Rights (IACtHR) in 2010, as well as APT submissions to the Mexican Supreme Court in 2014 and the
Costa Rica Constitutional Court in 2017.
While each of the above mentioned submissions holds its own value, the APT amicus curiae brief
presented in the IACtHR case of Teodoro Cabrera García and Rodolfo Montiel Flores against the United
Mexican States 1 perhaps constitutes one of the most significant examples of how CSOs third-party
interventions may effectively contribute to elucidating international standards on the exclusionary
rule, and accordingly promote its effective implementation at the national level.
The APT amicus curiae brief provided analysis and comparative law jurisprudence on the duty of States
to prevent torture and to ensure that evidence is not obtained through this practice. The document
focused on different aspects of the principle of non-admissibility of evidence obtained by torture,
including its absolute and non-derogable nature; its purpose and relationship with fair trial rights; as
well the burden of proof. Finally, the piece tackled the evidentiary value of confessions, with a
particular reference to the principle of procedural immediacy in Mexico.
In its judgement, the IACtHR considered several arguments enclosed in the APT amicus curiae brief.
Most importantly, it concluded that Mexico breached Article 8.3 of the American Convention on
Human Rights, by not excluding evidence obtained by torture in judicial proceedings (Judgement of 26
November 2010, para. 177). Further, in line with APT’s arguments, the Court stated, “statements
obtained under duress are seldom truthful, because the person tries to say whatever is necessary to
make the cruel treatment or torture stop”. Consequently, “accepting or granting evidentiary value to
statements or confessions obtained by coercion, which affect the person or a third party, constitutes,
in turn, an infringement of a fair trial.” Additionally, the Court noted that “the absolute nature of the
exclusionary rule is reflected in the prohibition on granting probative value not only to evidence
obtained directly through coercion, but also to evidence derived from such action" (Judgement of 26
November 2010, para. 167).
II. CSO-led initiatives that support the effective implementation of the exclusionary rule in practice:
a new opportunity for CSO engagement
CSOs can also play a critical role on a broader level, particularly by addressing institutional incentives
and other systemic factors that prevent the effective implementation of the exclusionary rule in
practice.
As recent research shows, the effective implementation of the exclusionary rule is often tied to how
the criminal justice system operates. For instance, criminal justice systems that rely mostly on
confessions as the main evidence on which convictions are founded, will most likely face challenges in
ensuring effective application of the exclusionary rule in practice. Conversely, criminal justice systems
that exclude confession based evidence are likely to be more effective in the implementation of the
exclusionary rule.
In this context, the new Principles on Effective Interviewing for Investigations and Information
Gathering, also known as the Méndez Principles, are a concrete example of a CSO-led initiative that
offers solution-oriented guidance for the effective implementation of the exclusionary rule in domestic
law and practice, while addressing existing incentives and other systemic factors that impede the
correct functioning of criminal justice systems in line with international standards on torture.
The Principles are the culmination of a four year consultation process led by the APT together with the
Anti-Torture Initiative (ATI) and the Norwegian Center for Human Rights (NCHR). The process involved
police investigators, academics, human rights lawyers and CSO representatives from all over the world,
and the Principles were drafted by a multidisciplinary, gender balanced, and geographically
representative group of international experts.
32
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents