A/HRC/WGAD/2011/61

GE.12-14445 (E) 230712 260712

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-second session, 16–25 November 2011

No. 61/2011 (Mexico)

Communication addressed to the Government on 5 September 2011

Concerning: Tomintat Marx Yu and Zhu Wei Yi

The State has been a party to the International Covenant on Civil and Political Rights

since 23 March 1981.

1.

The Working Group on Arbitrary Detention was established in resolution 1991/42 of

the former Commission on Human Rights. The mandate of the Working Group was

clarified and extended by Commission resolution 1997/50. The Human Rights Council

assumed the Working Group’s mandate by its decision 2006/102 and extended it for a

further three-year period in Council resolution 15/18 of 30 September 2010. Acting in

accordance with its methods of work, the Working Group forwarded to the Government the

above-mentioned communication.

2.

The Working Group regards deprivation of liberty as arbitrary in the following

cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c)

When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

United Nations

A/HRC/WGAD/2011/61

General Assembly

Distr.: General

12 June 2012

English

Original: Spanish

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(e)

When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth; national, ethnic or social origin; language;

religion; economic condition; political or other opinion; gender; sexual orientation;

disability or other status, and which aims towards or can result in ignoring the equality of

human rights (category V).

Submissions

Communication from the source

3.

Mr. Zhu Wei Yi, a naturalized Mexican and businessman, was arrested on 15 March

2007 without a warrant by federal investigators who claimed to have caught him in

flagrante delicto after he appeared at the home of a relative which was being searched in the

course of a police raid. He was kept in detention for 72 hours on the premises of the

Attorney-General’s Office. From 18 March 2007, he was held in detention in a preventive

custody (arraigo) centre of the Attorney-General’s Office in the Federal District. On 15

June 2007, he was transferred to Federal Social Rehabilitation Centre No. 1 (Altiplano),

where he remains deprived of his liberty.

4.

Mr. Tomintat Marx Yu, a businessman with dual Mexican and United States

nationality, was arrested on 19 April 2007 by Federal Prosecution Service officers of the

Special Unit for the Investigation of Health-related Offences after they had completed a

search of his home. He was held in detention for two days on the premises of the Special

Unit for the Investigation of Health-related Offences and, from 21 April 2007, in a

preventive custody centre of the Attorney-General’s Office in the Federal District. On 15

June 2007, he was transferred to Federal Social Rehabilitation Centre No. 1 (Altiplano),

where he remains deprived of his liberty.

5.

On 15 March 2007, Mr. Zhu Wei Yi and Mr. Tomintat Marx Yu, were working at

their respective businesses, H.K. Comercializadora and Comercial Tams, respectively

located at No. 22 and No. 25 (that is, across the road from one another) Calle Dolores, in

Colonia Centro, Mexico City. On that day, Mr. Erick Raymundo Campos, an employee of

the husband of Ms. Tomoiyi Marx Yu, the sister of Mr. Tomintat Marx Yu and sister-in-

law of Mr. Zhu Wei Yi, came to tell them that the police were at that moment raiding the

home of Ms. Tomoiyi Marx Yu.

6.

Mr. Zhu Wei Yi and Mr. Tomintat Marx Yu, concerned about the safety of Ms.

Tomoiyi Marx Yu and her son, 7-year-old Ziming Ronald Ye Marx, who were in the raided

house, went with Mr. Erick Raymundo Campos to the house, located at No. 515 Calle

Sierra Madre, in Colonia Lomas de Chapultepec, Mexico City. The source stated that the

search had been triggered by an investigation into the activities of Mr. Zhenli Ye Gon, Ms.

Tomoiyi Marx Yu’s husband, in connection with crimes against health and organized

crime. Mr. Tomintat Marx Yu is Mr. Zhenli Ye Gon’s brother-in-law.

7.

After Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi arrived at the raided house, Mr.

Tomintat Marx Yu was allowed to leave it accompanied by his nephew, the child Ziming

Ronald Ye Marx. However, Mr. Zhu Wei Yi and Mr. Erick Raymundo Campos were

forced to remain in the house. At 9 p.m. on 15 March 2007, they were informed that they

were under arrest.

8.

Mr. Zhu Wei Yi was arrested by federal investigators, who transferred him to the

federal prosecutor attached to the Office of the Assistant Attorney-General for Organized

Crime Investigations. The reason given for the arrest was that the detainee had been caught

in the act of participating in organized crime and operations conducted with funds of illicit

origin. Mr. Zhu Wei Yi was charged with possession of foreign currency found in his sister-

in-law’s house. Mr. Zhu Wei Yi is the brother-in-law of Mr. Zhenli Ye Gon’s wife.

