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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its sixty-fourth session, 27–31 August 2012

No. 33/2012 (Mexico)

Communication addressed to the Government on 13 March 2012

Concerning Mr. Hugo Sánchez Ramírez

The Government did not reply to the communication of the Working Group within

the 60-day time limit

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

1.

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

the former Commission on Human Rights, which extended and clarified the Working

Group’s mandate in its resolution 1997/50. The Human Rights Council assumed that

mandate in its decision 2006/102 and extended it for a three-year period in its resolution

15/18 of 30 September 2010. In accordance with its methods of work (A/HRC/16/47,

annex, and Corr.1), the Working Group transmitted the above-mentioned communication to

the Government.

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 the detainee) (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);

United Nations

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General Assembly

Distr.: General

23 November 2012

English

Original: Spanish

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(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);

(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; or

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. Hugo Sánchez Ramírez is a 24-year-old indigenous Mazahuan taxi driver,

residing in Depósito San Antonio in the municipality of San José del Rincón, Mexico State.

On 21 July 2007, he was arrested after his car was intercepted at a stop known as El

Catorce, between the communities of Providencia and Villa Victoria, Mexico State, by

municipal police officers from Mexico State in Villa Victoria.

4.

When the car stopped, two passengers ran out of the taxi, leaving in it a backpack.

The police officers shot at the car, which was hit by six bullets. Mr. Sánchez Ramírez and

two passengers in the taxi, Raúl Martínez García and Manuel Mendoza García, were

arrested. The municipal police officers said that they arrested the three individuals because

they were “acting suspiciously” and claimed that they had been caught in flagrante delicto

to justify the absence of an arrest warrant. The officials are said to have placed two

weapons in the car, next to the handbrake, thereby manipulating the scene.

5.

After their arrest, the three individuals were taken to a rural location where they

were interrogated and tortured by the municipal officials. They were then taken to the Villa

Victoria Town Hall, where three officials from the Special Investigation Unit for High-Risk

Situations (CEISAR) were present. They were interrogated again in the Town Hall and

photographs were staged of them carrying weapons and wearing balaclavas over their faces.

6.

On 22 July 2007, the three arrested persons were brought before the Office of the

Attorney-General and the federal judicial authority on charges of possession of firearms

and ammunition for the exclusive use of the army.

7.

On 23 July 2007, Mr. Sánchez Ramírez made a statement to the public prosecutor

and was released upon payment of bail of 8,000 Mexican pesos (about US$ 624,000).

8.

On 24 July 2007, case No. 29/2007 was brought before the Fourth District Federal

Criminal Court of Mexico State for the offences of possession of firearms for the exclusive

use of the army, navy and air force, and possession of firearms without a licence. On 30

June 2008, the federal criminal judge handed down a judgement sentencing Mr. Sánchez

Ramírez to 5 years’ imprisonment and a fine of 100 days’ minimum wage. On 16 October

1998, the sentence was upheld by the Second Circuit Court No. 2.

9.

On 8 August 2007, Mr. Sánchez Ramírez was arrested again by state judicial police

in Villa Victoria, Mexico State. This time, however, an arrest warrant had been issued by

the judge of the Sixth Criminal Court of First Instance of the Judicial District of Toluca,

Mexico State, for the offence of kidnapping two minors.

10.

On 31 July 2007, case No. 201/2007 was brought before the Sixth Criminal Court of

First Instance of the judicial district of Toluca. On 8 August 2007, the arrest warrant was

issued in the municipal offices of Villa Victoria. On 15 August 2007, he was formally

sentenced to imprisonment.

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11.

On 23 March 2009, Mr. Sánchez Ramírez was convicted of the crime of kidnapping.

He was sentenced to 37 years and 6 months’ imprisonment and a fine of 1,775 days’

minimum wage (which amounts to 84,490 Mexican pesos, i.e. about US$ 6,557), as well as

compensation for material damage to the victims in the form of a fine of 272 days’

minimum wage (12,947.20 Mexican pesos, i.e. about US$ 1,005). The sentence was upheld

on 6 July 2009 by the First Collegiate Criminal Chamber of Toluca.

12.

Judicial proceedings against Mr. Sánchez Ramírez lasted two years. According to

the source, his right to due process was repeatedly violated. The proceedings involved

manipulated testimony, fabricated evidence, altered photographs and ill-treatment.

13.

Mr. Sánchez Ramírez has served 5 years of a sentence for offences that he did not

commit, on the basis of the evidence produced in the judicial proceedings. In August 2012,

Mr. Sánchez Ramírez completed 5 years in prison, which is the length of the sentence for

the offence of possession of firearms for the exclusive use of the army.

