A/HRC/WGAD/2016/58

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-seventh session, 21-25 November

2016

Opinion No. 58/2016 concerning Paulo Jenaro Díez Gargari (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. Pursuant to General Assembly resolution 60/251 and

Human Rights Council decision 1/102, the Council assumed that mandate and most

recently extended it for a three-year period in its resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/30/69), on 23 June 2016 the

Working Group transmitted a communication to the Government of Mexico concerning

Paulo Jenaro Díez Gargari. The Government replied to the communication on 24 August

2016. 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 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 Covenant (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);

(e)

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

the grounds of discrimination based on birth, national, ethnic or social origin, language,

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

* In accordance with paragraph 5 of the methods of work, José Antonio Guevara Bermúdez did not

participate in the discussion of the present case.

United Nations

A/HRC/WGAD/2016/58

General Assembly

Distr.: General

30 January 2017

English

Original: Spanish

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disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

Submissions

Communication from the source

4.

Mr. Díez Gargari, born on 25 May 1967, is a Mexican national residing in Mexico

City, Federal District. He is a lawyer and works as a corporate legal adviser at Tecnología

Aplicada Infraiber S.A. de C.V., which owns an independent system for vehicular capacity,

revenue and level of service verification (SIVA) on toll roads.

5.

The source notes that, in 2011, Infraiber signed a contract with the government of

the Estado de Mexico for the installation and operation of SIVA on the state’s toll roads. In

2013, Infraiber began to install SIVA on the highway known as the “Circuito Exterior

Mexiquense” (Estado de Mexico ring road). The concession to operate the toll road had

been granted to a subsidiary of the concessions and construction group headed by Obrascon

Huarte Lain S.A. (OHL). Prior to the launch of the operational phase of SIVA on the ring

road, Infraiber had identified significant discrepancies between the figures for the

remaining unrecouped investment in the ring road, as publicly reported by the OHL Group

through the Mexican Stock Exchange, and the figures for the investment approved by the

state government. The source notes that Infraiber then requested confirmation from the state

government of the amount of the OHL Group’s investment, but no such confirmation was

ever received, and the attitude of both the OHL Group and the state government towards

Infraiber changed radically.

6.

The source notes that, on 9 May 2013, Infraiber personnel who were in the process

of installing SIVA were violently removed from the ring road by staff of the OHL Group,

leading to various legal proceedings, which remain under way. Infraiber subsequently

notified the authorities that the OHL Group had already recouped its investment in the ring

road, which, should, therefore, revert to the state government at no cost. In addition,

Infraiber reported that the OHL Group had engaged in accounting manipulation at the

expense of investors and the treasury of the Estado de Mexico. The source also notes that,

in August 2015, Mr. Díez Gargari was threatened by the authorities of the Estado de

Mexico.

7.

According to the information received, on 7 September 2015, the Attorney General’s

Office led an operation involving more than 10 officers of the Federal Criminal

Investigation Police to find Mr. Díez Gargari and bring him in to the Federal Prosecution

Service to provide a witness statement in response to a preliminary investigation initiated

on the basis of a complaint brought by the OHL Group. The source notes that the operation

was conducted in the street at around 2.30 p.m. when Mr. Díez Gargari had left his office

and was driving in his car. According to the information received, two trucks stopped Mr.

Díez Gargari’s vehicle. The agents showed Mr. Díez Gargari a copy of the order requiring

his presence to make a witness statement.

8.

The source notes that the police officers put a firearm in Mr. Díez Gargari’s car

while it was being searched, which gave the Attorney General’s Office a sufficient pretext

— once Mr. Díez Gargari had been brought in to give his witness statement — to change

his legal status and consider him a suspect in a new preliminary investigation and to detain

him for 52 hours on the premises.

9.

The source alleges that the weapon was planted, an allegation corroborated by

surveillance footage taken by a closed-circuit camera of a commercial establishment near

where Mr. Díez Gargari was arrested. On the basis of the video footage, the Attorney

General’s Office subsequently conducted a brief investigation and initiated criminal action

against its agents, whom it suspected of having committed the offences referred to in

articles 248 bis and 255 of the Federal Criminal Code. The source notes that the competent

court issued an order for the pretrial detention of 10 officers of the Federal Criminal

Investigation Police on charges of evidence tampering with the intent to frame Mr. Díez

Gargari on a charge of unlawfully carrying a firearm. The source stresses that this was a

ploy to legitimize Mr. Díez Gargari’s arrest and clearly demonstrates its arbitrary character.

