Opinion; Subjects: MEXICO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.14-13008 (E) 040614 050614
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Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its sixty-seventh session, 26–30 August 2013
No. 21/2013 (Mexico)
Communication addressed to the Government on 17 June 2013
Concerning Juan García Cruz and Santiago Sánchez Silvestre
The Government has not replied to the communication.
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 by the former
Commission on Human Rights by its resolution 1991/42. The mandate of the Working
Group was then clarified and extended by the Commission by its resolution 1997/50. The
Human Rights Council assumed the mandate by its decision 2006/102 and extended it for a
further three-year period by its resolution 15/18 of 30 September 2010. Acting in
accordance with its methods of work (A/HRC/16/47, annex), the Working Group
transmitted the above 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
1 April 2014
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 the 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.
Juan García Cruz, a 36-year-old Mexican national of Nahua ethnicity, originally
from the State of Puebla, and Santiago Sánchez Silvestre, a 53-year-old Mexican national
of Mixtec ethnicity, originally from Tlaxiaco in the State of Oaxaca, were arrested on 6
June 1997 at 3 a.m. while they were sleeping at their home in Calle Pirineo y Océano
Tempestades, Colonia Santa Selene, Delegación Tiáhuac, Federal District, by Federal
District criminal investigation police officers, among them Alejandro Lezcano Puente and
José Luis Delgado Acosta. The police officers went to that address in response to
statements obtained under torture from a detainee named Rogelio Cuevas Fuentes. Mr.
Cuevas Fuentes had been taken into custody by federal agents because of his alleged links
to the Ejército Popular Revolucionario (EPR) (People’s Revolutionary Army), an armed
organization.
4.
The agents reportedly burst into Messrs. García Cruz’s and Sánchez Silvestre’s
home without producing an arrest warrant or a search warrant and proceeded to arrest them.
According to the source, there was no legal basis for their arrest.
5.
Following their arrest, Messrs. García Cruz and Sánchez Silvestre were taken to the
Office of the Attorney-General of the Federal District on Arcos de Belén Street in Mexico
City. They were then allegedly subjected to acts of torture involving asphyxiation through
the placement of plastic bags over their heads, beatings and death threats in order to force
them to acknowledge their links to the People’s Revolutionary Army. They were also
obliged to sign blank sheets of paper.
6.
Messrs. García Cruz and Sánchez Silvestre filed complaints with the Office of the
Attorney-General and with judicial authorities regarding the acts of torture they had
endured. Their claims were corroborated by the medical report issued by the Office of the
Attorney-General and signed by Dr. Martín García Uribe (available in the preliminary case
file (SC-7547)). However, those complaints were not investigated.
7.
From 6 June 1997, the day of their arrest, to 11 June 1997, Messrs. García Cruz and
Sánchez Silvestre were held without any type of court order whatsoever.
8.
The source indicates that on 11 June 1997 a detention order was issued against the
two individuals in question. The Seventh District Criminal Court of the Federal District (a
federal court) sentenced them to 3 years’ imprisonment and a fine of 2,000 pesos for illegal
possession of weapons reserved for the exclusive use of the Army and the Navy. The
convicted men served their full sentences in the Eastern Remand Prison for Men.
9.
However, on completion of their sentences, Messrs. García Cruz and Sánchez
Silvestre were not released. On 12 June 2000, they were notified that an arrest warrant had
been issued for them in the State of Mexico for their alleged participation in an attack on
police officers of that state which had occurred in October 1996 near the road to
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Teotihuacán. One state police officer, José Asunción Lara Vite, was killed and another
wounded in the attack, which was attributed to the People’s Revolutionary Army.
10.
On 4 April 2000, the home of their lawyer, Leonel Rivero Rodríguez, was broken
into by unidentified individuals who removed documents and his computer. On 7 May
2000, Mr. Rivero Rodríguez and his wife, María de los Ángeles Espinoza Sánchez, were
struck by a vehicle (make: Nissan) driven by Modesto Masías Tejada.
11.
Messrs. García Cruz and Sánchez Silvestre were brought to trial before the Third
Court of First Instance of the Judicial District of Nezahualcóyotl (a local court). In
September 2001, they were sentenced to 40 years’ imprisonment after being found guilty of
homicide, participating in organized crime, aggravated theft, inflicting bodily harm and
damaging property. The convicted men were taken to the Neza Bordo Xochiaca Centre for
Prevention and Social Rehabilitation in the State of Mexico to serve their sentences.
12.
The source asserts that it was only in 2002 that an investigation was carried out into
the complaints of torture lodged by the persons concerned. However, the investigation was
closed, with no findings being issued, when it was concluded that they had failed to file a
criminal complaint.
13.
According to the source, their arrest and detention are arbitrary since they do not
have, and never have had, a valid legal basis. These men’s criminal convictions were based
solely on confessions that had been extracted under torture and never properly verified,
despite the existence of evidence such as the medical report issued by the Office of the
Attorney-General and signed by Dr. Martín García Uribe.
