Decision; Subjects: MEXICO, TORTURE AND OTHER CRUEL TREATMENT; [CAT: UNO-Antifolterkonvention, Übereinkommen gegen Folter; Convention contre la torture; Convenzione contro la tortura]
Volltext (verifizierbarer Originaltext)
GE.25-07270 (E) 250725 280725
Committee against Torture
Decision adopted by the Committee under article 22 of the
Convention, concerning communication No. 1102/2021*, **
Communication submitted by:
Ángel Daniel Bautista Vásquez (represented by
counsel, Maurilio Santiago Reyes, of the Centro
de Derechos Humanos y Asesoría a Pueblos
Indígenas)
Alleged victim:
The complainant
State Party:
Mexico
Date of complaint:
29 April 2020 (initial submission)
Date of adoption of decision:
11 April 2025
Subject matter:
Torture; lack of effective investigation
Procedural issues:
Another procedure of international investigation
or settlement; exhaustion of domestic remedies
Substantive issues:
Torture and cruel, inhuman or degrading
treatment or punishment; duty to prevent acts of
torture; duty to ensure that the competent
authorities conduct a prompt and impartial
investigation
Articles of the Convention:
1, 2, 4, 6 and 11–14
1.1
The complainant is Ángel Daniel Bautista Vásquez, a national of Mexico born in
1999. The complainant claims to be a victim of a violation by the State Party of articles 1, 2,
4, 6 and 11–14. The complainant is represented by counsel, Maurilio Santiago Reyes,
president of the Centro de Derechos Humanos y Asesoría a Pueblos Indígenas (Centre for
Human Rights and Legal Advice for Indigenous Peoples).
1.2
The State Party has made the declaration under article 22 (1) of the Convention,
effective from 15 March 2002.
Facts as submitted by the complainant
2.1
On 21 March 2020 at around 7 a.m., the complainant, who is Indigenous Mixtec, left
his home in Tlaxiaco, in the State of Oaxaca, to go to his parents’ house. At 8 a.m. he left his
* Adopted by the Committee at its eighty-second session (7 April–2 May 2025).
** The following members of the Committee participated in the examination of the communication:
Todd Buchwald, Jorge Contesse, Erdogan Iscan, Peter Vedel Kessing, Liu Huawen, Maeda Naoko,
Ana Racu and Abderrazak Rouwane. Pursuant to rule 109, read in conjunction with rule 15, of the
Committee’s rules of procedure, and paragraph 10 of the guidelines on the independence and
impartiality of members of the human rights treaty bodies (the Addis Ababa guidelines), Claude
Heller did not participate in the examination of the communication.
United Nations
CAT/C/82/D/1102/2021
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.: General
9 July 2025
English
Original: Spanish
CAT/C/82/D/1102/2021
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parents’ house to set up his stall. At 3.30 p.m. he returned to his parents’ house. At 6.40 p.m.
he went to his home, which is owned by B.B., who he met when he arrived. At 7.30 p.m. the
complainant received a call from a friend, who asked to be picked up. At 8.20 p.m., the
complainant went with B.B. to pick up his friend at the agreed place, but could not find him.
The complainant called his sister to tell her that he was going to watch a cockfight and
afterwards would go to dinner with his parents.
2.2
At 9.40 p.m., the complainant left the cockfight with B.B., who was to drive him to
his parents’ house. At around 9.45 p.m., as B.B. was drawing up outside the complainant’s
parents’ house, they heard the siren of a police patrol car signalling them to make way. B.B.
remarked that the police wanted him to make way and pulled over 30 metres from the
complainant’s parents’ house. The complainant got out of the vehicle and, as he closed the
door, heard gunshots and felt a pain in his left leg and a strange sensation in his whole body.
Immediately four police officers rushed towards him. One of the officers cuffed his hands
behind his back while the others pushed him to the ground. The complainant recognized one
of the officers as one of his neighbours. They picked him up and took him to nearby
wasteland, where they threw him to the ground. Another of the officers, whom he also
recognized, sat on him, grabbed his hair and said to him “I’ll fuck you up. Say you fired on
us, you bastard, or we’ll kill you.” When the complainant did not respond, the police officer,
angered, stood up and pressed his boot down on the complainant’s nose and mouth, causing
him extreme pain and preventing him from breathing, while saying “now you’re fucked,
we’re going to kill you, you bastard”. The complainant felt a very painful blow with the butt
of a gun to his right leg. He then received approximately four harder blows to both legs.
When he cried out in pain, the officers shouted “shut up, you bastard!” He was kicked in
different parts of his body until he lost consciousness. He did not regain consciousness until
the following day, 22 March 2020, in hospital, in the presence of his father. He was
hospitalized until 24 March, when he was transferred to a clinic to undergo surgery for
gunshot fractures in his left leg and a fractured bone in his right leg. The medical records
show that the complainant reported having been attacked by persons who had struck him in
the head, abdomen, thorax, legs and right thigh, and that he had been shot. It is stated that the
complainant’s injuries included fractures to the left tibia and right femur and a wound to the
lower lip and that he experienced moderate chest pain.1
2.3
The complainant states that he was deprived of his liberty from the time of the attack
on 21 March 2020 until 23 March 2020, during which time he was in the custody of his
assailants, who were officers of the Tlaxiaco municipal police. At the hospital, he was handed
over to the Public Prosecution Service and was formally released on 23 March 2020.2
2.4
On 22 March 2020, the complainant’s mother reported the attack on her son to the
state prosecutor’s office. On 24 March 2020, she filed a complaint regarding the same
incident with the Office of the Oaxaca Human Rights Ombudsman. On 2 April 2020, the
complainant filed a complaint of torture with the state prosecutor’s office.
2.5
On 3 July 2020, the Inter-American Commission on Human Rights received a request
for precautionary measures. Two weeks later, the Commission ordered measures in favour
1 According to the referral from the Tlaxiaco Rural Hospital of the Mexican Social Security Institute,
dated 23 March 2020, the complainant presented “a wound in the lower lip, sutured; thorax with pain
in the left ribs … right lower limb with deformity of the right thigh, crepitus, shortening and external
rotation of the limb … wound to left lower limb … right femur with multifragmentary fracture lines
… and lateral left tibia with multifragmentary fracture lines”. According to the discharge note of
1 April 2020 from the San Antonio clinic, the complainant presented “a wound in the lower lip, now
sutured … normolinear thorax with moderate pain … left leg with wound to the anterolateral surface
of the tibia … right leg with pain on movement and fractured femur … hip X-ray showing
multifragmentary fracture lines at the level of the right (subtrochanteric) femur with valgus angulation
and slight overlap; tibia X-ray showing left tibia fracture line without angulation”.
2 In his subsequent comments, the author maintains that he was released pursuant to an official letter of
24 March 2020 and he clarifies the reason for his deprivation of liberty (see para. 5.1 below).
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of the complainant and his family.3 The complainant points out that he has not applied for
the Commission to rule on the merits of his case.
2.6
On 10 August 2020, the complainant requested that the federal Prosecutor General’s
Office take over the investigation from the Office of the Prosecutor General of the State of
Oaxaca. The complainant argued that, contrary to the Act on the Prevention, Investigation
and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
of the State of Oaxaca, the requirement to establish a special prosecutor’s office had not been
met and that, consequently, his complaint of torture was not being investigated by special
prosecutors with the support of specialized experts, and there were no personnel trained in
the application of the Manual for the Effective Investigation and Documentation of Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). On
24 August 2020, this request was refused on the grounds that the competent authority to
continue the investigation was the Oaxaca Prosecutor General’s Office.
2.7
On 11 March 2021, the Special Investigation Unit for Crimes of Torture of the Oaxaca
Prosecutor General’s Office declined jurisdiction and referred the case to the Special
Prosecutor for Crimes of Social Importance, also of the Oaxaca Prosecutor General’s Office,
on the grounds that the case related to attempted homicide rather than torture. At the same
time, the Special Investigation Unit stated that the investigation file had been opened on
22 March 2020 and that it had carried out several investigative measures in accordance with
the Istanbul Protocol.4
2.8
On 12 October 2021, experts from the Oaxaca Prosecutor General’s Office issued a
report on the application of the Istanbul Protocol in which they concluded that the
complainant had indeed suffered torture.5 According to the complainant, this report proves
that he was tortured.
2.9
The complainant claims that he has been physically unable to work for a year as a
result of the torture and police aggression he experienced, and that during this time he has
incurred medical expenses.6
2.10
The complainant alleges that he and his family are being watched and followed and
that municipal police officers have tried to threaten and intimidate them on several occasions,
including by constantly driving past his home. He reports that on 11 April 2020, a municipal
police patrol car carrying several armed officers parked in front of his house and that the
officers fired a shot into the air before leaving. Three days later, a man who was not a local
resident was seen talking on the telephone and taking photographs in front of the
complainant’s home. On 25 April 2020, another individual was seen talking on the telephone
outside the complainant’s home, for around 10 minutes. On 12 May 2020, a person carrying
a gun in his belt approached the complainant’s father in the street, about 100 metres from his
home, and said: “You’re Ángel Daniel’s dad, right? Tell your son to take it down a notch, or
we’ll finish him off and your family, too.” On 20 June 2020, a municipal police patrol car
went past the complainant’s brother’s store at high speed, not in pursuit of another vehicle,
and gunshots were heard. Following these incidents, the complainant, his brother and his
father filed complaints with the state prosecutor’s office. However, the threats and the
harassment continued and, on 9 May 2021 at around 7 p.m., the same municipal police patrol
car that had been used by the officers who tortured the complainant stopped for a few minutes
outside his brother’s house.7 As stated above, in July 2020, the Inter-American Commission
3 Inter-American Commission on Human Rights, resolution 38/2020, precautionary measure
No. 636-20, 18 July 2020.
4 Among other documents, the complainant obtained a medical certificate, issued by an expert of the
Oaxaca Prosecutor General’s Office, in which his injuries are described on the basis of clinical
examinations carried out at the Mexican Social Security Institute hospital and the San Antonio clinic.
The clinical records are in the file but the medical certificate issued by the Oaxaca Prosecutor
General’s Office is not.
5 Oaxaca Prosecutor General’s Office, experts’ report on the application of the Istanbul Protocol in
regard to Mr. Bautista Vásquez, 12 October 2021.
6 The complainant provides medical bills.
7 According to information received from the parties, the complainant’s brother was found dead in
August 2024.
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on Human Rights accepted a request for precautionary measures in favour of the complainant
and his family.
Complaint
3.1
The complainant claims to have suffered torture as a result of acts committed by
officers of the Tlaxiaco municipal police.8
3.2
The complainant claims that he has exhausted available domestic remedies, as more
than a year has elapsed since he filed a formal complaint of torture but no steps have been
taken to investigate the facts. The complainant also points out that no medical expert was
appointed to draw up a report on his injuries, and nor was the Istanbul Protocol applied,
within one month of his being tortured.9
3.3
The complainant indicates that, despite the adoption in December 2017 of the Act on
the Prevention, Investigation and Punishment of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of the State of Oaxaca, which stipulates that the Oaxaca
Prosecutor General’s Office must establish a special prosecutor’s office to receive complaints
and investigate and prosecute the offences foreseen in the Act, such a prosecutor’s office has
yet to be established. As a result, acts of torture reported by victims are not investigated by
special prosecutors with the support of specialized experts, and there are no personnel trained
to apply the Istanbul Protocol.
3.4
The complainant argues that the decision of the Special Investigation Unit for Crimes
of Torture of the Oaxaca Prosecutor General’s Office to decline jurisdiction and refer the
investigation file to the Special Prosecutor for Crimes of Social Importance, on the basis that
it did not believe that an offence of torture had been committed, is proof of the State Party’s
refusal to properly investigate this offence.
3.5
The complainant explains that the State Party has seen increased violence in recent
years, including extrajudicial killings, homicides, kidnappings, trafficking in persons,
enforced disappearances, uprisings and torture. According to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment, torture is generalized
in Mexico, occurs especially between the moment of arrest and the detainee’s being brought
before a judge, and is used as punishment and as a means of investigation.10 The State of
Oaxaca is composed of 570 municipalities and eight regions and is inhabited by
18 Indigenous Peoples. The most vulnerable groups are the Mixtec and Triqui Indigenous
Peoples, whose human rights are violated by federal, state and municipal authorities. The
town of Tlaxiaco, where the events described in this communication took place, has a large
Mixtec and Triqui Indigenous population.
State Party’s observations on admissibility and the merits
Investigative measures
4.1
The State Party submitted its observations on admissibility and the merits on
11 August 2022. It explains that, on 22 March 2020, an investigation was opened into six
persons suspected of the offence of torture committed against the complainant.
4.2
The investigation is currently at the initial stage, and the following actions have been
taken: on 11 April 2020, the complainant underwent a medical examination; in May 2020,
the state prosecutor’s office in Tlaxiaco sent the investigation file to the Special Investigation
Unit for Crimes of Torture in order to optimize the investigation and determine how to
proceed; on 4 May 2020, an expert from the Institute of Expert Witness Services of the
Oaxaca Prosecutor General’s Office issued a medical certificate;11 on 17 July 2020, the
8 The complainant does not provide details on specific violations of articles 1, 2, 4, 6 and 20–22 of the
Convention. He considers that the communication Ramírez Martínez et al. v. Mexico
(CAT/C/55/D/500/2012), which concerned arbitrary detention and torture, is applicable to his case,
but does not give additional details.
