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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-fourth session

(30 November-4 December 2015)

Opinion No. 56/2015 regarding Nestora Salgado García

(Mexico)

1.

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

the Commission on Human Rights, which extended and clarified the Working Group’s

mandate in its resolution 1997/50. The Human Rights Council assumed the mandate in its

decision 1/102 and extended it for a three-year period in its resolution 15/18 of 30

September 2010. The mandate was extended for a further three years in resolution 24/7 of

26 September 2013.

2.

In accordance with its methods of work (A/HRC/30/69), on 15 June 2015 the

Working Group transmitted a communication to the Government of Mexico concerning

Nestora Salgado García. The Government replied to the communication on 18 November

2015. The State is a party to the International Covenant on Civil and Political Rights.

3.

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 March 2016

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 aims towards or can result in ignoring the equality of human

rights (category V).

Submissions

Communication from the source

4.

Nestora Salgado García holds the nationality of both the United States of America

and Mexico. She is a member of the Tlapanec indigenous group and is regional coordinator

of the community police force in the municipality of Olinalá in the State of Guerrero. In the

course of her official duties, she arrested several young people on suspicion of selling

drugs, and she also arrested the municipal legal representative, Armando Patrón Jiménez,

on suspicion of tampering with evidence at the scene of a double murder. The source

submits that, because of these actions, Ms. Salgado García was arrested on 21 August 2013.

She was transferred to the “Noroeste” (North-west) Women’s Federal Centre, the

maximum security prison in the State of Nayarit. She was subsequently charged with

kidnapping the municipal legal representative and the young people.

5.

The source reports that, at 6 p.m. on 21 August 2013, Ms. Salgado García was

forcibly arrested by members of the Marine Corps, the Mexican Army and the state police

near Olinalá in La Montaña region in the State of Guerrero. The soldiers did not hold an

arrest warrant and reportedly did not identify themselves at the time of the arrest. Ms.

Salgado García informed them that she was a United States citizen, showed the soldiers a

passport issued by that country and asked why she was being arrested. The authorities

confiscated her passport, thereby avoiding the need to immediately notify the consulate and

allow her access to consular assistance.

6.

Ms. Salgado García was taken from Olinalá to Chilpancingo, also in the State of

Guerrero. Upon arrival in Chilpancingo, she was transferred by helicopter to Acapulco,

Guerrero, without being brought before a judge who could review the legality of her

detention. In Acapulco, Ms. Salgado García was taken to a room inside a facility that was

neither a prison nor a court. Once she was in the room, a man stripped her and searched her.

Later, she was forced to sign a number of documents that she was not allowed to read.

7.

The next morning, she was put on a private jet and taken to Tepic, Nayarit. In Tepic,

she was detained in El Rincón, a federal maximum security prison for dangerous criminals.

The source points out that at the time of her arrest and detention (on 21 August 2013) she

was not informed of the reasons for either the arrest or the detention, nor was she informed

of the possible criminal charges against her. Furthermore, she was not allowed to contact

her family. The application for amparo subsequently filed by her family to challenge the

incommunicado detention was rejected without any justification or reason being given. She

did not receive any legal advice from a lawyer, and the prison authorities, acting without

any justification or judicial authorization, arbitrarily classified her as a “very dangerous”

prisoner.

8.

The source reports that, five days after she was detained in El Rincón, a state court

in Acapulco took the exceptional measure of ordering her pretrial detention in Tepic on

charges of kidnapping (a state criminal offence). On 21 December 2013, a state court in

Tlapa, Guerrero, also issued a pretrial detention order against Ms. Salgado García based on

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charges of kidnapping and other harmful acts. Lastly, on 14 January 2014, a federal court in

Nayarit ordered her pretrial detention on charges of participating in organized crime (a

federal criminal charge), on the basis of the same facts alleged before the state courts. The

source maintains that none of these courts referred to her arrest or pretrial detention, nor did

they explain the reason for the extreme measure of placing the accused in a federal

maximum security prison more than 1,100 kilometres from the alleged scene of the crime.

