opencaselaw.ch

A/HRC/WGAD/2018/16

Opinion no. 16/2018 concerning George Khoury Layón (Mexico)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2018-04-26 · en UN

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.18-11810 (E) 130818 130818



Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-first session, 17–26 April 2018

Opinion No. 16/2018 concerning George Khoury Layón (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 the mandate of the

Commission. The Council most recently extended the mandate of the Working Group for a

three-year period in its resolution 33/30.

2.

In accordance with its methods of work (A/HRC/36/38), on 18 September 2017 the

Working Group transmitted to the Government of Mexico a communication concerning the

situation of George Khoury Layón. The Government replied to the communication on 17

November 2017. 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,

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

participate in the adoption of this opinion.

United Nations

A/HRC/WGAD/2018/16

General Assembly

Distr.: General

17 July 2018

English

Original: Spanish

A/HRC/WGAD/2018/16

2

GE.18-11810

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

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.

George Khoury Layón, a Mexican businessman born in 1974, is reportedly being

held in Federal Social Rehabilitation Centre No. 1, in the municipality of Almoloya de

Juárez, Mexico State.

5.

The source asserts that, in 2005, several individuals claiming to be police officers

approached Mr. Khoury and told him that he had to start paying them in order for his

business to run smoothly and safely. Mr. Khoury allegedly rejected the demand, which he

viewed as extortion. According to the source, this event marked the beginning of systematic

persecution against Mr. Khoury, which has involved various spells of deprivation of liberty.

6.

Mr. Khoury was first detained on 30 January 2006 for alleged engagement in

“organized crime”. On 11 April 2006, the Federal Prosecution Service initiated criminal

proceedings against him as the likely perpetrator of “crimes against health”. On 21 April

2006, a detention order was issued. The source states that it was not until 25 September

2007 that the trial judge ruled on the merits of the case, absolving Mr. Khoury of criminal

responsibility and ordering his immediate release, which took place the following day, on

26 September 2007, almost one year and eight months after his arrest.

7.

The source reports that, on 2 September 2009, the Federal Police detained Mr.

Khoury again. The source claims that Mr. Khoury was tortured by the police after his

arrest, on the same day, 2 September 2009, over a period of 14 hours. He is reported to

have been subjected to electric shocks to his private parts and head, punches, and

suffocation using water and bags. In this regard, the source states that, at the time of his

arrest, Mr. Khoury was able to press a button on his MP3 player and record the torture. The

recording was submitted as evidence in criminal case No. 05/2009, together with a

statement from Mr. Khoury, medical certificates and expert reports demonstrating that the

sounds, which the court deemed inaudible, were consistent with those generated by electric

shocks.

8.

On 10 November 2009, the Federal Prosecution Service charged Mr. Khoury with

the offences of “organized crime”, “crimes against health”, “possession of cartridges” and

“carrying of firearms intended solely for use by the State”. On 11 November 2009, a

detention order was issued against Mr. Khoury. The criminal proceedings took place while

Mr. Khoury was in pretrial detention, lasting two years and four-and-a-half months until, on

14 February 2012, the trial judge acquitted him. Despite the ruling, however, Mr. Khoury

was not released.

9.

Meanwhile, on 29 July 2011, the Federal Prosecution Service launched a

preliminary investigation against Mr. Khoury and two others for allegedly committing the

offences of “organized crime” and “kidnapping”. On 30 July 2011, an arrest warrant was

issued. On 19 August 2011, the presiding court issued a detention order. Mr. Khoury was

already in detention by virtue of the criminal proceedings described in the previous

paragraph. Mr. Khoury’s defence reportedly appealed the detention order, which was

revoked by the Second Single-judge Court of the Second Circuit. This reportedly prompted

the issuance of an order for the release of Mr. Khoury on 26 February 2012.

10.

Nevertheless, the source states that Mr. Khoury was detained once more, on 26

February 2012, by the Federal Police. According to the source, this deprivation of liberty is

ongoing.

11.

