A pending bill to reform Mexico’s justice system offers an historic opportunity to combat the widespread use of torture, Human Rights Watch said in a letter to the Mexican Congress today. The Congress should pass the bill’s anti-torture provisions, but reject other measures that would undermine their positive impact.
“Torture has been Mexico’s open, shameful secret for decades,” said José Miguel Vivanco, executive director of the Americas Division of Human Rights Watch. “After years of merely treating the symptoms of the problem, Mexico now has a reform proposal that attacks the main factors behind torture.”
Some 588 cases of torture—many involving more than one victim—were documented by the state and national human rights ombudsmen between 1990 and 2003, according to a recent study published by Mexico’s National Human Rights Commission (Comisión Nacional de Derechos Humanos, or CNDH).
Moreover, there are good reasons to believe that the documented cases represent only a fraction of the total number. One is the fact that torture is often extremely difficult to document. There are usually no witnesses to the crime, and it often leaves no physical scars on the victim. Consequently, the only evidence of torture is likely to be the word of the victim, which is often insufficient to prove that the crime took place. And even this evidence may never emerge, since a principal effect of the torture—and often its main objective—is to intimidate the victim into silence.
Another reason to suspect that the use of torture is widespread in Mexico is the fact—demonstrated by the cases that have been documented—that torture currently fulfills a special function within the Mexican criminal justice system: it generates confessions. According to the CNDH study, in 83 percent of the torture cases documented by the commission, the abuse served to force a confession from the victim.
Forced confessions can serve multiple purposes. One is to provide proof—both the self-incriminating statement and the leads to other witnesses and physical evidence—that the victim is guilty of a crime. But if torture is typically intended to force the truth out of a criminal, it can also force a lie out of someone who is innocent. Moreover, it can serve an even more sinister purpose—providing law enforcement agents cover for their own criminal activities.
The justice reform proposal, which President Vicente Fox unveiled in March, seeks to promote both the protection of basic rights and the strengthening of public security. Among its wide-ranging provisions are changes in the Mexican Constitution that tackle the torture issue head on.
The most important of these provisions is a modification of Article 20 of the Constitution—which protects due process rights—establishing that that confessions would not be admissible as evidence unless they were that are not made directly before a judge. This requirement virtually eliminates the law enforcement agents’ main incentive to torture detainees: the possibility that a coerced confession could be used to convict the victim.
The reform package contains several other constitutional provisions that could also be helpful in curbing the practice of torture:
- an explicit recognition that criminal suspects enjoy a “presumption of innocence” until proven guilty;
- a requirement that the a criminal defendant have access to defense counsel from the moment he or she is brought before the prosecutor, and that it be a “certified” lawyer and be “adequate”;
- a general rule that would deny legal effect to the illegal practices by law enforcement agents, thereby quashing evidence obtained illegally.
At the same time, the reform proposal itself undercuts the effectiveness of the anti-torture provisions by creating exceptions to its own guarantees. The most glaring exception is for cases involving “organized crime.” A proposed modification of the constitution allows for legislation that could exempt these cases from due process guarantees.
“It may be true that law enforcement agents need special means to bring powerful mafias to justice,” said Vivanco. “But this does not justify creating a large class of criminal suspects for whom basic constitutional guarantees do not apply.”
On Friday, December 10, President Fox will unveil a “National Human Rights Program” outlining a comprehensive set of objectives that Mexico should pursue to improve its human rights practices in a variety of areas, including the criminal justice system.
“The criminal justice reform should be seen as a critical test of whether Mexico is serious about pursuing its National Human Rights Program,” said Vivanco. “The legislation is already on the table, and it’s up to Fox and Congress to make it work.”