9 The author states that the Istanbul Protocol was applied on 12 October 2021.
10 A/HRC/28/68/Add.3.
11 The State Party does not provide this certificate.
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complaint was accepted and the complainant’s father and sister were interviewed; on 20 July
2020, a visual inspection of a pair of trousers worn by the complainant was carried out; on
25 July 2020, protection measures were ordered and an official letter was sent to the Oaxaca
State Police Commissioner requesting him to appoint officers to conduct home surveillance
for the complainant and his relatives; on 7 August 2020, a letter was sent to the Directorate
for Victim Services requesting that it provide psychological care to all victims in the present
case; on 8 August 2020, the Institute of Expert Witness Services issued a forensic chemical
report and, on 14 September 2020, a report on the medical re-evaluation of injuries;12 on
17 September 2020, the Institute carried out a psychological assessment of the complainant;
and, on 25 September 2020, the Director of Victim Services signed a letter in which she
stated that psychologists from her Directorate had gone to the District of Tlaxiaco several
times to interview the victims in the present case and provide them with counselling, which
they had refused. Lastly, on 7 October 2020, an expert from the Institute of Expert Witness
Services issued a genetics report.13
4.3
A series of important investigative measures were carried out in 2021. On 11 March,
a prosecutor from the Special Investigation Unit for Crimes of Torture issued a decision to
refer the investigation file to the Special Prosecutor for Crimes of Social Importance on the
grounds that the Unit was not competent to continue the investigation because, according to
her legal analysis, the conduct under investigation was subsumed under the offence of
attempted homicide and not torture. On 20 May, an inter-institutional working meeting was
held with the participation of the victims, at which the Oaxaca Prosecutor General’s Office
offered to provide them with psychological support, which was accepted; the same day, an
official letter was sent to the Deputy Prosecutor General for Victim and Social Services
requesting that psychological support be provided to the complainant and his relatives. On
25 May, more than a year after the events were reported, the state investigation agency was
ordered to locate and interview eyewitnesses, draw up physical descriptions of the accused
and conduct an Internet and social media investigation. On 26 May, the San Antonio clinic
in Tlaxiaco forwarded the complainant’s clinical file to the investigating prosecution service.
On 28 May, the complainant and two witnesses were interviewed, the Director of Municipal
Public Security of the District of Tlaxiaco endorsed, signed and dated a report, and the
Tlaxiaco Rural Hospital of the Mexican Social Security Institute forwarded the complainant’s
clinical file to the investigating prosecution service. On 1 June, prosecutors from the state
investigation agency endorsed a report providing information on the accused.14 On 2 June the
complainant was interviewed and, on 3 June, the Director of Intelligence and Crime Policy
endorsed a report providing identification records on the accused. On 2 July, prosecutors
from the state investigation agency submitted an open-source report concerning several social
media posts related to the events under investigation. On 12 October, a report on the
application of the Istanbul Protocol, endorsed by medical and psychological experts from the
Institute of Expert Witness Services of the Oaxaca Prosecutor General’s Office and including
the finding that the complainant had been tortured, was issued to the complainant. On
18 November, the Office of the Special Prosecutor for Crimes of Social Importance declared
itself incompetent to pursue the investigation and returned the file to the Special Investigation
Unit for Crimes of Torture for the continuation of proceedings.
4.4
The most significant investigative measures taken in 2022 were as follows: on
9 March, the complainant’s mother made a statement in which she gave a more extensive
account of events and indicated that no incidents had occurred since the state police had been
patrolling in the vicinity of the family’s homes; on 28 April, the Director of Legal Affairs of
the state police endorsed a report which, in short, indicated that the Directorate of Legal
Affairs of the state Ministry of Public Security had loaned firearms to the District of
Tlaxiaco;15 on 6 May, an official letter was sent to the Director of Expert Witness Services
requesting a ballistics report on the evidence found at the scene of the incident; and on
21 July, a reminder letter was sent to the coordinator of the state investigation agency
12 The State Party does not provide these documents.
13 The State Party does not provide this report.
14 The State Party does not provide this report or explain what information it contains.
15 The State Party does not explain in greater detail the relevance of this investigative measure.
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requesting that it obtain the addresses of the accused,16 while another letter was sent to the
State Police Commissioner requesting the handover of several firearms that had been in the
possession of the accused.
4.5
Important investigative measures were taken on unspecified dates. A collaborative
investigation letter was sent to the state investigation agency of Tlaxiaco and a reminder letter
to the coordinator of the state investigation agency requesting it to issue instructions to the
District of Tlaxiaco police commander and to interview two witnesses. An official letter was
sent to the State Police Commissioner requesting him to provide the prosecution service with
detailed information on the steps taken to implement the protection measures ordered for the
complainant and his family, including the necessary proof of the measures taken. Letters
were sent to the head of the San Antonio clinic in Tlaxiaco and the Director of the Tlaxiaco
Rural Hospital of the Mexican Social Security Institute requesting that the complainant’s
clinical files be transmitted to the prosecution service. A letter was sent to the district
authorities, requesting information on the appointments of the Tlaxiaco police officers who
had been active at the time of the events, as well as certified copies of police logbooks, duty
rosters, records of individuals presented to the judicial authorities, incident reports,
standardized police reports and folio numbers of national arrest records. A visual inspection
was carried out at the scene and in the vicinity of the events described by the complainant,
and letters were sent to the Director of Expert Witness Services, requesting him to appoint a
forensic anthropologist to analyse an apparent bone fragment and a chemical expert to
analyse a “pair of blue denim trousers with a reddish stain”. A letter was also sent to state
prosecutor’s office in Tlaxiaco, requesting it to submit a report and to surrender the firearm
that, according to investigation records, had been seized from the complainant. Further
requests were made to the state prosecutor’s office in Tlaxiaco to forward the investigation
file and to hand over the .357 calibre firearm and the ballistic evidence obtained by the
Tlaxiaco municipal police so that forensic experts might conduct ballistics comparisons.