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10.

The source notes that this finding was not, however, sufficient for the official of the

Prosecution Service heading the inquiry to decide, during the preliminary investigation of

Mr. Díez Gargari for the alleged unlawful carrying of a firearm, not to bring criminal

proceedings against him, since the official claims that evidence is still being gathered and

that the matter will be resolved at the appropriate stage of the procedure. Officials of the

Prosecution Service told Mr. Díez Gargari’s lawyers that they would withhold any decision

not to prosecute until such time as a criminal court judge convicted the officers of the

Federal Criminal Investigation Police, a process that could take years.

11.

Consequently, Mr. Díez Gargari continues to be suspected of the offence of

unlawfully carrying a firearm. With regard to his legal status, he has been temporarily

released on bail, and his freedom of movement remains limited by the Federal Criminal

Investigation Police. The source notes that Mr. Díez Gargari cannot leave Mexico City

without requesting authorization from the Prosecution Service. The source maintains that

there is still a strong chance that Mr. Díez Gargari will be arrested again for the offence of

unlawfully carrying a firearm, despite sufficient evidence to prove his innocence.

According to the source, this situation seriously jeopardizes the safety of Mr. Díez Gargari

and his family.

12.

The source adds that the authorities have committed other irregularities, including

the illegal retrieval of data from Mr. Díez Gargari’s mobile telephone without a warrant and

the alleged illegal search of Infraiber’s offices on 11 September 2015 by over 20 officers of

the Federal Criminal Investigation Police, agents of the Prosecution Service and experts.

The source indicates that both the investigation of Mr. Díez Gargari as the party suspected

of the offence of unlawfully carrying a firearm and the investigation into the offence of

unlawfully intercepting private communications are being led by a unit of the Attorney

General’s Office called the General Directorate of Special Affairs. The source contends that,

according to the law, the alleged offences do not fall within this Directorate’s remit. The

source specifies that it is precisely the Prosecution Service — from which Mr. Díez Gargari

was required to request permission to leave the country — that he accuses of having

illegally intercepted data from his mobile telephone while it was in the Service’s custody.

13.

The source notes that Mr. Díez Gargari lodged several complaints regarding his

detention as well as regarding evidence tampering by the federal agents who planted the

weapon and the illegal retrieval of data from his mobile telephone. These complaints were

referred to the Attorney General’s Office and to the National Human Rights Commission.

In addition, a request for precautionary measures was filed with the Inter-American

Commission on Human Rights.

14.

The source contends that the case of Mr. Díez Gargari falls within categories I, II

and III of the categories applicable to the consideration of cases by the Working Group.

Response from the Government

15.

The Working Group transmitted a communication to the Government of Mexico on

23 June 2016, indicating that it expected a response no later than 22 August 2016. Although

the Government did not request an extension of this time limit, it did not reply until 24

August 2016. Given that its response was submitted late without an extension request, the

Working Group cannot accept it as having been submitted on time. However, as indicated

in paragraphs 15 and 16 of its methods of work, and in accordance with its practice, the

Working Group will use all relevant information to assess the facts in this case.

Comments from the source

16.

The late response of the Government was transmitted to the source, but the source’s

subsequent reply did not contain any new information that would justify the transmittal of

further communications to the State.

Discussion

17.

In the absence of a response from the Government, the Working Group has decided

to render the present opinion, in conformity with paragraph 15 of its methods of work. The

same applies when a Government’s response is not received within the time limit, except

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that the Working Group may rely on any relevant information it believes to be critical to its

assessment of the source’s allegations. The Working Group then shares the late response

with the source for its further comments.

18.

In the present case, the source has provided a very detailed set of the facts alleged,

together with accompanying evidence. Mr. Díez Gargari is a lawyer working for a company

contracted to help the Estado de Mexico oversee a toll road with a view to ensuring that,

once the return on the investment has been made, the local government receives the

proceeds from the toll road and that, at the same time, user fees are reduced. In this context,

Mr. Díez Gargari’s employer uncovered a sizeable corruption scheme — a discovery that

has led to the systematic harassment of Mr. Díez Gargari and his employer. The facts

alleged were presented in a coherent and credible manner and were not refuted in the

Government’s belated response. Consequently, the source has established a prima facie

case.