14.
The source recalls that the Human Rights Committee has stated that in Mexico
“great evidentiary value is attached to the first confessions made before a police officer or
prosecutor and that the burden of proof that statements were not made as a result of torture
or cruel, inhuman or degrading treatment is not placed on the prosecution” (concluding
observations on the fifth periodic report of Mexico [CCPR/C/MEX/CO/5], para. 14).
15.
The Committee recalls that article 14, paragraph 3 (g), of the Covenant guarantees
the right not to be compelled to testify against oneself or to confess guilt. In its general
comment No. 20, paragraph12, the Committee states that “[i]t is important for the
discouragement of violations under article 7 that the law must prohibit the use of
admissibility in judicial proceedings of statements or confessions obtained through torture
or other prohibited treatment”. Having defendants bear the burden of proof in establishing
that their confessions were extracted under torture constitutes a violation of judicial
safeguards.
16.
Also relevant in this context is the Working Group’s Opinion No. 17/2008
(Lebanon) concerning Mr. Assem Kakoun, in which the Working Group stated that
deprivation of liberty is arbitrary when the deprivation results from a conviction based on
evidence obtained through torture.
17.
Furthermore, the judicial proceedings that led to the conviction of Messrs. García
Cruz and Sánchez Silvestre were fraught with serious due process violations. The
convictions were based solely on confessions obtained through torture and on purported
evidence submitted by the public prosecutor. The police officers who testified as witnesses
were unable to identify the spot where the defendants were arrested. Their testimony was
unsound and was obtained without regard for due process. Moreover, it is the testimony of
the captors themselves, namely the persons ultimately responsible for the torture inflicted
on the defendants.
18.
The source expresses its concern that, in breach of judicial guarantees, in Mexico
weight is given to confessions on the basis of the “principle of immediacy”, with the
assumption being that that defendants’ first statements are true, even if it is subsequently
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alleged that they were obtained through torture, because they were made without prior
coaching. It has been asserted that, in accordance with the principle of procedural
immediacy, the first statements of the accused should take precedence over subsequent
statements because they were produced without sufficient time to be rehearsed or to be
altered in order to advance the accused person’s cause.1
19.
The source adds that the defendants were not allowed to confront prosecution
witnesses. In the second trial, an officer who had survived the attack on the police and the
wounded police officer were unable to identify the accused as their attackers. The driver of
the van from which the shots were fired was also unable to identify them. The conviction
was based solely on the case presented by the public prosecutor.
20.
In addition, the source mentions the lack of interest shown by the public defenders in
the first trial (in a federal court) in carrying out their duties. They failed to inform their
clients that they had the right to remain silent and not to testify, and they took no steps to
request a confrontation with the prosecution witnesses or to present defence witnesses or
other evidence on behalf of their clients.
21.
At no point were these errors corrected by the courts, thereby violating the principle
of presumption of innocence and giving rise to serious due process violations.
22.
Following their conviction, on 11 May 2007, an application for amparo was filed
with the Second Collegiate Court of the Second Circuit in Toluca (Case No. 138/2007),
which then upheld the verdict.
23.
The source concludes that the detention of Messrs. García Cruz and Sánchez
Silvestre was arbitrary. According to the source, their detention also ran counter to article
17 of the Constitution.
Response from the Government
24.
The Government of Mexico has failed to respond to the communication addressed to
it on 17 June 2013. The deadline for doing so has now passed.
25.
In accordance with its methods of work, under such circumstances the Working
Group may proceed to adopt an opinion as to whether or not the deprivation of liberty of
Messrs. García Cruz and Sánchez Silvestre was arbitrary.
Investigations carried out by the Working Group
26.
The Working Group ascertained that Messrs. García Cruz’s and Sánchez Silvestre’s
case had been considered by the Inter-American Commission on Human Rights and the
Inter-American Court of Human Rights.
27.
Following the issuance of the Commission’s report and the subsequent referral of
the case to the Court, on 18 April 2013 (shortly before the case was due to be heard by the
Court), the Government ordered the release of these two men, as recommended by the
Commission, in view of the serious irregularities that had occurred during their trials.
28.
Consequently, at the time of the adoption of this opinion, Messrs. García Cruz and
Sánchez Silvestre are no longer being held in custody.
1 Cf. Supreme Court, Seventh Term, registration No. 245172, Semanario Judicial de la Federación, pp.
205–216, criminal law, p. 333.
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Discussion
29.
In accordance with paragraph 17 (a) of its methods of work, the Working Group is
authorized to render an opinion as to whether or not an act of deprivation of liberty is
arbitrary, notwithstanding the release of the person concerned. In view of the seriousness of
the alleged events, the Working Group has decided to issue an opinion in this regard.
30.