4.6
The complainant and his legal counsel have at all times had access to the investigation
file and been kept informed of the status of investigations. The investigation that was opened
into the complainant as the likely perpetrator of the offence of dangerous assault, committed
against Tlaxiaco municipal police officers, remains at the initial stage.
Protection measures
4.7
On 25 July 2020, protection measures were ordered for the complainant and his
family, consisting of police surveillance of their homes. On 25 May 2021, a public
prosecutor, a social worker and a psychologist interviewed the complainant and his family at
their home and a timetable was agreed for providing them with psychological assistance. On
11 June 2021, an interdisciplinary team again went to the home of the complainant and his
family and provided them with an initial psychotherapy session. It was observed that one of
the complainant’s brothers refused the therapy, stating that he was well.
Admissibility and the merits of the communication
4.8
The State Party argues that the communication should be declared inadmissible for
failure to exhaust domestic remedies, as the complainant has not sought a legal remedy for
alleged violations of due process. The complainant has not been deprived of his right to
challenge an act by an authority through the legally established remedies.17 The investigation
that was opened into the offence of torture is still in process, and many investigative measures
are being taken in order to be in a legal position to bring the accused before the courts. In the
present case, there has been no unjustified delay in the investigation, as the authorities have
taken significant investigative actions and are working diligently towards its prompt
conclusion.
4.9
On the merits, the State Party contends that it has not violated the complainant’s rights
to life, liberty and security of person. The burden of proving the existence of prima facie
evidence of cruel, inhuman or degrading treatment is borne by the complainant, who must
16 The State Party does not provide information on the whereabouts of the police officers.
17 The State Party does not specify what these remedies would be.
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present an arguable case, that is, submit substantiated arguments showing that he has been
subjected to torture or cruel treatment.18 The State Party highlights that the complainant has
not been detained or held in custody by officials of the Oaxaca Prosecutor General’s Office
or members of the District of Tlaxiaco municipal police. It points out that a criminal
investigation must seek to determine the nature and circumstances of the alleged acts and to
establish the identity of any person who may have been involved therein.19 The State Party’s
obligation to investigate is not an obligation of result, but of means, and the Committee’s role
is to assess whether the authorities of the State Party have taken reasonable steps to conduct
an investigation that is capable not only of establishing the facts, but also of identifying and
punishing those responsible.20 The fact that an investigation has been opened into six persons
suspected of perpetrating the offence of torture against the complainant demonstrates that the
State Party has the appropriate mechanisms in place to investigate that offence and that the
investigation is being conducted promptly and thoroughly by the competent authorities.
Complainant’s comments on the State Party’s observations on admissibility and the
merits
5.1
In his comments of 19 September 2022, the complainant again claims that he was
arrested on 21 March 2020. The complainant refers to a warrant of commitment issued by a
public prosecutor to the municipal police, dated 22 March 2020, according to which he was
to be detained for dangerous assault with firearms discharge and other offences to be
determined, perpetrated against municipal police officers, until such time as his legal
situation was resolved. The complainant also refers to an official letter of 24 March 2020
from a public prosecutor to the municipal police, which stated that the complainant’s pretrial
detention was not warranted at that time and that he could be released subject to the
conditions provided for by law. The complainant also provides photographs which, according
to him, are of municipal police officers guarding him at the Mexican Social Security Institute
hospital in Tlaxiaco.
5.2
The complainant indicates that the reporting physician from the Mexican Social
Security Institute stated on 21 March 2020 in his notification to the Public Prosecution
Service that the reason for consultation was an apparent gunshot wound and facial bruising.21
5.3
The complainant refers to a statement made by a municipal police officer to the Public
Prosecution Service on 22 March 2020, in which he declared that, on 21 March 2020, he and
another municipal police officer had arrested the complainant and handed him over to the
Public Prosecution Service. This person also stated that, in order to arrest the complainant,
he struck him with a baton on the right leg.
5.4
The complainant argues that the State Party accepts that torture was committed, since
it acknowledges the results of the application of the Istanbul Protocol. The complainant also
refers to a letter signed by the Tlaxiaco local police commander regarding the inspection of
the scene of the incident, which details the discovery of a bone fragment, and another letter
containing the report of the forensic geneticist. In the medical certificate of 4 May 2020 and
the medical re-evaluation report of 14 September 2020, the medical expert of the Prosecutor
18 The State Party refers to E.L.G. v. Spain (CAT/C/68/D/818/2017), para. 8.4. It underscores that the
Committee found that the established facts of that case constituted, as a minimum, cruel, inhuman or
degrading treatment, as it had been objectively established that the complainant had been picked up
by an ambulance from the entrance to the police station immediately after her release and that her
nose was broken.
