Shaping Domestic Application of Prohibition of Torture
 As a former UN Special Rapporteur on Torture with vast experience and international prestige, AUWCL Professor Juan E. Mendez has been appointed as expert witness by court or parties and produced numerous expert opinions in litigations against torture. |
Prof. Mendez has acted in that capacity because of his mandate as the UN Special Rapporteur on Torture between 2010 and 2016, and also on account of his continuing involvement with the issue of torture in the last four years as the Faculty Director of the ATI, a project of WCL’s Center for Human Rights and Humanitarian Law. Most of these litigation efforts have been conducted jointly with the Impact Litigation Program, another project of the CHRHL. Of note is a class action lawsuit (Ashker v. Brown) challenging regulations and practices in California on the extensive use of prolonged or indefinite solitary confinement, settled in 2016 in terms very favorable to the plaintiffs: 90% of the isolated inmates were sent to the general population.
Expert witness reports of this sort submitted by Mendez have resulted in four separate judgments declaring Canada’s federal regulations on solitary confinement unconstitutional as in violation of international human rights obligations. The Government of Canada has declined to appeal to the Supreme Court and instead it will be submitting legislation to Parliament to bring those regulations into conformity with the judicial decisions. Similarly, Prof. Mendez acted as expert witness before the Inter-American Court of Human Rights in the landmark case of Linda Loayza Lopez v Venezuela about sexual violence and enslavement by a non-State actor, and in Azul Rojas Marin v Peru, about police brutality against a transgender person. He is scheduled to present other expert testimony in two other pending cases.
Since 2018, Mendez has performed as expert witness in several extradition cases in the United Kingdom. In four of them, the requesting country was Brazil; one was against Sweden and the most recent one is pursuant to a request from Mexico. In most cases the testimony relates to the prison conditions to which the person would be subjected if the extradition request succeeds. Art. 3 of the European Convention on Human Rights, as well as Art. 3 of the UK Human Rights Act, prohibit the sending State from extraditing anyone to a place where there is a risk of torture or cruel, inhuman or degrading treatment or punishment. The same prohibition – which is absolute and non-derogable -- is established in Art. 3 of the UN Convention Against Torture, a standard sometimes known as the non-refoulement clause of UNCAT.
In addition to an analysis of prison conditions in general in the requesting country, the expert testimony reflects on specific characteristics of the various detention centers identified as where the person sought will be held if sent back. On at least two occasions, the expert witness traveled to Brazil to inspect two different prisons, after receiving assurances of cooperation by the Brazilian authorities. Covid-19 restrictions on travel have made it impossible to conduct such on site investigations, at least for the whole of 2020. In all cases, however, the expert testimony relies also on published reports by domestic observers and official preventive mechanisms, as well as other documentation. It is important to ensure that the reports cited are as up-to-date as possible, since prison conditions change over time. Since the expert witness is essentially an advisor to the court and not to any of the parties in litigation, the report must also point out improvements and aspects of the prison conditions that do comply with international standards.
Overcrowding is by far the most prevalent of all possible conditions that trigger the non-refoulement clause (in the Swedish case the issue was the possibility of prolonged solitary confinement in preventive detention). In some cases, the government claims that the prisons operate at capacity or under it. However, stated capacity should be scrutinized: corrections departments count “beds” rather than living space, which fortunately has been the subject of norm-development by authoritative organs like the Committee on Prevention of Torture of the Council of Europe, and the European Court of Human Rights. The “Nelson Mandela Rules” (formerly UN Standard Minimum Rules on the Treatment of Prisoners), adopted by the UN General Assembly in December 2015, provide an invaluable measuring stick as to how to interpret the rights of persons deprived of liberty and the corresponding obligations of States.
Prisons that hold populations exceeding capacity generally also present a serious decay in fundamental services and prisoners’ rights, such as quality and quantity of food, medical and other health services, sanitary conditions in cells and in kitchens, and so on. Significantly, overcrowding results in insecurity for most inmates, as the phenomenon of “self-government” by prison gangs – either uncontrolled or enjoying the illicit support of corrections officers – provides multiple opportunities for kickbacks, extortion, violence and sexual abuse. In some cases, insecurity results also from brutal enforcement of prison regulations by guards. In all of those situations it is important to note not only the absence of action on complaints of mistreatment, but also whether these acts are covered in impunity because of either negligence or active encouragement by authorities.
After conducting research (which sometimes may include procuring accounts from former inmates and local experts on prison conditions), the ATI and Professor Mendez present a sworn written report to the British court, and defends it at a hearing generally conducted by video-conference. At that hearing the expert witness is questioned by the defense and by the prosecutors (as in other jurisdictions, the requesting State is represented in the extradition proceedings by the UK prosecutors), as well as by the presiding magistrate. The outcome may be an order to extradite or a decision denying the request. In some cases, the magistrate has stayed the proceedings to allow the requesting State to identify other possible detention centers to be used if extradition is ordered. In a few cases, the requesting State has abandoned the petition.
The ATI and the Impact Litigation Program believe that these requests may present opportunities for WCL students to conduct research, both factually on actual conditions in a given prison, and on international legal standards on how to interpret the normative framework against torture and ill-treatment.