133
referring to any type of coercion. 434 In this regard, the Inter‐American Court has
established that:
Upon verifying any type of duress capable of breaking the spontaneous
expression of will of a person, this necessarily implies the obligation to
exclude the respective evidence from the judicial proceeding. This
nullification is a necessary means to discourage the use of any type of
duress. […] Likewise, the absolute character of the exclusionary rule is
reflected on the prohibition of granting probative value not only to the
evidence obtained directly under duress, but also to evidence gathered or
435
derived from information obtained under duress.
366.
In order for this exclusionary rule to truly function as a judicial protection
of the right to due process and as a mechanism of prevention of torture, it is essential that
it be implemented in such a way that the burden of proving that the confession or
statement were made voluntarily is on the competent authorities, and not the victims. 436
In most cases, the position in which torture victims find themselves makes it materially
impossible or extremely difficult to prove the occurrence of this type of act, because of the
very conditions of imprisonment and their own defenselessness. 437 Consequently, when a
statement or testimony is given and there is any sign or justifiable presumption that it was
obtained by means of any kind of duress, either physical or psychological, the competent
judicial body should determine whether or not duress was actually used. 438
367.
The IACHR underscores that as a measure for the prevention of coercive
acts during investigations, States should make sure that in training police agents and other
officials in charge of the custody of persons deprived of liberty, special emphasis should be
placed on the prohibition of the use of torture, 439 cruel, inhuman and degrading treatment,
and any form of duress.
434
I/A Court H.R., Case of Cabrera‐García and Montiel‐Flores V. Mexico. Preliminary Objection, Merits,
Reparations, and Costs. Judgment of November 26, 2010. Series C No. 220, para. 166.
435
I/A Court H.R., Case of Cabrera‐García and Montiel‐Flores V. Mexico. Preliminary Objection, Merits,
Reparations, and Costs. Judgment of November 26, 2010. Series C No. 220, paras. 166‐167. See also, ONU, Human
Rights Committee, General Comment No. 21: Humane treatment of persons deprived of liberty (Art. 10), para. 6.
In: Compilation of General Comments and General Recommendations adopted by human rights treaty bodies,
Volume I, HRI/GEN/1/Rev.9 (Vol. I) adopted May 27, 2008, p. 297.
436
I/A Court H.R., Case of Cabrera‐García and Montiel‐Flores V. Mexico. Preliminary Objection, Merits,
Reparations, and Costs. Judgment of November 26, 2010. Series C No. 220, paras. 136 y 176; United Nations,
Human Rights Committee, Consideration of reports submitted by States Parties under Article 40 of the Covenant,
Concluding observations: Mexico, CCPR/C/MEX/CO/5, adopted on May 17, 2010, para. 14.
437
United Nations, CAT/OP/MEX/1, Report on the visit of the Subcommittee on Prevention of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment to Mexico, May 27, 2009, para. 39.
438
IACHR, Report on the Situation of Human Rights in Mexico, Ch. IV, para. 39.
439
The duty of training these security forces in the specific prohibition of the use of torture during
interrogation is set out in Article 7 of the Inter‐American Convention to Prevent and Punish Torture and Article
10.1 of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment. See
also, as an example of the establishment of the State's international responsibility for the violation of these rules:
IACHR, Report No. 35/08, Case 12.019, Merits, Antonio Ferreira Braga, Brazil, July 18, 2008, paras. 121‐122.
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