19 The State Party refers to Kirsanov v. Russian Federation (CAT/C/52/D/478/2011), para. 11.3.
20 The State Party refers to Zentveld v. New Zealand (CAT/C/68/D/852/2017), para. 9.2.
21 According to the notification, the complainant was brought in unconscious and “smelling of alcohol;
Glasgow scale not assessable, pupils pinpoint and hyporeactive; oral mucosa hydrated; wound on
lower lip measuring approximately 3 cm; neck cylindrical with no sign of swollen lymph nodes;
thorax with rhythmic heart sounds, pulmonary fields with bilateral bronchoalveolar murmur and no
additional cardiopulmonary findings; abdomen flat, soft and depressible, peristalsis present with no
signs of peritoneal irritation, no palpable megalias or plastrons; left lower limb with wound with
compress applied, dorsalis pedis and popliteal pulses present, rest of system without additional
findings; X-rays showing multifragmentary fracture of left tibia, anteroposterior view of skull and
thorax without evident bone lesions”.
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General’s Office noted, among other things, that the complainant had scars on his lip, legs
and other parts of his body.
5.5
Regarding the investigation that was opened into the complainant as the likely
perpetrator of the offence of dangerous assault committed against municipal police officers,
the complainant states that on 13 April 2020, the Public Prosecution Service ordered a
temporary suspension of proceedings owing to the lack of sufficient information or evidence
to support lines of investigation into the facts, considering, moreover, that insufficient
evidence had been found to suggest that the criminal offence of dangerous assault with a
firearm had taken place.
5.6
As for the State Party’s argument that domestic remedies have not been exhausted,
the complainant reiterates that he filed a criminal complaint for the offence of torture on
2 April 2020 and that there has been an unreasonable delay because – although the State Party
claims to have taken various steps – the investigation has not yet led to a prosecution.
Additional submissions by the State Party
6.1
The State Party submitted additional observations on 6 December 2024, 29 January
2025 and 3 February 2025.22 The State Party asserts that the complainant filed a criminal
complaint with the state prosecutor’s office in Tlaxiaco on 12 April 2024, alleging that he
had been the victim of threats. Consequently, an investigation was opened into alleged acts
of torture. This case is being processed by the Special Investigation Unit for Crimes of
Torture, which is close to bringing a prosecution.
6.2
The State Party reports that the investigation into the Tlaxiaco municipal police
officers is ongoing and that measures have recently been taken. On 27 September 2023, an
official letter was sent to the coordinator of the state investigation agency requesting it to
search for and locate B.B. so that he could be interviewed in connection with the events under
investigation. Several forensic ballistics reports were issued in a letter of 11 October 2023.
On 27 January 2024, a letter was sent to the State Police Commissioner requesting him to set
a date and time for the handover of various firearms to the state investigation agency so that
they could be transferred to the Institute of Expert Witness Services for comparison with the
ballistic evidence recovered from the scene. On various dates between September and
November 2024, officials of the state investigation agency transferred several firearms to the
Special Investigation Unit for Crimes of Torture, so that they could be sent to the Institute of
Expert Witness Services for the appropriate forensic and comparative analyses. The firearms
in question had been loaned to the Tlaxiaco municipal police at the time of the events. The
investigation file is awaiting only the expert report comparing the ballistic evidence
recovered from the scene with the firearms that had been in use with the Tlaxiaco municipal
police in order to determine whether any of the recovered ballistic evidence could have been
fired from the weapon that, according to the police officers, the complainant used against
them. The findings of the report will be crucial for building the theory of the case.
6.3
The State Party points out that the complainant is the beneficiary of a precautionary
measure granted by the Inter-American Commission on Human Rights and that the same
facts and violations were alleged in those proceedings. Since the granting of the precautionary
measures, the State Party has carried out actions in the areas of investigation, victim support
and consultation with the beneficiaries and their legal representatives. The State Party points
out that the protection measures in the complainant’s favour remain active and in force.
Security patrols and surveillance have been conducted in the vicinity of the home of the
complainant and his family, who have been provided with emergency numbers. The
complainant and his family have stated that there have been no incidents that endangered
their physical integrity. The State Party also reports that, in implementing the precautionary
measure ordered by the Inter-American Commission on Human Rights, it has prioritized
consensus with the complainant on the support provided and has held working meetings to
that end. At the meeting of 13 March 2024, the authorities were informed of alleged risk
situations which had not been reported to the Prosecutor General’s Office, and an
22 This part is a summary of the additional information submitted by the State Party on these dates.
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investigation was opened for the offence of threats. At another meeting, the complainant was
presented with two cheques for medical expenses.
