Manuela et al. v. El Salvador: The Pitfalls of a Landmark Case for Reproductive Justice from a Torture Perspective

On November 30, 2021, the Inter-American Court of Human Rights (IACtHR) published its judgment in Manuela et al v. El Salvador. ​​The case concerned El Salvador’s responsibility for the arbitrary detention, torture, and conviction of a woman who experienced an obstetric emergency and lost her pregnancy in 2008. The dispute took place in the context of El Salvador’s absolute ban on abortion and its disproportionate impact on impoverished, young, and rural women who experience pregnancy complications or are suspected of having had abortions. According to the Court’s findings, these women were often reported to law enforcement by healthcare personnel, which led to their detention during medical care. Subsequent criminal investigations focused on proving an inculpatory theory for aggravated homicide, resulting in convictions of 30 to 50 years.

The IACtHR found El Salvador responsible for a series of violations relating to pre-trial detention, due process, medical confidentiality, gender-based violence, and discrimination. While this ruling is a welcome development in terms of establishing standards to protect women seeking reproductive healthcare in Latin America, it has been criticized for failing to address the multiple human rights violations arising from El Salvador’s complete criminalization of abortion from a gender perspective. This entry builds upon the existing critique and will focus on the IACtHR’s findings regarding the right not to be subjected to torture, as enshrined in Article 5(2) of the American Convention on Human Rights (ACHR).

First, it will explain the facts of Manuela and how the IACtHR interpreted the right to be free from torture. It will then discuss the Court’s argumentative deficit in the legal analysis of the violation of Article 5(2), and the missed opportunity to apply the rule of exclusion of evidence obtained through torture.

The facts: Manuela was Tortured by El Salvador

On 26 February 2008, Manuela, a woman with limited economic resources, experienced an obstetric emergency due to severe preeclampsia. Physicians did not promptly treat her condition. Instead, on suspicion of having had an abortion, they reported her to the prosecution service. On February 28, 2008, while receiving medical care, Manuela was detained by the police. She was handcuffed to the hospital bed and interrogated without the presence of a lawyer. Based on this declaration and subsequent proof, Manuela was prosecuted for aggravated homicide and sentenced to 30 years in prison. Two years later, while in custody, she died of cancer after receiving inadequate medical treatment.

During the proceedings, Manuela’s representatives specifically argued that Manuela was handcuffed to the hospital bed after her obstetric emergency and also during her convalescence (par. 176). The plaintiffs held that such handcuffing reached the degree of torture “since it was intentional, motivated by gender, had the purpose of perpetuating the discriminatory stigma against people accused of abortion or homicide, and reflected the maximum degree of severity”. These allegations were supported by the testimony of Manuela’s father, who witnessed the torture inflicted upon his daughter.

The IACtHR concluded that handcuffing Manuela to the hospital bed after the obstetric emergency “amounted to a violation of the right not to be subjected to torture or cruel, inhuman or degrading treatment or punishment established in Article 5(2) of the ACHR” (par. 200). The Court found it unreasonable to assume that there was a real risk of flight, and relied on the European Court’s (ECtHR) caselaw, the Standard Minimum Rules for the Treatment of Prisoners, the Bangkok Rules, and statements by the United Nations Special Rapporteur on Torture. This was the Court’s first recognition of a state’s accountability for instances of torture in reproductive healthcare settings.

Nonetheless, the Court held there was insufficient evidence substantiating the allegation that Manuela was handcuffed and tortured while she was in a terminal state and receiving palliative care (par. 231).

Inconsistent Legal Reasoning in Torture and Gender-Based Violence Cases

Pursuant to the definition of Article 2 of the Inter-American Convention to Prevent and Punish Torture, the IACtHR has established that an act constitutes torture under Article 5(2) of the ACHR if it: i) is intentional; ii) causes severe physical or mental suffering; and iii) is committed with a given purpose. The Bueno Alves v. Argentina judgment first listed these elements. Following this legal reasoning, the IACtHR has recognized that gender-based violence, particularly sexual violence, can constitute torture in cases such as Women victims of sexual torture in Atenco v. Mexico, López Soto et al. v. Venezuela, Bedoya Lima et al. v. Colombia, and Valencia Campos et al. v. Bolivia.

In examining the elements of torture in gender-based violence cases, the Court has consistently evaluated the victim’s severe suffering and the aggressor’s discriminatory purpose. The IACtHR has asserted that such violence is committed with the aim to intimidate, subjugate, degrade, humiliate, punish, control, or assert power and patriarchal domination, thereby demonstrating a discriminatory purpose. In this context, the Court has underscored the vital role that discrimination plays in examining violations of women’s human rights and its relationship with torture and ill-treatment from a gender perspective. Moreover, the UN Special Rapporteur on Torture has stated that if an act can be shown to be gender-specific, the intent can be implied as such as well.

