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Ending Torture Evidence in Mexico: meeting with Mexican defence lawyers

admin - November 15, 2019 - Torture, REDD

 

In September, Fair Trials and IJPP completed a training that took place at Mexico’s Comisión Nacional de los Derechos Humanos (National Commission of Human Rights), bringing together lawyers from Mexico City and surrounding cities to look at how we can end evidence obtained by torture or ‘torture evidence’ in Mexico.

On the first day of the event, Veronica Hinestroza and Rafael Barreto Souza from the International Bar Association’s Human Rights Institute (IBAHRI) facilitated a discussion and a workshop on the role of the Istanbul Protocol (or the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) in the exclusion of torture evidence in Mexico.

One of the key takeaways from the discussion was that criminal justice actors in Mexico are not using and implementing the Istanbul Protocol properly. The Protocol should serve as a tool for the investigation and documentation of torture, but it is not binding or compulsory, especially in cases where the victim doesn’t want to undergo a medical examination.

We heard about several cases where the decision to investigate torture was fundamentally dependant on the application of the Istanbul Protocol. However, following the Protocol as a binding document poses significant problems: it can lead to the revictimization of the victim, and its application as the only method of proving torture can replace a more rigorous investigation. It also threatens to transform the Protocol into an instrument that can be used to support impunity, and in many cases, criminalize victims instead of protecting them.

As a result, our next training events will focus on the implementation of the Protocol. Fair Trials and IJPP will produce a toolkit that will demystify the Protocol and serve as a practical guide for defence lawyers on how to show torture evidence without applying the Protocol’s provisions.

Moreover, the group of lawyers who attended the training, our Advocacy Action Group, will also reach out to members of the Mexican judiciary, the prosecutor’s office (Ministerio Público), and other justice actors to engage with them on using alternatives instead of relying on the Istanbul Protocol as the sole means to prove allegations of torture.

On the second day of the event, Simón Hernández León and Javier Carrasco from IJPP guided a discussion on criminal and constitutional litigation and the rules of evidence in the Mexican criminal justice system, while defence lawyers shared their experiences and pitched possible litigation strategies within the different stages of the criminal justice process in Mexico.

The first stages of detention, specifically the period between the arrest of the suspect and their presentation before the prosecutor’s office, are laden with challenges, even though most torture claims occur at this stage. Although suspects have the right to access counsel, in practice this hardly ever happens. Thus, preventative monitoring (including the mechanisms to prevent torture such as an ombudsman) and access to counsel need to be addressed more strongly.

The participants also emphasized the importance of training defence lawyers on how to submit timely requests for hearings in order to verify that the rights of the defendant have been preserved and respected from the moment of their arrest, without waiting for the trial stage to request remedies for rights violations. Even though these hearings are an important tool, they are seldomly used in practice.

There is also an urgent need to follow-up on the ‘vistas al Ministerio Publico’, which is a compulsory review, ordered by the judge to the prosecutor to open a criminal investigation against the alleged torture perpetrators. Once the judge has ordered a review, defence lawyers must follow-up and hold the prosecutor’s office accountable for its legal duties.

In November, Fair Trials and IJPP will host a similar event in Monterrey (Northern Mexico) to continue the discussion. In January, another event will be held in Oaxaca (Southern Mexico) with a special focus on indigenous populations and people with disabilities.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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