Additional submissions by the complainant
7.1
The complainant submitted additional comments on 11 and 26 April and 7 October
2024 and 2 and 30 January and 6 February 2025.23 In his comments, he alleges that the State
Party has failed to comply with its obligations under articles 12 and 13 of the Convention and
has violated article 2, read alone and in conjunction with articles 1 and 11–14 of the
Convention. The complainant requests the Committee to declare the communication
admissible and to decide on the merits. In particular, he requests that an impartial, thorough,
effective and independent investigation be initiated into the acts of torture; that the persons
responsible be prosecuted and punished appropriately; that full reparation, including fair and
adequate compensation and rehabilitation, be provided to the victims; that a public apology
be issued to him and his relatives; that the Committee’s decision be published and widely
disseminated; and that the necessary measures be adopted to guarantee non-repetition.
7.2
The complainant states that, on 12 April 2024, he made an appearance before the state
prosecutor’s office in Tlaxiaco regarding the surveillance and threats to which he and his
family were subjected after he was tortured.
7.3
The complainant clarifies that the investigation that was opened in 2024, to which the
State Party refers (see para. 6.1 above), does not concern the offence of torture, but that of
threats. The investigation into the offence of torture is again being processed by the Special
Investigation Unit for Crimes of Torture, the Office of the Special Prosecutor having declared
itself incompetent in November 2021.
7.4
The complainant reiterates that, in his request to the Inter-American Commission on
Human Rights for precautionary measures, he did not make the same claims as are contained
in this communication.
7.5
With respect to investigative measures, the complainant argues that there has been an
unreasonable delay, as more than four years have elapsed without the investigation leading
to a prosecution.
Issues and proceedings before the Committee
Consideration of admissibility
8.1
Before considering any complaint submitted in a communication, the Committee must
decide whether it is admissible under article 22 of the Convention.
8.2
Under article 22 (5) (a) of the Convention, the Committee must not consider any
communications from an individual unless it has ascertained that the same matter has not
been examined under another procedure of international investigation or settlement. The
Committee notes that, on 18 July 2020, the Inter-American Commission on Human Rights
granted precautionary measures in favour of the complainant and his family. The Committee
takes note of the complainant’s argument that he has only filed a request for precautionary
measures and has not applied for the Commission to rule on the merits of his case. The
Committee notes that the State Party argues that the facts and violations described in the
request to the Commission are the same as those that have been alleged in the present
communication. The Committee notes that, in its decision, the Commission requests the State
Party to adopt the necessary measures to protect the rights to life and to personal integrity of
the complainant and his family, to agree on the measures that must be implemented with the
beneficiaries of the precautionary measure and their representative, and to report on the
actions taken in order to investigate the alleged incidents that led to the adoption of the
resolution.
23 This part is a summary of the additional information submitted by the complainant on these dates.
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8.3
The Committee has had occasion to refer to cases in which precautionary measures
have been requested before regional human rights bodies and has determined that
precautionary or provisional proceedings are separate from substantive ones. 24 The
Committee notes that the Inter-American Commission on Human Rights did not examine the
merits of the case when adopting its measures and therefore considers that those proceedings
do not constitute an examination of the matter within the meaning of article 22 (5) (a) of the
Convention.25 In such circumstances and in the absence of information indicating that the
same matter has been or is being examined under another procedure of international
investigation or settlement, the Committee considers that the complaint is admissible under
article 22 (5) (a) of the Convention.
8.4
The Committee notes that the State Party challenges admissibility on the grounds that
domestic remedies have not been exhausted, as the complainant has not sought a legal remedy
for alleged violations of due process. The State Party argues that there has been no unjustified
delay in the processing of this case because multiple investigative measures have been carried
out and the authorities are working to conclude the investigation promptly. However, the
State Party does not indicate what legal remedies are available to the complainant. Moreover,
on at least two occasions the bodies in charge of the investigation have declared themselves
incompetent. The Committee recalls that, according to the Convention, the rule on the
exhaustion of domestic remedies does not apply where the application of those remedies is
unreasonably prolonged. In this case, the investigation is still open after more than five years.
Taking into account the time that has elapsed and the numerous steps that the State Party has
taken, it is unlikely that the complainant will obtain, in the words of the Convention, effective
relief. The Committee therefore concludes that the communication is also admissible under
article 22 (5) (b) of the Convention.
8.5
The Committee takes note of the complainant’s claims that the State Party has failed
to comply with its obligations under articles 2, 4, 6, 11, 14, 20 and 21 of the Convention.
However, the Committee considers that the complainant has failed to sufficiently substantiate
these claims for the purpose of admissibility and finds them inadmissible under article 22 (2)
of the Convention.
8.6
However, the Committee considers that the complainant’s claims under articles 1, 12
and 13 of the Convention are sufficiently substantiated for the purpose of admissibility and
thus declares them admissible and proceeds to its consideration of the merits.
Consideration of the merits
9.1
The Committee has examined the present complaint in the light of all the information
submitted to it by the parties, in accordance with article 22 (4) of the Convention.
9.2
In relation to articles 12 and 13 of the Convention, the Committee takes note of the
complainant’s claims of an unreasonable delay in the investigation.