In the absence of information to the contrary, the Working Group considers that
Messrs. García Cruz and Sánchez Silvestre were detained on 6 June 1997 at their home in
the Federal District by Federal District criminal investigation police officers. Their
deprivation of liberty was based on statements — which, according to the source, federal
agents had obtained through torture — made by an imprisoned person, Rogelio Cuevas
Fuentes, who was accused of being involved in the People’s Revolutionary Army (EPR), an
armed organization. The officers raided Messrs. García Cruz’s and Sánchez Silvestre’s
home and arrested them without producing an arrest warrant or a search warrant. The
detainees were taken to the Office of the Attorney-General of the Federal District in
Mexico City, where they were subjected to acts of torture involving asphyxiation through
the placement of plastic bags over their heads, beatings and death threats with a view to
forcing them to acknowledge their links with the People’s Revolutionary Army and
obliging them to sign blank sheets of paper. Both detainees filed complaints with the Office
of the Attorney-General and judicial authorities regarding the acts of torture that they had
endured, which were corroborated by forensic doctors. However, although investigations
are mandatory in such cases, no investigation was carried out.
31.
It was only on 11 June 1997 that a detention order for Messrs. García Cruz and
Sánchez Silvestre was issued. The Seventh District Criminal Court of the Federal District (a
federal court) sentenced them to 3 years’ imprisonment and a fine of 2,000 pesos for illegal
possession of weapons reserved for the exclusive use of the Army and the Navy.
Consequently, from 6 to 11 June 1997, they were held without a court order, and their
detention during that period therefore lacked any legal basis.
32.
Although they served their sentences in full, they were not released. On 12 June
2000, they were notified of the existence of an earlier arrest warrant, never previously
referred to, that had been issued on the basis of their alleged participation in an attack on
State of Mexico police officers in October 1996, in which one police officer was killed and
another wounded.
33.
Messrs. García Cruz and Sánchez Silvestre were brought to trial before a state court
and, in September 2001, sentenced to 40 years’ imprisonment for homicide, participating in
organized crime, aggravated theft, inflicting bodily harm and damaging property.
34.
It was not until 2002 that an investigation was initiated into the complaints of torture
first lodged in 1997. The investigation was closed, without charges being brought against
the perpetrators, on the grounds that a criminal complaint had not been filed in due time.
35.
The Government did not challenge the source’s allegations concerning the torture
suffered by both the detainees and the sole witness for the prosecution. Furthermore, it
failed to conduct comprehensive investigations with a view to punishing the perpetrators. In
such circumstances, the prosecution’s evidence was inadmissible and could not serve as a
basis for charges, let alone a conviction, under articles 4 to 7, articles 10 to 14 and, in
particular, article 15 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment.
36.
The Working Group considers that the threats directed at the defence lawyers of the
wrongly indicted men constitute a violation of the right to legal representation in criminal
proceedings.
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37.
The Working Group further considers that the Government has not disputed the
claim that torture was used in the proceedings against the persons referred to in this
opinion, that they confessed without having the opportunity to know what they were
signing and that the defence lawyers were denied the opportunity to cross-examine the
prosecution witnesses.
38.
The Working Group considers that, for the period from 6 to 11 June 1997, the
deprivation of liberty of Messrs. García Cruz and Sánchez Silvestre was arbitrary since it is
“clearly impossible to invoke any legal basis justifying the deprivation of liberty”. This
constitutes grounds for determining that their detention was arbitrary within the meaning of
category I as defined in the Group’s methods of work.
39.
It further considers that the facts set out in paragraphs 33 to 35 and 37 to 39 above
constitute breaches of the standards of due process of such gravity as to establish that the
deprivation of liberty of Messrs. García Cruz and Sánchez Silvestre constitutes arbitrary
detention under category III of the Working Group’s methods of work.
Disposition
40.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Juan García Cruz and Santiago Sánchez Silvestre
during the period from 6 to 11 June 1997 was arbitrary within the meaning of
category I of the Working Group’s methods of work. During the period from 11
June 1997 to 13 April 2013, the day of their release, their detention was arbitrary
within the meaning of category III of the Group’s methods of work.
41.
The Working Group considers that the Government should provide appropriate
redress to these persons for the material and moral harm caused by 15 years and 11 months
of arbitrary deprivation of liberty.
42.
The Government should also expedite and broaden its investigations with a view to
imposing exemplary penalties on all those responsible, regardless of the political or
hierarchical level of the officials who ordered or participated in the acts of torture — and
their subsequent concealment — to which Messrs. García Cruz and Sánchez Silvestre were
subjected.
43.
The Government should also strengthen its education and information programmes
on the prohibition of torture, ensuring that they are fully included in the training of civil and
military law enforcement personnel, medical personnel, public officials and other persons
who may be involved in the custody, questioning or treatment of any individual subjected
to any form of arrest, detention or imprisonment.
44.
In the light of the allegations of torture regarding Messrs. García Cruz and Sánchez
Silvestre, the Working Group wishes to bring these allegations to the attention of the
Special Rapporteur on the question of torture.
[Adopted on 27 August 2013]