Normally, persons in pretrial detention are held in a local prison. The authorities also failed

to explain why the case of Ms. Salgado García constituted an exceptional case that would

justify her detention.

9.

During the state and federal proceedings, Ms. Salgado García was never brought

before a judge and was not allowed to defend herself in court, as is required under

international instruments that are binding on Mexico. With regard to legal advice, the

source maintains that, despite the fact that international law that is binding on Mexico

requires accused persons to be granted immediate access to their lawyers, the prison

authorities did not allow Ms. Salgado García to meet with her lawyers until 8 August 2014,

almost one year after her arrest. When one of her lawyers was finally allowed to meet with

her, on 8 August, the meeting lasted for just 45 minutes and the lawyer was not allowed to

bring a pen or notebook.

10.

On 31 March 2014, a federal court in Guerrero ordered Ms. Salgado García’s

immediate release and she was acquitted of the federal charges against her. The federal

judiciary recognized that, having been established in accordance with Mexican law and

being authorized by the State, the community police force was therefore part of the State

public security system. Decisions and actions taken by the community police to detain

individuals accused of offences must be regarded as acts of State authority. Lastly, the court

stated that, in the light of all the evidence, the community police could not be considered to

be a criminal organization, as alleged. Given that Ms. Salgado García had acted in

accordance with her official mandate as coordinator of the community police force, she had

not committed any crime and should be released immediately. However, the source reports

that, despite this explicit order for her release, and despite the fact that the state charges

against her were based on the same alleged facts as the dismissed federal charges, Ms.

Salgado García remains detained in the “Noroeste” Women’s Federal Centre in Nayarit.

11.

On 1 April 2014, her defence lawyers submitted the federal court’s decision to the

state courts in Guerrero, together with a request for her immediate release. At the time of

submission of this communication, the State courts had not yet responded to Ms. Salgado

García’s requests and proposals, thereby violating the two-week deadline stipulated under

Mexican law. On 8 June 2014, the defence counsel put forward further arguments in her

favour and called for her immediate release. Once again, the courts failed to respond. On 26

September 2014, the defence once again called for her release and, until such time as she

was released, an immediate improvement in her conditions of detention.

12.

The source reports that the state proceedings were transferred to the court in Tlapa

and, subsequently, to another State, Colima. Despite the fact that international law that is

binding on Mexico requires judicial proceedings to be held within a reasonable time, the

state courts have not yet responded to any of the requests made on behalf of Ms. Salgado

García. The source also claims that the judiciary has hindered the processing of the case

through constant moves and transfers, making Ms. Salgado García’s defence almost

impossible.

13.

Since 22 August 2013, Ms. Salgado García has remained in solitary confinement in

a small cell that is kept continuously lit. Only rarely is she allowed to leave her cell. If she

wants clean water, she has to purchase it, which her family has been doing for her

throughout the duration of her imprisonment. On numerous occasions, however, prison

officials have denied her access to clean water.

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14.

Ms. Salgado García is at constant risk, as she is not receiving proper medical

treatment. She needs constant medication and physical therapy. The prison denied her

access to this treatment for almost a year. After a number of requests made by her defence

counsel, the prison finally started giving her an assortment of 10 pills. However, the prison

staff did not identify the medications and Ms. Salgado García had an adverse reaction to

one of them, so she has refused to take any pills that she does not recognize. Currently,

prison officials are not giving her any medication. Moreover, the prison authorities refused

to treat her for toothache. After many complaints, and following direct intervention by the

United States embassy, she was able to receive dental care and have the damaged tooth

extracted.

15.