In Manuela, the IACtHR established that El Salvador was responsible for the violation of the right not to be subjected to torture for handcuffing Manuela to the hospital bed after experiencing an obstetric emergency. However, the Court disregarded its own caselaw and failed to analyze the three constitutive elements of torture, resulting in a lack of motivation that weakened an evident conclusion. The intent and purpose of torturing and humiliating Manuela were explicit, as the state authorities shackled her consciously under the discriminatory belief that women who fail to be mothers should be punished (par. 144). (This is the same stereotype that the Inter-American Commission on Human Rights argues to underpin the total ban on abortion in El Salvador.) Manuela’s severe suffering was also clear because she had recently lost her pregnancy and required immediate treatment for severe preeclampsia. Instead of prioritizing her medical care, the treating physician filed a criminal complaint against her, causing an unjustified delay in her treatment and subjecting her to grave physical and mental distress.

It is further questionable that the IACtHR did not delve into why handcuffing Manuela to the hospital bed while she was terminally ill did not amount to torture. Departing from its practice in cases with similar allegations, the Court refrained from providing reasons as to what is the burden of proof to demonstrate the torture and failed to analyze the charge in any manner. This is particularly suggestive given that Manuela’s father’s statement was the evidence used to support both allegations of handcuffing after the obstetric emergency and during the convalescence. However, due to the absence of motivation, it is unclear from this judgment why the Court found it to be enough evidence in one case and not in the other.

Therefore, in Manuela, the Court missed an opportunity to provide a motivation for a gender-inclusive analysis of Article 5(2) of the ACHR. A comprehensive examination of the elements of torture in the case would have shed further light on the stereotypes that sustain gender-based violence and ill-treatment in reproductive healthcare settings, setting a breakthrough for other similar cases, such as Beatriz et al. v. El Salvador, which contains different facts from the present case.

Failure to Address the Exclusionary Rule in Manuela’s Case

Additionally, Articles 10 of the Inter-American Convention to Prevent and Punish Torture and 15 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment establish that any statement obtained through torture or ill-treatment should not be admissible as evidence in any proceeding​. Article 8(3) of the ACHR also indicates that “[t]he defendant’s confession is only valid if made without duress of any kind.”

Based on these provisions, the IACtHR acknowledged in Cabrera García and Montiel Flores v. Mexico that whenever it is proven that any form of duress has interfered with the spontaneous expression of a person’s will, states have “the obligation to exclude that evidence from the judicial proceeding” (hereinafter “exclusionary rule”). Moreover, the IACtHR held that the exclusionary rule is also reflected in the prohibition on granting probative value to evidence derived from coercion.

In Omar Maldonado Vargas et al. v. Chile, the Court further considered that this rule has an absolute and non-derogable nature. Furthermore, in Garcia Cruz and Sanchez Silvestre v. Mexico and in García Rodríguez et al. v. Mexico, the Court stated that granting evidentiary value to statements or confessions obtained by coercion constitutes, in turn, an infringement of a fair trial. The ECtHR, the Committee Against Torture, and the Human Rights Committee have also recognized this rule and that relying on incriminating evidence obtained through means of torture or ill-treatment renders criminal proceedings unfair.

Notwithstanding the sufficient jurisprudence on the non-derogable nature of the exclusionary rule, in Manuela, the IACtHR did not discuss or rule on it. Although the Court acknowledged that Manuela was subjected to torture while she was handcuffed to the hospital bed where she was interrogated by the police, the Court evaded analyzing whether that declaration and the derived evidence from it should have been excluded from the judicial proceeding against her. This approach would have enabled the Court to determine that, since Manuela’s conviction was based on this declaration, the entire judicial proceeding against her was unfair. Moreover, a gender-sensitive analysis would have consolidated a coherent stance on the unlawful nature of criminalizing women who are still convicted after experiencing similar conditions to Manuela.

Concluding Remarks

The IACtHR’s analysis of the violation of Article 5(2) in Manuela lacked motivation, in spite of the legal precedents established by the Court in cases involving torture and gender-based violence. This limited the Court’s ability to address the stereotypes that underpin torture in reproductive healthcare settings, and constituted a missed opportunity to establish a consistent standard to apply the rule of exclusion of evidence in similar cases.

Photo: ‘Reunión Presidente de la CorteIDH con el Tribunal Europeo y la Corte Africana’ (CorteIDH, 2018)