9.3
The Committee recalls that, wherever there is reasonable ground to believe that an act
of torture has been committed, the competent authorities must proceed to a prompt and
impartial investigation. As regards the existence of prima facie evidence of torture or cruel,
inhuman or degrading treatment, the Committee recalls, too, that the burden of proof is borne
by the complainant, who must present an arguable case, that is, submit substantiated
arguments showing that he has been subjected to torture or cruel treatment.26 In the present
case, the Committee notes that the complainant alleges that he was tortured on 21 March
2020 and that he complained about the alleged torture to the state prosecutor’s office on
2 April 2020, his mother having already complained to the state prosecutor’s office on
22 March 2020 and to the Office of the Oaxaca Human Rights Ombudsman on 24 March
2020. The Committee takes into account that the complainant was hospitalized after the
alleged torture and that the clinical records show that he suffered injuries. The Committee
24 Guerrero Sánchez and Hernández Colmenarez v. Bolivarian Republic of Venezuela
(CAT/C/54/D/456/2011), para. 5.2.
25 Human Rights Committee, F.F.J.H. v. Argentina (CCPR/C/132/D/3238/2018), para. 17.3.
26 E.L.G. v. Spain, para. 8.4. See also general comment No. 4 (2017) on the implementation of article 3
in the context of article 22, para. 38.
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notes the State Party’s assertion that, on the basis of the complainant’s allegations, the
authorities have been conducting an investigation into six individuals since 2020. The
Committee concludes that in the present case there is reasonable ground to believe that an act
of torture was committed.
9.4
The Committee recalls that an investigation alone is not sufficient to demonstrate the
State Party’s fulfilment of its obligations under article 12 of the Convention, if it can be
shown not to have been conducted promptly and impartially, and that promptness is essential
to ensure that the victim may not continue to be subjected to torture because, in general, the
physical traces of torture soon disappear.27 As the State Party indicates, an investigation is
not an obligation of result, but one of means, and the Committee must therefore assess
whether the authorities of the State Party have taken reasonable steps to conduct an
investigation that is capable not only of establishing the facts, but also of identifying and
punishing those responsible.28
9.5
The Committee notes that, in the present case, the complainant reported the torture
more than five years ago and that, notwithstanding numerous investigative measures, the
investigation is still ongoing. The complainant argues that there is an unreasonable delay in
the investigation. The State Party indicates that the national authorities opened the
investigation into six individuals on 22 March 2020, that is, the same day that the
complainant’s mother filed her complaint. The State Party describes the means of
investigation used and notes that the complainant underwent a medical evaluation on 11 April
2020 and that a report on the application of the Istanbul Protocol was issued on 12 October
2021. The State Party also describes the investigative measures taken between 2020 and
2024, information that has not been contested by the complainant.
9.6
The Committee notes that the State Party conducted the medical examination almost
three weeks after the complaint was made, and the examination in accordance with the
Istanbul Protocol more than a year and a half later. The State Party confirms that the report
under the Istanbul Protocol determined that the complainant had suffered torture, and advises
in its additional observations of 3 February 2025 that it is awaiting only the expert report
comparing various pieces of ballistic evidence in order to establish whether any of the
ballistic evidence recovered from the scene could have been fired from the weapon that,
according to the police officers, the complainant used against them. However, the State Party
does not explain why this procedure has taken so long or why, for a period of one year and
two months – between 21 July 2022 and 27 September 2023 – it took no action to advance
the investigation (see paras. 4.2–4.6 and 6.2 above).
9.7
The Committee notes that the unjustified delay means that the State Party has not
conducted a prompt investigation within the meaning of articles 12 and 13 of the Convention.
10.
The Committee, acting under article 22 (7) of the Convention, is of the view that the
facts before it reveal a violation of articles 12 and 13 of the Convention, read in conjunction
with article 1, to the detriment of the complainant.
11.
The Committee urges the State Party to: (a) conclude a prompt, impartial, thorough,
effective and independent investigation into the events in question with a view to the
prosecution and appropriate punishment of those responsible for the treatment inflicted on
the complainant; (b) provide the complainant with full redress, including fair and adequate
compensation and as full a rehabilitation as possible, depending on the outcome of the
investigation; (c) take the steps necessary to provide guarantees of non-repetition in
connection with the facts of the present complaint, including the publication of an extract of
this decision in local and state media; and (d) take all necessary measures to prevent any
threats or acts of violence to which the complainant or his family might be exposed, in
particular as a result of having lodged the present complaint.
27 Hoyos Henao et al. v. Mexico (CAT/C/75/D/893/2018), para. 9.7; and Gallardo Martínez et al. v.
Mexico (CAT/C/72/D/992/2020), para. 7.9. See also CAT/C/MEX/CO/7, para. 25.
28 Zentveld v. New Zealand, para. 8.2.
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12.
Pursuant to rule 118 (5) of its rules of procedure, the Committee requests the State
Party to inform it, within 90 days of the date of transmittal of the present decision, of the
steps it has taken to respond to the above observations.