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9.

Mr. Zhu Wei Yi was informed that he would be kept in custody for 48 hours, from 9

p.m. on 15 March to 9 p.m. on 17 March 2007. However, the source states that Mr. Zhu

Wei Yi was not released after 48 hours, but instead held for a further 24 hours in the

facilities of the Attorney-General’s Office in the Federal District in order to give a judge

time to examine a request by the Federal Prosecution Service to authorize his placement in

preventive custody. At around 9 p.m. on 18 March 2007, the federal prosecutor ordered Mr.

Zhu Wei Yi’s release, only to proceed with his immediate rearrest in line with the decision

by the Fifth District Criminal Court of the Federal District to grant the request for

preventive custody.

10.

The sum of US$ 207 million was confiscated from Mr. Zhenli Ye Gon. Having

spent 72 hours held in detention by the Special Unit for the Investigation of Crimes against

Health of the Office of the Assistant Attorney-General for Organized Crime Investigations,

Mr. Zhu Wei Yi was transferred, on 18 March, to the preventive custody centre of the

Attorney-General’s Office in Colonia Doctores, Cuauhtémoc Municipality, in the Federal

District, where he remained until 15 June 2007. In other words, he was kept in preventive

custody for 88 days by court order, in addition to 2 days of arrest under a warrant issued

against him.

11.

On 20 March 2007, Ms. Tomoiling Marx Yu, Mr. Zhu Wei Yi’s sister-in-law, filed

an application for amparo against the preventive custody order, which was granted by the

Fourteenth District Criminal Amparo Court of the Federal District. The Federal Prosecution

Service, however, managed to have the decision overturned, rendering the remedy

ineffective. The court was of the view that article 12 of the Federal Act on Combating

Organized Crime violated articles 14, 16, 19 and 21 of the Constitution, because none of

those articles allowed for the restriction of liberty for more than 96 hours for the purpose of

carrying out a preliminary inquiry, and because there was no provision for preventive

custody in the Constitution. Consequently, the court that had issued the original order

granting preventive custody had to issue a new ruling rescinding it.

12.

The federal prosecutor of the Special Unit for the Investigation of Crimes against

Health and the Federal Prosecution Service of the Fourteenth District Criminal Amparo

Court to appeal for judicial review in the light of the amparo thus granted. In the source’s

view, the sole aim of the application for judicial review was to delay the execution of the

amparo earlier granted and ensure that Mr. Zhu Wei Yi remained in preventive custody.

13.

On 22 August 2007, four months after Mr. Zhu Wei Yi had been moved from

preventive custody to prison as a trial defendant, the First Division of the Supreme Court

ruled on the appeal against his amparo, quashing the appeal by the two representatives of

the Federal Prosecution Service and upholding the decision to grant amparo. Although the

original amparo ruling was upheld owing to the unconstitutionality of his preventive

custody, the decision was set aside because of Mr. Zhu Wei Yi’s changed legal status.

14.

Mr. Tomintat Marx Yu was arrested on 19 April 2007 by federal prosecutors of the

Special Unit for the Investigation of Health-related Offences after a police raid on his home

in Apartment 6, No. 26 Calle José Marroquí, Colonia Centro, in the Federal District. An

initial application by the Federal Prosecution Service for a search warrant had been turned

down by the courts and it had appealed against the ruling. While the decision on the appeal

was pending, it filed a second application for a warrant before another court and without

mentioning the appeal. That application was granted.

15.

Mr. Tomintat Marx Yu was arrested on the basis of charges by the Federal

Prosecution Service that he had been caught in the act of participating in organized crime

and operations conducted with funds of illicit origin, on the ground that he had been

guarding the foreign currency found on 15 March 2007 in his sister’s home. He is believed

to be a member of Mr. Zhenli Ye Gon’s criminal group.

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16.

The placement in preventive custody of Mr. Tomintat Marx Yu was allegedly

authorized for a maximum of 90 days, provided that the Federal Prosecution Service

informed the court, within 30 days of receipt of the authorization, of the results of inquiries

and progress made in its investigation at that point, and on the understanding that the failure

to comply with the conditions established for granting the preventive custody order would

result in the detainee’s release. On 21 April 2007, Mr. Tomintat Marx Yu was transferred to

the preventive custody centre of the Attorney-General’s Office at No. 43 Calle Doctor

Ignacio Morones Prieto, Colonia Doctores, Cuauhtémoc Municipality, in the Federal

District.