19.

The Working Group has in its jurisprudence established the ways in which it deals

with evidentiary issues. If the source has established a prima facie case for breach of

international requirements constituting arbitrary detention, the burden of proof should be

understood to rest upon the Government if it wishes to refute the allegations (see

A/HRC/19/57, para. 68). In the present case, the Government has failed to submit its reply

within the time limit and has therefore forfeited its right to challenge the prima facie

credible allegations made by the source.

20.

The Working Group considers that the facts alleged by the source have been

established. Mr. Díez Gargari was arrested on 7 September 2015 and was released on bail

on 9 September 2015. At the time of his arrest, the law enforcement officers served Mr.

Díez Gargari with an order requiring his presence to make a witness statement. However,

following his arrest, the officers mysteriously discovered a firearm in his vehicle.

Consequently, Mr. Díez Gargari was accused of breaking the law on the use of firearms and

was taken into custody on those grounds. Mr. Díez Gargari subsequently filed a complaint

against the officers for planting the firearm in his car in order to charge him with an offence

and submitted as evidence a video from a closed-circuit camera. These facts fit perfectly

into the pattern of harassment to which Mr. Díez Gargari has been subjected in recent years.

As such, they provide further examples of his being singled out and subjected to political

persecution for his work and the work of his employer, in violation of international laws,

especially article 26 of the Covenant, on discrimination. These facts constitute a violation

falling within category V.

21.

At the time of Mr. Díez Gargari’s arrest, there appear to have been legitimate

grounds for it: his role as a witness. However, the circumstances that led to his being

charged with possession of a firearm support the conclusion that there were no justified

grounds for his arrest — only a plan to entrap him. Accordingly, it must be concluded that

Mr. Díez Gargari’s arrest and detention have no legal basis and are in violation of article 9

(1) of the Covenant, thereby constituting an arbitrary deprivation of liberty that falls within

category I. The Working Group notes that Mr. Díez Gargari was held for two days and was

later released on bail. Any detention, however brief, which lacks a legitimate basis is

arbitrary. In the present case, however, it should be noted that his initial detention has been

continued in the form of restrictions on his freedom that, to date, lack any foundation in law.

Disposition

22.

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

The deprivation of liberty of Paulo Jenaro Díez Gargari, being in contravention of

articles 9 (1) and 26 of the International Covenant on Civil and Political Rights, is

arbitrary and falls within categories V and I.

23.

The Working Group requests the Government of Mexico to take the necessary

measures to remedy Mr. Díez Gargari’s situation without delay and to fulfil its international

obligations under the Universal Declaration of Human Rights and the Covenant.

24.

Taking into account all the circumstances of the case, in particular the fact that the

victim was released on bail, the Working Group considers that an appropriate remedy

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would be to terminate the proceedings currently under way against Mr. Díez Gargari,

including the immediate removal of the restrictions on his freedom, and to satisfy the right

to compensation, as set forth in article 9 (5) of the Covenant.

Follow-up procedure

25.

In accordance with paragraph 20 of its methods of work, the Working Group

requests the source and the Government to provide it with information on action taken in

follow-up to the recommendations made in the present opinion, including:

(a)

Whether the proceedings currently pending against Mr. Díez Gargari have

been terminated and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Díez

Gargari;

(c)

Whether an investigation has been conducted into the violation of Mr. Díez

Gargari’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made

to harmonize the laws and practices of the Government with its international obligations in

line with the present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

26.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

whether further technical assistance is required, for example, through a visit by the

Working Group.

27.

The Working Group requests the source and the Government to provide the above

information within six months of the date of the transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action

would enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

28.

The Working Group recalls that the Human Rights Council has encouraged all

States to cooperate with the Working Group and has requested them to take account of its

views and, where necessary, to take appropriate steps to remedy the situation of persons

arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have

taken.1

[Adopted on 25 November 2016]

1 See Human Rights Council resolution 33/30, paras. 3 and 7.