According to the information received, the custodial measure in question resulted

from criminal proceedings brought against Mr. Khoury and two others by the Federal

Prosecution Service for the alleged offence of “aggravated homicide”. On 30 March 2012,

the judge of the Twenty-fifth Federal District Criminal Court issued a warrant for his arrest.

A/HRC/WGAD/2018/16

GE.18-11810

3

On 5 April 2012, a preliminary statement was taken from Mr. Khoury, who was placed in

pretrial detention, thus triggering the ordinary procedure.

12.

From that moment on, according to the information supplied, a series of motions

were filed during the criminal proceedings, many of them stemming from complaints of

violations of due process that gave rise to amparo proceedings and appeals by the Federal

Prosecution Service:

12.1

Mr. Khoury’s defence appealed the detention order, which was upheld on 26

July 2012 by the Fifth Criminal Division of the Federal District High Court. In

response, the defence filed an action for amparo, which was granted on 31 October

2012. The Federal Prosecution Service submitted an application for review of the

decision before the Second Collegiate Criminal Court of the First Circuit, which

overturned the decision.

12.2

Meanwhile, on 7 December 2012, Mr. Khoury’s legal defence filed a motion

alleging a violation through an action for amparo, which was declared admissible

but unfounded on 16 January 2013.

12.3

In addition, through the setting aside of proceedings, the Ninth District

Criminal Amparo Court of the Federal District, in a judgment of 25 March 2013,

ruled that the judiciary should grant amparo to Mr. Khoury. In response, both the

accused and the Federal Prosecution Service filed applications for a review, which

were settled on 21 June 2013 by the Second Collegiate Criminal Court of the First

Circuit, which decided to modify the contested ruling, overturn the ruling of the

judge of the Twenty-fifth Federal District Criminal Court and grant amparo in

respect of Mr. Khoury’s rights.

12.4

Mr. Khoury also lodged a complaint concerning the repetition of a contested

act during the amparo proceedings, which was declared unfounded on 4 September

2013 by the Ninth District Criminal Amparo Court of the Federal District. In

response, his legal defence filed an appeal on the ground of nonconformity, which

was declared unfounded by the First Circuit Collegiate Criminal Court No. 2 on 10

December 2013.

12.5

Moreover, Mr. Khoury filed an application for amparo against the sentence

handed down by the Fifth Criminal Division of the Federal District High Court. The

application was granted on 5 December 2013 by the Ninth District Criminal Amparo

Court of the Federal District.

12.6

On 7 January 2012, in a single-judge ruling, and pursuant to a prior

enforceable judgment, the Fifth Criminal Division of the Federal District High Court

declared null and void a prior ruling and amended the decision handed down within

the constitutional limit of 72 hours for charging or releasing a suspect so as to issue

a detention order against Mr. Khoury.

12.7

On 28 April 2014, the defence filed a motion for release on the basis of

inadequacy of evidence, which was settled on 9 May 2014, with the request for

release declared inadmissible.

13.

On 19 September 2014, the judge of the Twenty-fifth Federal District Criminal

Court ruled against Mr. Khoury, finding him criminally responsible for the offence of

aggravated homicide and sentencing him to 20 years’ imprisonment:

13.1

Mr. Khoury’s defence and the Federal Prosecution Service appealed the

ruling. An oral hearing was held before the Fifth Criminal Division of the Federal

District High Court on 19 November 2014. On 12 February 2015, the Fifth Criminal

Division upheld the sentence of 19 September 2014.

13.2

On 22 May 2015, Mr. Khoury submitted an application for amparo and

judicial protection before the Fifth Criminal Division. On 3 March 2016, the

application was rejected. Consequently, Mr. Khoury filed a request for a review, but

to no avail.

A/HRC/WGAD/2018/16

4

GE.18-11810

14.