17.

Given the failure to comply with the conditions established by the court for the

placement in preventive custody of Mr. Tomintat Marx Yu, his defence counsel submitted

an application on 6 June 2007 to have the order set aside, which was granted on 11 June

2007. The court ruling ordering an end to the detention was, however, ignored. Far from

being released, Mr. Tomintat Marx Yu was kept in detention in the above-mentioned

preventive custody centre for a further two days with no legal basis, until 15 June 2007. In

other words, Mr. Tomintat Marx Yu was deprived of liberty for 51 days by court order, a

further 2 days in preventive custody without any court order, and 2 days when the arrest

warrant was issued against him, making a total of 55 days held in a preventive custody

centre.

18.

On 10 May 2007, Mr. Tomintat Marx Yu filed an application for amparo against his

detention in preventive custody. No ruling, however, was made on that application, given

that he was transferred to the Social Rehabilitation Centre. In that way his deprivation of

liberty was prolonged through an arrest warrant issued for his arraignment. The application

for amparo was set aside, as a result of the change in his legal status. Mr. Tomintat Marx

Yu was charged with health-related offences, in the form of incitement, organized crime

and money-laundering.

19.

On 12 June 2007, the federal prosecutor of the Special Unit for the Investigation of

Health-related Offences of the Assistant Attorney-General for Organized Crime

Investigations (Office of the Attorney-General), launched criminal proceedings against Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi. On 13 June 2007, the Fourth District Criminal

Court issued warrants for the arrest of Mr. Zhu Wei Yi and Mr. Tomintat Marx Yu in

relation to case No. 25/2007-I. Two days later, on 15 June 2007, they were both transferred

to the Federal Social Rehabilitation Centre No. 1 (El Altiplano), in Almoloya de Juárez,

where they remain deprived of their liberty. Six days later, on 21 June, the Fourth District

Criminal Court issued a formal writ of imprisonment for Mr. Tomintat Marx Yu and Mr.

Zhu Wei Yi on charges of organized crime and operations carried out with funds of illicit

origin.

20.

It should be noted that Mr. Zhenli Ye Gon is no longer in Mexican territory and that

his extradition from the United States of America has been requested. His ties to Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi are demonstrated by the fact that his wife is the

sister of the former and sister-in-law of the latter.

21.

According to the source, those family ties were crucial in convincing the court of the

existence of a criminal organization. It would appear that those family ties were in

themselves considered evidence of probable criminal liability. The source is also of the

view that the burden of proof has been reversed in the criminal proceedings against Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi, since the Federal Prosecution Service has not been

asked to prove that a crime was committed. Rather, the defendants have been required to

demonstrate their innocence.

22.

On 14 March 2008, defence counsel for Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi

made an application for amparo against the writ of imprisonment, which was granted on 5

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January 2009 by the Second Circuit Court No. 2. The amparo was granted with a view to

establishing what proof there was that offences had been committed and the liability of Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi.

23.

Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi also filed an administrative complaint

against the judge of Second Circuit Court No. 1, which is being examined by the Council of

the Federal Judiciary. They also filed applications for amparo against the sixth writ of

imprisonment.

24.

Citing articles 7.5, 8.1, 2 and 29 of the American Convention on Human Rights and

the principles of the presumption of innocence, reasonable delay and pro homine, and,

considering that so far, after four years, no definitive prison sentence has as yet been

handed down in criminal case No. 25/2007-I, explaining the factual and legal reasons for

the deprivation of liberty of Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi, the defence

counsel applied to the Fourth District Criminal Court for the cessation of their pretrial

detention. Counsel requested an alternative measure that would prevent them from evading

justice and ensure that they remained under the court’s authority for the duration of the trial

proceedings, without depriving them of their liberty. The application was rejected. The

detainees subsequently filed an application for amparo, which is still before the Fifth

District Amparo and Federal Civil Proceedings Court.

25.

Another application for release from prison, for the same reasons as mentioned

above, was filed before the Fifth District Criminal Court and rejected. The detainees then

filed a second application for amparo, which is currently before the Fifth District Amparo

and Federal Civil Proceedings Court.

26.

All the appeals, especially for amparo, made by the defence on behalf of Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi have thus proven ineffective. In that context, the

source refers to observations made by the Working Group on Arbitrary Detention in the

report on its visit to Mexico in 2002, when it noted shortcomings in the amparo

proceedings with regard to combating arbitrary detention.1 The Working Group went on to

observe that, in most cases, proceedings were shelved, thereby ruling out any effective

control by the courts over those practising arbitrary detention without reference to judicial

procedure. In the source’s view, that is precisely what has occurred in the case under

consideration.