The source also claims that the prison authorities have carried out reprisals in

response to visits made by United States embassy officials, her lawyers, members of the

Mexican parliament and other authorities. The prison refuses to provide her with clean

water, even though it has been paid for. The authorities have even refused to allow her to go

for a weekly walk outside her cell; the walks take place only when the guards allow it. The

prison sends her food to her cell so that she will remain locked up there. In addition to these

acts of reprisal, the authorities have not provided her with a prison uniform.

16.

The source also submits that, in addition to her access to her lawyers being

restricted, Ms. Salgado García is also not allowed to see her family on a regular basis.

According to the source, for a period of time she was not able to receive visits from any of

her family members, as her daughter had left Mexico in response to death threats and her

sister was denied access to the prison. In order to contact other members of her family,

including her husband, Ms. Salgado García has to make a reverse charge call to a single,

designated number in Mexico. She is allowed to do this only once every eight days, for a

maximum of 10 minutes each time, but even this length of time is not always granted. She

is not allowed to make international calls, which constitutes a further personal hardship for

her, as many members of her family are in the United States.

17.

The source reports that, in view of the information provided, on 28 January 2015 the

Inter-American Commission on Human Rights considered that the matter prima facie met

the requirements of seriousness, urgency and irreparable harm and issued Precautionary

Measure No. 455-13 requesting Mexico to adopt the necessary measures to ensure the life

and personal integrity of Ms. Salgado García, providing proper treatment recommended by

specialists.

18.

In its reply to an urgent appeal issued by the Working Group and other special

procedures mandate holders on 13 March 2015, the Government of Mexico reported that,

since Ms. Salgado García had first been deprived of her liberty, various measures had been

taken to protect her integrity. After the Commission issued the precautionary measures

referred to above, three follow-up meetings were held to monitor the implementation of

these measures. These meetings took place on 10 February, 18 February and 2 March 2015.

19.

Regarding the source’s claim that Ms. Salgado García is not receiving appropriate

medical treatment, the Government of Mexico informed the Working Group that she had

undergone medical examinations at the Civil Hospital in Tepic, Nayarit, in order to obtain a

full assessment of her health. The medical diagnoses had been carried out on 26 February

and 6 March 2015. A preliminary medical report had been issued on 11 March 2015,

ordering additional medical examinations and some specific treatments. At the time when

the Government of Mexico issued its report, the results of the final medical report were still

pending.

20.

The Government also submitted information on Ms. Salgado García’s living

conditions in the “Noroeste” Women’s Centre. According to the authorities, she does

receive telephone calls from her relatives. The authorities also reported that, between 22

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August 2013 and 15 February 2015, she received 40 visits from relatives and from her

lawyers.

21.

The Executive Commission for Victim Support has provided Ms. Salgado García

with victim support. The Commission has visited her on several occasions in the

“Noroeste” Women’s Federal Centre to interview her and provide her with legal, medical

and psychological support services. The authorities state that, in an interview conducted on

18 February 2015, Ms. Salgado García reported that she had been seen by specialist

physicians and a masseuse, which had improved her physical and emotional health, and that

she had access to medication. She also indicated that she had been in contact with her

defence lawyers. In addition, at a meeting held on 26 February 2015, Ms. Salgado García

asked the Executive Commission for Victim Support to assign a psychologist who could

begin giving her psychotherapy. She also asked the Commission to request the National

Human Rights Commission to follow up her complaint.

22.

The Government also stated that the National Human Rights Commission had

initiated proceedings in three separate cases on the basis of the complaints submitted by

Ms. Salgado García. That Commission had also visited Ms. Salgado García a number of

times and engaged in two reconciliation procedures with the General Directorate of Social

Rehabilitation and Prevention, which had been agreed on 13 June 2014 and 22 December

2014. Lastly, the Commission had stated that Ms. Salgado García had not been subjected to

ill-treatment by officials at the “Noroeste” Women’s Federal Centre and that this had been

corroborated by Ms. Salgado García herself.

23.

