widely-accepted fair trial right not to be compelled to testify against oneself or confess
guilt.4
8.
The APT opposes the admission in any proceedings of information which has been or
may have been obtained as a result of a violation of the prohibition of torture and other
forms of ill-treatment, except as evidence that such practice occurred.
9.
As explained by the UN Special Rapporteur on the Question of Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (Special Rapporteur on
Torture), “laxity and inertia on the part of the highest executive authorities and of the
judiciary in many cases are responsible for the flourishing of torture.” He indicates
further that the judiciary should be aware that “it is within their competence to refuse
evidence which is not freely given” and that “it is within their power to make torture
unrewarding and therefore unattractive and they should use that power.”5
10.
In this light, the purpose of this Amicus Curiae brief is to provide analysis and
comparative law jurisprudence on the duty of States to prevent torture and to ensure
that evidence is not obtained through this unlawful and heinous practice. After some
preliminary considerations on the status of ratification of the main human rights
instruments in Mexico, it focuses on different aspects of the principle of nonadmissibility of evidence obtained by torture, including its history and legal framework;
its absolute and non-derogable nature; its purpose and relationship with fair trial rights;
the burden of proof; and its application to other forms of ill-treatment. Finally, this legal
brief provides some final comments on the evidentiary value of confessions, with a
particular reference to the principle of procedural immediacy in Mexico.
II.
PRELIMINARY CONSIDERATIONS
11.
Mexico is a State Party to the main international human rights instruments: the
International Covenant on Civil and Political Rights6 (ICCPR) and its Optional
Protocols;7 the UN Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment 8 and its Optional Protocol;9 the International Covenant on
Economic, Social and Cultural Rights;10 the International Convention on the Elimination
of All Forms of Racial Discrimination;11 the Convention on the Elimination of All Forms
of Discrimination against Women12 and its Optional Protocol;13 the Convention on the
Rights of the Child14 and its two Optional Protocols;15 the International Convention on
the rights of Migrant Workers and Members of their Families;16 the Convention on the
4
See ICCPR Article 14(3)(g).
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,
UN doc. E/CN.4/1993/26, at § 590 (15 December 1992).
6 Acceded 23 March 1981 (Source: UN Treaty Collection – see:
http://treaties.un.org/Pages/Treaties.aspx?id=4&subid=A&lang=en).
7
Acceded 15 March 2002 and 26 September 2007 (First and Second respectively).
8
Ratified 23 January 1986.
9
Ratified 11 April 2005.
10
Acceded 23 March 1981.
11
Ratified 20 February 1975.
12
Ratified 23 March 1981.
13
Ratified 15 March 2002.
14
Ratified 21 September 1990.
15
Ratified 15 March 2002 (both).
16
Ratified 8 March 1999.
5
3