27.

The source concludes that the detention of Mr. Tomintat Marx Yu and Mr. Zhu Wei

Yi contravenes national and international law and is therefore arbitrary. Firstly, the source

casts doubt over whether they were caught in flagrante delicto, which was the reason given

for their arrest. Secondly, it maintains that the preventive custody to which they were

subjected was unconstitutional and violated their basic rights. Thirdly, it points to the lack

of a rapid and effective legal remedy enabling them to contest their arbitrary detention; and

lastly, it considers that the above-mentioned points amount to a failure to uphold the

guarantees that must be implicit in all legal proceedings.

28.

The source, pointing out that the reason given for the arrest of Mr. Tomintat Marx

Yu and Mr. Zhu Wei Yi was that they were allegedly caught in flagrante delicto, to the

scope of flagrante delicto as set forth in article 193 of the Federal Code of Criminal

Procedure, which was in force in 2007:

Flagrante delicto exists when:

I.

The accused is caught in the act of committing an offence;

1 E/CN.4/2003/8/Add.3, para. 51.

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II.

The accused is pursued and caught immediately after having committed an

offence; or

III.

The accused is identified as the culprit by the victim, another witness at the

scene or a fellow perpetrator; the object, instrument or proceeds of a crime are found

in his possession; or clues or evidence are found that give reason to suppose that he

was involved in the commission of the crime, provided that the crime is one defined

as serious by law, that no more than 48 hours have elapsed since the crime was

committed, that a preliminary investigation has been launched and that the crime is

still under investigation.

29.

The legal concept of flagrante delicto was employed in this case in the wake of a

police search or raid in a house that belonged to neither of the detainees. Mr. Zhu Wei Yi

and Mr. Tomintat Marx Yu were not present when the raid took place, but rather came of

their own volition once the search had begun in order to give support to two relatives, one

of them a minor, who were in the house at the time of the search. In the source’s view, the

situations outlined in sections I and II of the law cited above could not possibly have

occurred, since there was no element of surprise or pursuit in either case. On the contrary,

both detainees presented themselves of their own free will, without any official request, at

the place that was the subject of a criminal investigation.

30.

In the case of Mr. Zhu Wei Yi, arrested on 15 March 2007, and that of Mr. Tomintat

Marx Yu, arrested 35 days later, the concept of flagrante delicto was applied to possession

of a large sum of foreign currency (United States dollars) found in the above-mentioned

house. The claim that they were caught in flagrante delicto in possession of the money is

difficult to accept, given that the money was found in one location while those who were

allegedly in possession of it were in another.

31.

The source recalls the view expressed by the Working Group in the report on its

2002 visit to Mexico with regard to the broad interpretation of the concept of catching an

offender in flagrante delicto, which is not limited to allowing a person to be arrested while

he or she is actually committing an offence and when the perpetrator is identified.2 The

Working Group has noted that the broad interpretation of the concept of flagrante delicto

means that arrests can be made without a court order, solely on the basis of complaints or

witness statements, and that such an assumption of flagrancy is incompatible with the

principle of the presumption of innocence and creates risks of arbitrary detention. Mr.

Tomintat Marx Yu was arrested 35 days after he had been allegedly caught in the act of

committing the offences of which he was accused. Both persons were allegedly caught in

the possession of money found in a place in which neither was physically present at the

time it was discovered, and which was neither their place of residence nor their workplace.

It was simply money found in the house of someone with whom both had only family ties.

32.

Moreover, the source insists that the legal procedure known as arraigo is

unconstitutional and violates human rights. The source considers that the deprivation of

liberty to which Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi have been subjected under the

arraigo regime is arbitrary and unconstitutional. At the time of their arrest, there was no

provision whatsoever in the Constitution for arraigo, which is not the case at present. Its

legality was recognized solely and exclusively under federal law, in article 12 of the

Federal Act on Combating Organized Crime, in the following terms:

2 Ibid., para. 39.

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Article 12: A court may, upon request by the Federal Prosecution Service and taking

into consideration the nature of the alleged offence and the personal circumstances

of the accused, order that he or she be held in preventive custody in the facilities and

manner set forth in the request and under the surveillance of the Federal Prosecution

Service and its ancillary officers, provided that such custody, which shall not exceed

90 days, lasts only as long as strictly necessary for the conduct of the investigations,

with the aim of obtaining the cooperation of the person concerned in ascertaining the

veracity of the alleged facts and shortening the period of custody.