The Government said that, once Ms. Salgado García had undergone a

comprehensive medical examination, and depending on the results of that examination, the

Ministry of the Interior of the State of Guerrero would apply for her transfer to the Tepepan

Women’s Reintegration Centre in Mexico City, by agreement with her representatives.

24.

On 11 May 2015, the source reported that on 5 May 2015 Ms. Salgado García had

begun a hunger strike protesting against her detention and her living conditions. On 3 June

2015, the source reported that the hunger strike was continuing and that as a result Ms.

Salgado García’s health had worsened considerably.

25.

The source states that the establishment of community police forces in indigenous

communities is based on indigenous communities’ right to govern themselves, to have their

own identity as peoples and to decide their own present and future. This right is recognized

in the International Labour Organization Indigenous and Tribal Peoples Convention, 1989

(No. 169), in article 2 of the Constitution of Mexico and in Act No. 701 on the Recognition,

Rights and Culture of Indigenous Peoples and Communities in the State of Guerrero.

Pursuant to this Act, the community police force is an auxiliary public security body that

forms part of the State public security system.

26.

The source contends that Ms. Salgado García was arrested because of her efforts to

combat municipal corruption and organized crime. She was arrested by military personnel

and State police officers who did not show any arrest warrant. Those who arrested her did

not inform her of the reasons for her arrest or of the charges against her. She remained

disappeared for days. Following her arrest, she was transferred to Tepic, the capital of the

State of Nayarit, which lies 1,100 kilometres from her place of origin. When she revealed

that she was a United States citizen, those who arrested her confiscated her United States

passport, thereby preventing her from obtaining access to the consular assistance to which

she was entitled.

27.

Ms. Salgado García was not brought before a judge, which meant that there could be

no judicial review of the lawfulness of her detention. The application for amparo

subsequently filed by her family members to challenge her incommunicado detention was

dismissed without any legal basis or reason being given. The prison authorities immediately

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classified her as a “very dangerous” prisoner, without any justification or authorization by

the courts.

28.

Ms. Salgado García was charged with participating in organized crime (a federal

charge) and kidnapping (a state charge). All the charges against her are based on actions

carried out by the community police force of Olinalá as a legally recognized authority in the

exercise of its public security duties.

29.

She was arbitrarily denied access to her family members and her lawyers for almost

a year.

30.

Taking all these circumstances into account, a federal court in Guerrero ordered her

immediate release with regard to the federal charge of participating in organized crime. The

order was not obeyed, however, and Ms. Salgado García remains in detention. The federal

court found that the acts for which she is being detained were carried out in her role as a

community police officer; in other words, in the exercise of her public security

responsibilities.

31.

The constant transfers of Ms. Salgado García from one detention centre to another in

different States have made it very difficult for her to enjoy the right to a properly

substantive and professional defence.

32.

In its reply to the urgent appeal issued by the Working Group and the special

rapporteurs referred to earlier, the State did not rebut or refute any of the allegations set out

above.

33.

The source concludes that the detention of Ms. Salgado García runs counter to

articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the

International Covenant on Civil and Political Rights, to which Mexico is a party. Her

detention is arbitrary, given the serious violations of her right to due process and judicial

guarantees, as outlined above.

Response from the Government

34.

In the application, the source requested both an urgent appeal and a communication

under the regular procedure. Since the case met the requirements for an urgent appeal, the

Working Group, together with other special procedures mandate holders, issued such an

appeal on 13 March 2015. The initial reply, submitted by the Government on 21 April

2015, was in response to that urgent appeal. Subsequently, on 18 November 2015, the

Government submitted a reply to the communication, in which it repeated its reply to the

urgent appeal. Although the reply was submitted late, it will still be considered, as it is

identical to the reply to the urgent appeal and addresses, in part, the questions raised in the

communication.

35.

However, the reply to the urgent appeal merely denied the allegations and stated that

the federal court had dismissed the case against Ms. Salgado García, who was no longer in

federal custody. The Government also stated that Ms. Salgado García was being held in

state custody and that the Federal Government therefore had no involvement in her case or

her continued detention.

