A/HRC/WGAD/2017/23

GE.17-09646 (E) 250717 260717

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Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its seventy-eighth session, 19-28 April 2017

Opinion No. 23/2017 concerning Pablo López Alavéz (Mexico)1

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 the mandate of the

Commission. The mandate of the Working Group was most recently extended for a three-

year period in Council resolution 33/30 of 30 September 2016.

2.

In accordance with its methods of work (A/HRC/33/66), on 8 February 2017 the

Working Group transmitted to the Government of Mexico a communication concerning

Pablo López Alavéz. The Government did not reply to the communication on time. 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,

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

part in the discussion of the present case or in the adoption of this opinion.

United Nations

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General Assembly

Distr.: General

13 June 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.

Pablo López Alavéz, born on 17 April 1969, is a farmer and defender of ecological,

indigenous and community rights. Mr. López Alavéz has been a leader, actively defending

the forests in San Miguel and San Isidro Aloapam against allegedly illegal deforestation

programmes for more than 20 years.

5.

The source reports that Mr. López Alavéz has held public office in his community,

including as community police officer, member of the Drinking Water Committee, treasurer

of the Roads Committee, president of the Community Bus Committee and president of the

High Schools Committee.

6.

The source also reports that Mr. López Alavéz has been deprived of his liberty in the

past for his community and public role as part of what the source describes as the

criminalization of social protest. Specifically, in 2000, he was detained, charged and

convicted on trumped-up charges in relation to attacks on lines of communication. He was

subsequently released following the decision of the Second Collegiate Court of the

Thirteenth Circuit to grant him the remedy of amparo on grounds that his human rights had

been violated by virtue of his conviction.

7.

According to the information received, Mr. López Alavéz was deprived of his

liberty on 15 August 2010 in Río Virgen, Ixtlán de Juárez, Oaxaca, where he was riding in

his truck with his family when they were pulled over by another truck. Fifteen men in black

clothing with their faces covered got out of the truck carrying rifles, tied Mr. López Alavéz

up and forced him to get into their vehicle. The men did not identify themselves, produce

an arrest warrant or explain the factual or legal basis for his arrest. After allegedly being

disappeared overnight, he was committed to the prison of Villa de Elta, Oaxaca, on the next

day, 16 August 2010.

8.

The source states that Mr. López Alavéz’s ongoing judicial detention without a

conviction is part of a criminal trial that began in 2007 (case No. 102/2007) for the alleged

offence of aggravated homicide in relation to events that took place on 18 June 2007. The

detention order under which Mr. López Alavéz was deprived of his liberty was issued on 6

December 2010 by the criminal court of Villa de Elta. In the order, the judge describes the

evidence gathered during the initial phase of proceedings and concludes that an offence was

committed and that Mr. López Alavéz is the likely perpetrator.

9.

According to the source, after the more than six years that Mr. López Alavéz has

been in custody, the criminal proceedings remain at the investigation stage. Consequently,

there has been no decision by a court of first instance.

10.

In the light of the foregoing, the source draws attention to the information contained

in recommendation No. 11/2015 of the Office of the Human Rights Ombudsman of

Oaxaca, which looked into Mr. López Alavéz’s legal and procedural situation and found

that significant breaches of due process had been committed during the proceedings.

11.

The source underscores that the main breaches of due process identified by the

Office take the form of irregularities in the evidence on which the decision to deprive Mr.

López Alavéz of his liberty was based. A number of established procedures were not

followed when the evidence was submitted, revealing a lack of precision, care and

coordination in how the evidence was collected, as well as inconsistencies between the

dates, times and places of the alleged events and the procedures undertaken, and no

involvement of experts. Furthermore, the source highlights the Office’s finding that the

delays in the investigation phase have been excessive and unjustified and, in any case, not

in keeping with the time frames set in criminal law, thereby constituting an additional

violation of the rights and safeguards to which Mr. López Alavéz is entitled.

12.

The source alleges that the real reason behind Mr. López Alavéz’s detention is his

work defending the environment in the face of political and economic power groups in the

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context of a dispute over the seemingly irregular deforestation of the Oaxaca forests, a

dispute in which Mr. López Alavéz took a leading role. The source cites violations of the

human rights to freedom of expression, freedom of association and participation in public

affairs, enshrined in articles 19 to 21 of the Universal Declaration of Human Rights, articles

19, 21, 22 and 25 of the International Covenant on Civil and Political Rights and articles

13, 15, 16 and 23 of the American Convention on Human Rights, as evidence that Mr.

López Alavéz’s detention is arbitrary, as defined by the Working Group (category II).

13.

The source further argues that the violations of legal safeguards, including due

process, enshrined in article 14 of the Covenant, are also grounds for finding Mr. López

Alavéz’s detention arbitrary, as defined by the Working Group (category III).

Response from the Government

14.

On 8 February 2017, the Working Group transmitted the source’s allegations to the

Government of Mexico in keeping with its usual practice. The Working Group requested

the Government to submit, by 10 April 2017, detailed information on the circumstances of

Mr. López Alavéz’s detention and his current situation. The Working Group also requested

the Government to clarify the legal basis for his continued detention and to provide details

on how his deprivation of liberty complies with international human rights law and, in

particular, with the treaties to which Mexico is a party.

15.