33.

The source is surprised that a preventive custody request should have been filed after

the arrest of these two persons, given that in 2006, one year before Mr. Tomintat Marx Yu

and Mr. Zhu Wei Yi were arrested, an important legal precedent was set when the Supreme

Court of Justice had ruled that preventive custody was unconstitutional.

34.

The source further underlines the unconstitutional and arbitrary nature of the

placement in preventive custody in both cases, citing the ruling of the Fourteenth District

Criminal Amparo Court of the Federal District in criminal case No. 254/07-II.A, in which it

is stated: “... article 12 of the Federal Act on Combating Organized Crime violated articles

14, 16, 19 and 21 of the Constitution in that none of those articles allowed for the restriction

of liberty for more than 96 hours for the purpose of carrying out a preliminary inquiry, and

that there was no provision for preventive custody in the Constitution”.

35.

In its report on its mission to Mexico, the Working Group addressed the arbitrary

nature of preventive custody, stating that it had become a form of pretrial detention, often

enforced in casas de arraigo (or “curfew houses”).3 The Working Group stated that the

practical consequence of the use of this kind of curfew is that it gives the Federal

Prosecution Service longer to carry out the relevant investigations and collect the evidence

it needs to submit to the district judge before the person can be formally charged. There is

thus a sort of de facto pretrial that takes place not before a judge, but before officials from

the Attorney-General’s Office, who are thus empowered to perform judicial acts and

evaluate evidence and present the means of proof before the person is charged. It noted that

preventive custody centres were in fact similar to prisons in terms of security, with

numerous armed guards, electronic surveillance, and the like.

36.

Lastly, the source recalls that, despite the Working Group’s recommendation in

2002 that Mexico should, inter alia, amend its domestic laws on preventive custody in order

to bring them into line with international norms on the presumption of innocence, flagrante

delicto and the conditions for early release, and that it work on effective remedies for

arbitrary detention and class such detention as a crime, the State decided to elevate

preventive custody to constitutional status amending article 16 of the Constitution. The

intention was to endow this sort of deprivation of liberty with constitutional legality under

the constitutional reform published in the State’s Official Gazette on 18 June 2008, exactly

one year after Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi had been placed in preventive

custody.

37.

The Working Group noted in its report on its 2002 mission to Mexico that one of the

salient features of amparo is that it does not apply erga omnes and that proceedings are

stayed or set aside if a person’s legal situation changes, which prevents it from effectively

protecting personal freedom.4 Those two features of amparo, prior to the reform of the

Constitution, rendered it ineffective.

3 Ibid., paras. 45–50.

4 Ibid., para. 18.

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38.

In spite of the various appeals submitted by Mr. Tomintat Marx Yu and Mr. Zhu

Wei Yi with the aim of proving their innocence, they have now been caught up in trial

proceedings for four years and two months during which no definitive prison sentence has

been handed down. This fact, the source asserts, has made a mockery of their right to be

tried within one year, as set forth in article 20 of the Constitution, which is currently in

force:

VIII. [The accused] shall be tried within four months in the case of offences for

which the maximum sentence does not exceed two years, and within one year where

the sentence exceeds that period, unless he requests an extension for his defence.

39.

The source recalls the opinion expressed by the Human Rights Committee that a

person may not be held in detention beyond a period of time that can be properly justified

by the State. There has therefore been a breach of Principle 38 of the Body of Principles for

the Protection of All Persons under Any Form of Detention or Imprisonment,5 which

establishes: “A person detained on a criminal charge shall be entitled to trial within a

reasonable time or to release pending trial.”

40.

Apart from the fact that they have been held in pretrial detention for an excessive

period of more than four years, Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi are held in

prison together with convicts and in the same conditions of detention, in violation of

Principle 8 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, which establishes: “Persons in detention shall be subject to

treatment appropriate to their non-convicted status. Accordingly, they shall, whenever

possible, be kept separate from imprisoned persons.” This situation clearly places the

detainees in a situation of vulnerability, since they are not assured of receiving treatment in

any way different from that reserved for persons serving prison sentences after having been

found guilty of a crime.

41.

Lastly, the source underlines the failure to apply precautionary measures that would

make it possible to release Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi, all the while

obliging them to attend trial proceedings and ensuring that they do not abscond from

justice, but in conditions of freedom. Such measures have been requested on more than one

occasion.

42.

The source therefore concludes that the detention of Mr. Tomintat Marx Yu and Mr.