Discussion

36.

The source is reliable and highly credible, given that the substantive part of the

source’s allegations is fully corroborated by the Government’s reply. The subsequent case

before the Working Group is simple and can be summarized as follows.

37.

Ms. Salgado García holds the nationality of both the United States of America and

Mexico. She is an advocate for the indigenous population in the State of Guerrero, Mexico.

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On 21 August 2013, Mexican soldiers and marines arrested her, even though there were no

charges against her and no manifestly criminal activity had taken place. The source claims

that Ms. Salgado García showed her United States passport but that it was ignored, which

meant that the consulate could not be immediately notified. The source did not address the

issue of her dual nationality, however, because at the time of the events Ms. Salgado García

was in Mexico, the second State where she holds citizenship.

38.

The reply received failed to provide justification for the local criminal case

subsequently brought against her. The current situation of the case is disturbing.

39.

Firstly, there is no doubt that both the arrest and detention of Ms. Salgado García

without charges being laid against her are illegal and therefore arbitrary. Moreover, the fact

that the Army arrests civilians for alleged crimes when national security is not at risk is of

concern to the Working Group, in view of the danger faced by civilians in such situations.

40.

In addition, the ongoing criminal case against Ms. Salgado García that is based on

the same facts, when she has already been acquitted under the federal justice system, is

unusual and violates the right not to be tried twice for the same acts. The federal forces

arrested her; it is unclear why they released her and handed her over to the custody of the

state authorities. It would seem that the Federal Government should ensure that an order

issued by a federal court is enforced within its territory. In addition, federal States have

international obligations that must be implemented within their territory. Mexico has a

continued responsibility to ensure Ms. Salgado García’s release, at least on the basis of its

own court’s judgment. In short, the ongoing detention of Ms. Salgado García has no legal

basis, in the Working Group’s view, and thus falls within category I.

41.

For almost a year, Ms. Salgado García was denied access to a lawyer, and during

that same period she was not brought before a judge or court, in violation of principles 9, 10

and 11 of the United Nations Basic Principles and Guidelines on Remedies and Procedures

on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court

(A/HRC/30/37, annex). These principles follow from the right to a fair trial, which includes

the right to be tried without undue delay, as set out in article 10 of the Universal

Declaration of Human Rights and article 14 of the International Covenant on Civil and

Political Rights. This violation suffered by Ms. Salgado García falls within category III.

42.

Also, it appears that she was persecuted because of her work in defence of the rights

of the indigenous population. The Working Group has considered similar situations in the

same country at its recent sessions (see Opinion Nos. 23/2014, 18/2015 and 19/2015). The

Working Group is deeply concerned about the existence of what appears to be a pattern of

targeting human rights defenders. While the abuse falls within category II in the

categorization of arbitrary detention, the Working Group is also of the view that the matter

should be referred to the relevant special procedure.

43.

With regard to Ms. Salgado García’s health, the Working Group welcomes the

positive steps taken by the Government of Mexico and requests that the Government

maintain its goodwill to guarantee quality treatment, in full consultation with Ms. Salgado

García’s family members. There have, however, been numerous allegations concerning her

conditions of detention and the Government is requested to fully address those. The

Working Group will also refer the matter to the Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment for proper follow-up to ensure that

Ms. Salgado García is not revictimized.

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Disposition

44.

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

The Working Group concludes that the arrest and subsequent detention of Ms.

Salgado García fall within categories I, II and III of the categories applicable to the

consideration of cases submitted to the Working Group.

45.

Consequent upon the opinion rendered, the Working Group requests that the

Government of Mexico take the necessary steps to remedy the situation, releasing Ms.

Salgado García and providing her with suitable compensation.

46.

The Working Group will refer the situation to the Special Rapporteur on the

situation of human rights defenders and the Special Rapporteur on the question of torture.

[Adopted on 4 December 2015]