On 6 April 2017, the Working Group received a request from the Government to

extend the deadline for submitting its reply by one month. The Working Group found that

the extension request did not fully meet the criterion established in paragraph 16 of its

methods of work and, therefore, granted a partial extension of one week. The Government

sent its reply to the Working Group’s communication on 1 July 2017. However, the

Working Group cannot accept a reply that is not submitted within the allotted period.

Discussion

16.

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.

17.

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 chosen not to challenge

the prima facie credible allegations made by the source.

18.

The Working Group recalls its previous opinions regarding Oaxaca State in Mexico2

and considers that the allegations in the present case reveal a pattern of violations observed

in similar prior cases.

19.

Pablo López Alavéz is a farmer and defender of ecological, indigenous and

community rights. For the past 20 years, he has led efforts to defend the forests in San

Miguel and San Isidro Aloapam against deforestation projects. In that capacity, he has held

various public posts in his community. He had already been detained in the past under laws

against social protest.

20.

On 15 August 2010, Mr. López Alavéz was arrested in Río Virgen, Ixtlán de Juárez,

Oaxaca by 15 unidentified men in black clothing with their faces covered and armed with

rifles. They tied him up and forced him to get into a vehicle, without any explanation and

without producing an arrest warrant, under circumstances that can justifiably be described

as ill-treatment or torture. On the next day, Mr. López Alavéz was committed to the prison

of Villa de Elta, Oaxaca. Although he was held in prison and accused of being involved in

an alleged homicide committed in June 2007, his detention order was not issued until 6

December 2010. Moreover, no court decision has yet been taken in the case.

2 Opinions No. 23/2014, No. 19/2015 and No. 17/2016.

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21.

The Working Group takes note of Mr. López Alavéz’s situation with regard to the

procedural irregularities raised by the source, based on recommendation No. 11/2015 of the

Office of the Human Rights Ombudsman of Oaxaca, which, after assessing the situation,

reached the conclusion that significant violations of due process had been committed in this

case, such as evidentiary irregularities; lack of precision, care and coordination in how the

evidence was collected; inconsistencies in the dates, times and places of the alleged events;

failure to involve experts as required by law; and excessive and unjustified delays in the

investigation. Therefore, the Working Group considers that the failure to comply with

international standards on the right to an impartial trial, as established in the Universal

Declaration of Human Rights and other relevant international instruments ratified by

Mexico, is so serious as to make the deprivation of liberty of Mr. López Alavéz arbitrary

under category III.

22.

Furthermore, the Working Group accepts the source’s statement that the real motive

for detaining and trying Mr. López Alavéz is his work defending his community’s

environmental rights. This violates his freedom of expression and his right to take part in

public affairs, as enshrined in articles 19 to 21 of the Universal Declaration of Human

Rights, articles 19, 21, 22 and 25 of the International Covenant on Civil and Political Rights

and articles 13, 15, 16 and 23 of the American Convention on Human Rights, and

constitutes arbitrary detention under category II.

23.

Finally, in addition to the lack of a court-issued arrest warrant, it took five months

for Mr. López Alavéz to be formally notified of the charges against him through an

indictment, which is a violation of the right to be informed of the charges in a timely

manner. The Working Group recalls that article 9 (2) of the Covenant requires that all

persons who are arrested be promptly informed of the reasons for their arrest and of any

charges against them. Accordingly, since there were no legal grounds to hold Mr. López

Alavéz in that initial period, his detention was arbitrary under category I.

24.

Taking into account the previous cases involving Oaxaca State and the authorities’

harassment of Mr. López Alavéz since the year 2000, the Working Group asserts that there

is a policy to discriminate against him as a social leader in Oaxaca, in violation of

international norms on the right to equality before the law enshrined in article 7 of the

Universal Declaration of Human Rights, articles 2 and 26 of the Covenant and article 24 of

the American Convention on Human Rights. This discrimination makes the detention

arbitrary under category V.

25.

In keeping with its practice, the Working Group will refer the case of ill-treatment

and torture to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment and will transmit a general referral to the Special Rapporteur on

the rights to freedom of peaceful assembly and of association, the Special Rapporteur on

the situation of human rights defenders and the Special Rapporteur on the issue of human

rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable

environment.

Disposition

26.

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

The deprivation of liberty of Pablo López Alavéz, being in contravention of articles

19 to 21 of the Universal Declaration of Human Rights and of articles 14, 19, 21, 22

and 25 of the International Covenant on Civil and Political Rights, is arbitrary and

falls within categories I, II, III and V.

27.

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

to remedy the situation of Mr. López Alavéz without delay and bring it into conformity

with the relevant international norms, including those set out in the Universal Declaration

of Human Rights and the International Covenant on Civil and Political Rights.

28.

The Working Group considers that, taking into account all the circumstances of the

case, the appropriate remedy would be to release Mr. López Alavéz immediately and

accord him an enforceable right to compensation and other reparations, in accordance with

international law.

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Follow-up procedure

29.

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 Mr. López Alavéz has been released and, if so, on what date;

(b)

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

Alavéz;

(c)

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

Alavéz’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 Mexico with its international obligations in line with

the present opinion;

(e)

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

30.

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.

31.

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.

32.

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

States to cooperate with the Working Group and 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.3

[Adopted on 25 April 2017]

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