Zhu Wei Yi is arbitrary.

Response from the Government

43.

The Government failed to comply with the Working Group’s request for a report on

the allegations received within the period stipulated by its methods of work. Therefore,

pursuant to paragraph 15 of the methods of work, it is in a position to render an opinion.

The Working Group was unable to grant the extension of 20 days requested by the

Government, because the request was submitted after the deadline stipulated in the methods

of work. Any information furnished by the Government at a later date will be welcomed

and summarized in a report by the Working Group to the Human Rights Council.

Considerations of the Working Group

44.

Judging by the source’s account, which the Government has not contested, the

persons on whose behalf the appeal is lodged have been deprived of their liberty for almost

five years. Indeed, Mr. Zhu Wei Yi was apprehended on 15 March 2007, without a warrant

5 Resolution No. 43/173 of the General Assembly, annex.

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from any appropriate authority, when he presented himself at the house of a relative in

which a search was being conducted by officials of the Attorney-General’s Office, and was

subsequently detained on the premises of the Office for 72 hours. The Office was of the

view that Mr. Zhu Wei Yi’s presence was tantamount to having been caught in flagrante

delicto while committing acts of organized crime and operations conducted with funds of

illicit origin. When this period had elapsed, he was transferred to one of the Office’s own

preventive custody centres, where he was kept in preventive custody for 88 days without an

arrest warrant. On 15 June of the same year, he was transferred to the Federal Social

Rehabilitation Centre, where he still remains as this opinion is being issued, making for a

total of 4 years and 8 months’ deprivation of liberty. Even the order of imprisonment for the

offences in question was handed down by the Fourth District Criminal Court only on 21

June, when he had already been in administrative detention for almost three months.

45.

Mr. Tomintat Marx Yu, for his part, was deprived of his liberty on the same charges

on 19 April 2007, and was also considered to have been caught in flagrante delicto. Having

been held for two days on the premises of the Special Unit for the Investigation of Health-

related Offences, he was transferred without a warrant to the preventive custody centre of

the Attorney-General’s Office, where he was kept for 56 days without a court order but

under a provision for preventive custody that will be discussed in greater detail below. On

15 June he was transferred with Mr. Zhu Wei Yi to the same Social Rehabilitation Centre,

where he remains deprived of his liberty, having spent a total of four years and seven

months in detention, including his time spent at the Attorney-General’s Office, his time in

preventive custody, and the duration of investigations, which have dragged on

inconclusively for more than four years.

46.

In order to adopt an opinion, the Group will examine the situation of the persons

concerned from the source’s viewpoint, looking separately at the time of arrest for being

caught in flagrante delicto in commission of the aforementioned offences, the period of

preventive custody and the time spent in detention in the course of the judicial

investigation. Mention will also be made of the court appeals submitted by defence counsel.

Arrest for alleged flagrante delicto

47.

Pursuant to article 193 of the Federal Code of Criminal Procedure, flagrante delicto

exists in three situations: (a) when the detainee is caught “in the act of committing an

offence”; (b) when he or she is pursued “immediately after having committed an offence”;

and (c) if the arrest takes place within 48 hours of the offence having been committed, an

investigation has already been launched, the alleged perpetrator has been identified and the

offence is of a serious nature.

48.

Judging from the source’s account, which is not contested by the Government, it

appears clear that the detainees were not caught in flagrante delicto in the process of

committing any crime. Mr. Zhu Wei Yi and Mr. Tomintat Marx Yu were told on 15 March

2007 that the house of a relative, Mr. Zhenli Ye Gon, was being searched and went there

freely and with nothing to fear, desirous only of protecting family members, including a 7-

year-old boy. Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi are, respectively, the brother-in-

law of Mr. Zhenli Ye Gon and brother-in-law of the wife of Mr. Zhenli Ye Gon, who was

under investigation. Even during the house search, Attorney-General’s Office officials

allowed Mr. Tomintat Marx Yu to leave the location with the boy and he was arrested only

more than one month later at his home, during another raid by the Office. He was not found

to be in possession of anything irregular and the aforementioned money was discovered not

in his possession but in that of his brother-in-law, Mr. Zhenli Ye Gon. All of the above is

incompatible with the concept of flagrante delicto. Strangest of all is that 35 days elapsed

between one arrest and the other, a fact irreconcilable with claims of flagrante delicto.

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49.

