on the Prevention of Genocide from 2004 to 2007 and between 2000 and 2003 he was a member of the Inter-American Commission on Human Rights.