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 posttraumatic stress disorder as a consequence of the torture they had endured.
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