It should be noted that, in its report on its visit to Mexico in 2002, the Working

Group pointed out that “‘equipollent flagrancy’ is based on a broad interpretation of the

concept of catching an offender ‘in flagrante delicto’” ... which means that “arrests can be

made without a court order and, as the Working Group discovered in its conversations with

numerous detainees, simply on the basis of complaints or statements by witnesses. This

assumption of flagrancy is incompatible with the principle of presumption of innocence and

creates risks of both arbitrary detention and extortion”.6

The institution of preventive custody (arraigo)

50.

Mr. Zhu Wei Yi was the subject of a preventive custody order issued by the Fifth

District Criminal Court between 18 March and 15 June 2007 (88 days), while Mr. Tomintat

Marx Yu was the subject of a similar order between 19 April and 15 June 2007, making a

total of 52 days of preventive custody ordered by a criminal court. Although the court

orders were issued for the maximum period permissible under the law, they were made

conditional on considerable progress by the Attorney-General’s Office in its inquiries.

51.

The source maintains that preventive custody is an administrative measure, although

in the cases at hand it was imposed by court order. The Working Group does not share this

position: organized crime legislation and the 2008 Constitution stipulate that only a court

may order preventive custody in response to a request by the Federal Prosecution Service

and on grounds of evidence provided.

52.

At the time these two persons were arrested, the institution of preventive custody

had no constitutional foundation. It had been provided for only in federal law, under article

12 of the Federal Act on Combating Organized Crime (para. 32 above), and had thus been

the subject of fierce criticism, prompting the Supreme Court to rule that it was

unconstitutional. The legal grounds for the deprivation of liberty of Mr. Tomintat Marx Yu

and Mr. Zhu Wei Yi were therefore unconstitutional. That alone would have sufficed to

conclude that their detention was arbitrary, given that it flies in the face of all the norms

laid down in international human rights law in the past 70 years. It constitutes a clear case

of arbitrary detention as set forth under category III of the Working Group’s methods of

work.

53.

The amendment of article 16 of the Constitution clearly does not legitimate actions

taken prior to its adoption; on the contrary, what it does is underscore the arbitrary nature of

earlier detentions. The new norm in the Constitution provides that: “When dealing with

organized crime, the judicial authority, at the request of the prosecutor, may order that a

person be held in preventive custody in a facility and for a period of time as provided for by

law, up to a maximum of 40 days, if such detention is necessary for the success of the

investigation or for the protection of persons or property, or if there is a well-founded

concern that the suspect will abscond from justice.” (art. 16, para. 7). Moreover, it was

established that the Federal Prosecution Service could prolong preventive custody for a

further 40 days.

54.

In the view of the Working Group, preventive custody, as it was set forth under the

Federal Act on Combating Organized Crime and in the current Constitution, constitutes an

infringement of the rights to personal freedom, a fair trial and the presumption of

innocence; of the right not to be deprived of liberty while on trial; of the human right to

security; and of the right not to be subjected to torture or other cruel, inhuman or degrading

treatment or punishment.

6 E/CN.4/2003/8/Add.3, para. 39.

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55.

During its sixty-first session, the Working Group received the text of

Recommendation No. 02/2011 of the Human Rights Commission of the Federal District,

which sets out the serious human rights problems ensuing from preventive custody. It

recommends to the Attorney-General of the Federal District and the President of the

Federal District High Court that they should, in their respective jurisdictions, encourage the

appropriate authorities to carry out reforms designed to remove preventive custody as a

form of detention from legislation and to implement other recommendations deemed by the

Working Group to be of key importance.

56.

In its report on its 2002 mission, the Working Group found that preventive custody

“in fact amounts to a form of preventive detention of an arbitrary nature, given the lack of

oversight by the courts and the implementation of the measure in places that, while not

actually secret, are ‘discreet’”.7 The Working Group established that inquiries about their

precise location were “more or less a taboo subject, including for administration officials”.8

57.

Similarly, the Special Rapporteur on the independence of judges and lawyers, in her

report on her visit to Mexico in 2010, studied in depth the use of preventive custody and

pointed out that it permitted persons to “be detained for the purpose of an investigation,

whereas the appropriate and correct course of action would be to swiftly undertake an

effective investigation and then proceed to make an arrest. The use of preventive custody is

the outgrowth of a poorly functioning system for investigation and the administration of

justice.” The Special Rapporteur concluded that: “Preventive custody (arraigo) is an

arbitrary measure that is incompatible with the principle of the presumption of innocence

and the right to personal freedom” and that it “should be expunged from Mexico’s criminal

justice system”.9

Human right to access to judicial remedies

58.