14.

Currently, Mr. Sánchez Ramírez is detained at the “Altiplano” Federal Social

Rehabilitation Centre (CEFERESO) in the municipality of Almoloya de Juárez, Mexico

State.

15.

His lawyer filed two direct applications for amparo on his behalf against the two

appeal court decisions, before the Second Collegiate Criminal Court of the Second Circuit

based in Mexico State. On 6 July 2011, the Supreme Court decided of its own motion to

exercise jurisdiction over those applications which, to date, have not been ruled upon.

16.

According to the source, this case provides a classic illustration of the practices of

the judicial system in Mexico State and demonstrates a pattern of unlawful conduct by

CEISAR. Rather than conducting professional investigations to identify the real culprits of

serious offences, it reportedly designates vulnerable — particularly indigenous — people as

alleged perpetrators, easily to obtain results in its fight against crime. The case also

allegedly reveals that the principle of presumption of innocence does not apply in practice

in Mexico State.

17.

With regard to the criminal proceedings and conviction for possession of illegal

firearms for the exclusive use of the army, the source considers that the arrest was arbitrary

and based on an alleged “suspicious attitude”. Excessive force was used; no basic

procedural safeguards, such as informing detainees of their rights and of the reasons for

their detention were observed; unlawful interrogations were conducted with the use of

violence, intimidation and torture; photographs were unlawfully taken of individuals

carrying weapons and wearing balaclavas in order to link detainees to other acts of violence

committed; justifying the claim that the accused had been caught in flagrante delicto was

irrelevant; and the police officers admitted that they had never asked Mr. Sánchez Ramírez

or attempted to ascertain whether he was licensed to possess weapons.

18.

The judicial authorities disregarded the principle of presumption of innocence and

Mr. Sánchez Ramírez’s right of defence, despite the many discrepancies in the accounts of

municipal police and CEISAR officers. The judges used different criteria to assess the

statements of the complainants and of the accused, based on the presumption of Mr.

Sánchez Ramírez’s guilt. They not only disregarded the many inconsistencies in the police

officers’ statements but also ignored the statements of the accused, even though they were

consistent at all times.

19.

The source maintains that there is no legal provision for, and therefore no definition

of, the concept of a “suspicious attitude”. The municipal police officers used excessive

force in firing shots at three passengers of a collective transport vehicle. Throughout the

proceedings, statements by police officers were given greater credence merely because they

were made by public officials, while the value of the victims’ statements was undermined

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by the mere fact that they were accused of an offence. The judges also used the term

“defensive statements” to dismiss those statements. Thus, the principles of equality before

the courts and the right to a fair trial were not respected.

20.

According to the author, the arrest and detention of Mr. Sánchez Ramírez for his

alleged involvement in a kidnapping are arbitrary. The source refers to the fact that the key

evidence used in the criminal proceedings was flawed: the photographs, forced

identification and the fabrication of an alleged confession in the form of a modus vivendi

and operandi report. The openly contradictory standards applied to the inculpatory and

exculpatory evidence, and the malicious fabrication of offences. In order to convict Mr.

Sánchez Ramírez, the prosecution fabricated evidence and the court ignored the rights to

presumption of innocence and to a proper defence.

21.

The entire proceedings were based on the use of photographs unlawfully taken

during the initial arrest of 21 July 2007. These photographs were used to ensure that Mr.

Sánchez Ramírez was identified as the alleged kidnapper by the two abducted minors.

Although in their initial statements of March 2007, the minors had stated that they could

not provide a description of the kidnappers because they had not seen them clearly, under

pressure from CEISAR police officers, they identified Mr. Sánchez Ramírez as the driver of

the car in which they had been abducted. The photographs were added to the preliminary

inquiry file with no indication as to how they had been obtained. The identification

procedure was carried out without any formality or precautions. Subsequently, both minors

withdrew their identification statements. The judge, however, did not take these retractions

into consideration.

22.

Mr. Sánchez Ramírez was convicted of kidnapping solely on the basis of the forced

identification of incriminating photographs obtained and used unlawfully and of an alleged

confession with no signature and which could not have been made on the date indicated on

the modus vivendi and operandi report. His lawyer attended neither the identification of the

photographs nor the alleged confession. Mr. Sánchez Ramírez was not present at his alleged

confession as he was on provisional release in his community on that date.

23.

The source adds that during the proceedings, the judges applied restrictive and

discretionary criteria to discredit all the various testimonies for the defence while admitting

without objection all the testimony for the prosecution. The defence lawyer’s questions

were frequently criticized. The replies to the questions of the defence were often dismissed

and the evidence provided by the defence was completely disregarded, even when it had

been requested by the same judge.

24.

The judge considered that it was unnecessary to take statements from police officers

José Samuel Rojas Gutiérrez and Sacramento González Sánchez, who had reportedly

helped to obtain Mr. Sánchez Ramírez’s alleged confession, or from the authors of the

incriminating modus vivendi and operandi report. When the defence finally secured their

appearance, the police officers made various contradictory statements and recognized that

neither the incriminating interview nor the alleged confession of Mr. Sánchez Ramírez had

taken place.

25.

The source adds that this case reveals a pattern of arbitrary arrests and framing of

indigenous and low-income persons, and states that as a result of their low income it is

extremely difficult for indigenous persons to overcome the presumption of guilt against

them. In order to demonstrate their alleged success in combating crime, police officers

arrest persons they presume to be poor and with little chance of proving their innocence in

court, such as taxi drivers and collective taxi owners.

26.

The case also reveals a pattern of discrimination and inequality in the security and

justice administration system. The source referred to the judgement of 23 March 2009 of

the Sixth Criminal Court of First Instance of the Judicial District of Toluca, which literally

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stated that Mr. Sánchez Ramírez “has no valuable assets of his own, a factor that works

against him and which no doubt helped to account for his participation in the kidnapping, in

order dishonestly to obtain money”.

27.

The source recalls that in its 1998 report the Inter-American Commission on Human

Rights (IACHR) already warned about the misleading interpretation in Mexican case law of

the principle of procedural immediacy in respect of acts of torture and ill-treatment (see the

IACHR report on the situation of human rights in Mexico [OEA/SER.L/V/II/100], paras.

309 to 315). In the Commission’s view this is an erroneous interpretation that violates due

process.

28.

Mr. Sánchez Ramírez’s lawyer has filed two applications for amparo with the

Supreme Court (direct applications for amparo No. 4/2011 and No. 5/2011), seeking

revocation by the highest judicial authority in Mexico of the interpretation that the judicial

authorities have been applying to the principle of procedural immediacy and, in accordance

with the principle of exclusion of unlawful evidence, the nullification of the unlawfully

obtained and fabricated evidence that formed the basis for the conviction.

Response from the Government

29.

No reply was received to the communication sent by the Working Group to the

Government of Mexico on 13 March 2012 nor did the Government request an extension of

the deadline for its reply.

Comments from the source

30.

The source forwarded to the Government various new elements of information from

various sources, which the Working Group will consider in this opinion.

Discussion

31.

The following facts have not been disputed by the Government:

(a)

On 21 July 2007, while driving his taxi, Mr. Sánchez Ramírez was arrested in

the street by municipal police officers who considered that he was “acting suspiciously” —

an unknown legal category that has been widely used in Mexico by the police and which, in

view of its vagueness, facilitates arbitrary acts — an issue that has given rise to concern in

all legal circles as it has been invoked to commit abuse, particularly through arbitrary

arrests;

(b)

At the time of issuing this opinion, Mr. Sánchez Ramírez has already served

more than 5 years’ imprisonment, which is the length of the sentence for the offence of

possession of firearms for the exclusive use of the army;

(c)

At the time of his arrest, the police officers failed to present an arrest warrant;

(d)

He was initially charged with illegal possession of firearms for the exclusive

use of the army and was provisionally released on bail;

(e)

He was nevertheless arrested again immediately afterwards, on a completely

different charge: the kidnapping of two minors. Not only is the alleged offence entirely

different from the first charge but so is the jurisdiction responsible for its investigation, trial

and judgement, as the courts of Mexico State — rather than the federal courts — would

have jurisdiction over the first alleged offence;

(f)

The choice of jurisdiction was such that one offence was tried at the State

level and the other at the federal level. The former jurisdiction imposed a sentence of 37

years and 6 months for the alleged kidnapping offence, while the latter jurisdiction imposed

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a 5-year sentence for the offence of illegal possession of firearms for the exclusive use of

the army;

(g)

The Government has not refuted that the courts of first and second instance

based their decisions on the initial statements made by Mr. Sánchez Ramírez at the police

station rather than on those made to the judicial authorities. The convictions even accepted

as evidence the initial statements of the kidnapping victims, even though they withdrew

their identification at the trial. The initial identification by the victims was based on Mr.

Sánchez Ramírez’s photographs taken by the police when he had been convicted solely for

the use of weapons for the exclusive use of the army;

(h)

Mr. Sánchez Ramírez is currently detained at the “Altiplano” CEFERESO in

the municipality of Almoloya de Juárez (Mexico State), where he is serving his long

sentence.

32.

Mr. Sánchez Ramírez’s lawyer filed two applications for amparo before the

Supreme Court, requesting his personal freedom and the guarantee of a fair trial, with all

the safeguards required under domestic and international law. Neither of the two

applications, however, has proved effective within the meaning of article 8 of the Universal

Declaration of Human Rights and articles 2, paragraph 3 and 9, paragraph 4 of the

International Covenant on Civil and Political Rights.

33.

These applications were filed with a view to ensuring that the Supreme Court at the

federal level amended a highly contested interpretation by the courts of the principle of

procedural immediacy, which gives precedence to testimony provided as close as possible

to the time of the offence – notably that provided by the accused at the police station, when

they are particularly vulnerable, under significant pressure and often under the influence of

torture. This practice has been considered unacceptable in the light of the abuse to which it

may give raise, as is clearly illustrated in the case of Mr. Sánchez Ramírez. Although he

never possessed any prohibited weapons and never kidnapped anyone, he has received

wholly unjust sentences, based on the police version of his statement. Similarly, the minors

who initially identified Mr. Sánchez Ramírez in photographs and under pressure from the

police subsequently withdrew their statements during the proceedings. During the trial, the

police officers also admitted that Mr. Sánchez Ramírez had never made a confession.

34.

The arrest of this person suggests that the interpretation of the principle of

procedural immediacy by the judicial authorities has encouraged, and still encourages, the

use of coercion to obtain statements and arbitrary arrests. The principle of procedural

immediacy is still used to give more weight to initial statements made to police officers

than to statements made in judicial proceedings, thereby encouraging ill-treatment and

torture.

35.

The decision of the Supreme Court to assume jurisdiction over the two applications

for amparo filed with lower courts by the lawyer of Hugo Sánchez Ramírez was considered

important and gave rise to hope of obtaining justice.

36.

Regrettably, there has been further cause for disappointment in this case, which has

had a similar impact on public opinion and in the legal spheres as the earlier case of Basilia

Ucan Nah — who, like Mr. Sánchez Ramírez is an indigenous person — which led to

opinion No. 36/2011 (Mexico) of the Working Group, adopted on 1 September 2011. The

Supreme Court examined the applications for amparo on 19 October 2011, more than 10

months ago, but has still not handed down a decision. The Supreme Court is the body that

is now in a position to correct the errors made by the judges and prosecutors in the courts of

first and second instance and by the municipal and federal police, who arrested Mr.

Sánchez Ramírez without an arrest warrant and charged him with offences in which he took

no part.

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37.

Consequently, the Working Group considers that the arrest of 8 August 2007 and the

subsequent judicial proceedings are arbitrary. The violations of due process were blatant

and particularly serious in both judicial proceedings – which formed the basis for the

convictions.

38.

This case also demonstrates the unlawful practice of arbitrarily arresting persons

who are poor or who belong to vulnerable sectors of the population, particularly indigenous

peoples, and the random use of photographs of them carrying weapons and wearing

balaclavas and randomly using the photographs in connection with other preliminary

inquiries.

39.

This case also illustrates the systematic obstruction of Mr. Sánchez Ramírez’s

lawyer and the clearly unequal application of standards and criteria to the parties.

40.

Arrest without a warrant from a competent authority; the total inaccuracy of the

charges brought against the person concerned; detention for more than 5 years; denial of the

right to be tried while free; ongoing violation of the right to due process; the failure to

ensure equal rights for the defence and the prosecution; and the absence of effective judicial

remedies. All of the above are flagrant violations of the rights enshrined in articles 3, 8, 9,

10 and 11 of the Universal Declaration of Human Rights, articles 2, paragraph 3, 9, 14

paragraphs 1, 2, 3 (b), 3 (g) and article 26 of the International Covenant on Civil and

Political Rights — to which Mexico is a party — and Principles 2, 10, 12, 13, 21, 23, 27, 36

and 37 of the Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment, adopted by the General Assembly in its resolution 43/173 of 9

December 1988. This gives the deprivation of liberty of Mr. Sánchez Ramírez an arbitrary

character under category III of the Working Group’s methods of work.

Disposition

41.

In light of the foregoing, the Working Group renders the following Opinion:

The deprivation of liberty of Mr. Hugo Sánchez Ramírez is arbitrary under category

III of the categories of arbitrary detention to which the Working Group refers in

considering the cases brought to its attention.

42.

Accordingly, the Working Group recommends that the Government of Mexico

should immediately release the person concerned and remove from official State documents

all references to his status as a convicted person, for all legal and administrative purposes.

43.

It also recommends that the State party should provide redress for all the material

and moral damage suffered by the person concerned through reasonable compensation.

[Adopted on 30 August 2012]