Rights enshrined in the International Covenant on Civil and Political Rights in

article 2, paragraph 3 (all rights), and in article 9, paragraph 3 (the right to personal

freedom, universally known as habeas corpus) have also been ignored. In each provision,

the basic principle is the effectiveness of the remedy. According to the complaint, in no

way contested by the Government, at least the following remedies were sought:

(a)

An application for amparo on behalf of Mr. Zhu Wei Yi against the

preventive custody order was granted on 14 May 2007 by the Fourteenth District Criminal

Amparo Court in the Federal District. The Federal Prosecution Service, however, asked for

the measure to be reviewed, which prevented implementation of the amparo and, in the

end, resulted in continued preventive custody. The remedy thus proved ineffective;

(b)

The competent court refused to grant a search warrant. The Federal

Prosecution Service, however, appealed and at the same time applied to another judge for a

warrant, which was granted, thereby overturning a ruling in favour of the person concerned;

(c)

Tomintat Marx Yu applied for amparo against his detention, but no ruling

was made, making the remedy ineffective. The reason given was that he was on trial (10

May 2007);

(d)

Various appeals, remedies and complaints submitted with the aim of

obtaining their release from prison while trial proceedings were ongoing have been denied,

while some are still being considered.

7 Ibid., para. 50.

8 Ibid., para. 50.

9 A/HRC/17/30/Add.3, paras. 64, 92 and 94 (bb).

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59.

The above reveals a serious disregard for the human rights referred to and reflects

how poorly the justice system in the Federal District works. This opinion is shared by the

Human Rights Commission of the Federal District, which, in its Recommendation No.

02/2011, maintains that “in cases documented by this Commission, Federal District High

Court judges have failed to guarantee the rights of suspects”; adding that frequently

preventive custody orders were granted without sufficient reasons or the application of a

clear standard regarding evidence. The same recommendation tersely states that “in the

light of the above information and reasoning, this Commission has come to the conclusion

that the model of preventive custody provided for in the Constitution and the law of the

Federal District was tantamount to a legal or procedural act, in that it requires a court order,

and a unilateral act carried out by the Federal Prosecution Service, with serious

consequences for the rights of persons under criminal investigation”.

60.

It is worthy of note that the opinion of the Working Group coincides entirely with

that expressed by other United Nations mechanisms:

(a)

During consideration of Mexico’s report under the universal periodic review,

some States called for the abolition of the practice of preventive custody;10

(b)

In its report on its visit to Mexico, the Subcommittee on Prevention

“recommends that the State party abolish arraigo”;11

(c)

The Human Rights Committee underscored “that persons detained under

arraigo are exposed to ill-treatment” and proposed that “the State party should take all

necessary measures to remove arraigo detention from legislation and practice at both

federal and state levels”.12

Undue delays

61.

More than four years of deprivation of personal freedom without conviction

constitute, in the view of the Working Group, a denial of the right to be tried without undue

delay, enshrined in article 14, paragraph 2 (c), of the International Covenant on Civil and

Political Rights.

Opinion of the Working Group

62.

In the light of the above, the Working Group renders the following opinion: The

deprivation of liberty of Mr. Tomintat Marx Yu and Mr. Zhu Wei Yi is arbitrary, in that it

violates human rights enshrined in articles 3, 7, 8, 9, 10 and 11 of the Universal Declaration

of Human Rights; article 2, paragraph 3 (a), (b) and (c), and articles 9, 10, 12 and 14 of the

International Covenant on Civil and Political Rights, pursuant to category III of the

Working Group’s methods of work.

63.

The Working Group therefore requests that Mexico order the release of Mr.

Tomintat Marx Yu and Mr. Zhu Wei Yi, without prejudice to the use of measures needed to

ensure that they appear in court when required and serve any sentence that might be

imposed.

64.

The Working Group also requests the Government to order compensation to be

made for the loss and damages caused by the arbitrary acts addressed in this opinion.

10 A/HRC/11/27, para. 49: recommendation by New Zealand and Switzerland, in which the former

added the words “as soon as possible”.

11 CAT/OP/MEX/1, para. 334.

12 CCPR/C/MEX/CO/5, para. 15.

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65.

Lastly, the Working Group requests that the Government adopt the measures

proposed by the United Nations special mechanisms, especially those of the Special

Rapporteur on the independence of judges and lawyers following her visit to Mexico in

2010; by this Working Group after its official visit to Mexico in 2002, and by the Inter-

American Commission on Human Rights, in relation to the improper interpretation of

flagrante delicto and the abolition of preventive custody (arraigo).

[Adopted on 22 November 2011]