The source states that the main evidence used to justify Mr. Khoury’s deprivation of

liberty is a statement obtained through torture from a third party. The torture in question has

reportedly been certified in an expert report produced by the National Human Rights

Commission. In this regard, the source also argues that the statement against Mr. Khoury

was illegally altered, with incriminating elements not present in the original having been

included in the final version. The statement was allegedly given outside the criminal trial

and incorporated illegally in the case file, and was never confirmed by the witness before a

judge. The source claims that this was in violation of the procedural rules and safeguards

that ought to have governed the criminal trial against Mr. Khoury. Furthermore, the source

asserts that the aforementioned witness later denied, before the municipal judge of Villa

Aldama, Veracruz, that Mr. Khoury was involved in the criminal act for which he was

jailed.

15.

The source maintains that Mr. Khoury’s detention is arbitrary under category III, as

it violated the international norms relating to the right to a fair and impartial trial. The

source’s complaint alleges violations of due process guarantees, the presumption of

innocence and the prohibition against using testimonies extracted under duress.

Response from the Government

16.

The Working Group transmitted the communication to the Government of Mexico

on 18 September 2017 and requested that it submit a response by 17 November 2017. The

Government responded to the communication on 17 November 2017.

17.

In its response, the Government did not dispute the source’s allegation that the

evidence that gave rise to Mr. Khoury’s deprivation of liberty was extracted under duress,

nor did it contradict the claim that the evidence was incorporated illegally in the case file.

The response essentially addressed three points, which are developed below.

Procedural background

18.

Between 2007 and 2016, Mr. Khoury was the subject of three criminal trials at the

federal level and one criminal trial at the local level. The three federal trials were, first, case

No. 47/2006, for the commission of crimes against health, which resulted in an acquittal

judgment of 25 September 2007. Secondly, case No. 05/2009, for the offences of organized

crime, crimes against health and possession of ammunition and firearms intended solely for

army use, which resulted in an acquittal on 17 April 2012. And lastly, case No. 83/2011, for

the offences of kidnapping and organized crime, which resulted in his release on 24

September 2012, following an appeal against a pretrial detention decision. The local court

case was No. 80/2012, for the offence of homicide.

19.

Regarding case No. 47/2006, the Government submits that Mr. Khoury was arrested

on 30 January 2006 and brought before the Federal Prosecution Service in connection with

an investigation of organized crime offences. On 11 April 2006, the Service initiated

criminal proceedings against Mr. Khoury for drug trafficking. On 21 April 2006, a judge

ordered deprivation of liberty. On 25 September 2007, a verdict of acquittal was returned

and Mr. Khoury’s immediate release was ordered.

20.

As to case No. 05/2009, the Government explains that Mr. Khoury handed himself

over to the Federal Prosecution Service on 2 September 2009. On 10 November 2009,

criminal proceedings were initiated for organized crime and drug offences and for

possession of firearms intended solely for army use. On 26 November 2009, deprivation of

liberty was ordered. Mr. Khoury was acquitted on 14 February 2012.

21.

Concerning case No. 83/2011, the Government asserts that the trial was ordered on

charges of organized crime and kidnapping. On 30 July 2011, an arrest warrant was issued,

and, on 13 August 2011, the detention took effect. On 26 February 2012, Mr. Khoury was

acquitted and released.

22.

Lastly, in relation to local homicide case No. 80/2012, the Government states that,

on 30 March 2012, a warrant was issued for Mr. Khoury’s arrest. According to the

Government, when the warrant was issued, Mr. Khoury was already being held in the

A/HRC/WGAD/2018/16

GE.18-11810

5

Eastern Pretrial Detention Centre for Men. The Government states that, on 19 September

2014, Mr. Khoury was sentenced to 20 years’ imprisonment for homicide.

23.

According to the Government, on 10 February 2014, Mr. Khoury filed an

application for release on the basis of inadequacy of evidence. The application was deemed

admissible, but was declared unfounded on 9 May 2014.

24.

The Government states that, on 19 September 2014, Mr. Khoury appealed his

homicide conviction, which was upheld at second instance. At the same time, Mr. Khoury

submitted an unsuccessful application for amparo. In response to this decision, the defence

filed an appeal for review, which was declared inadmissible. Subsequently, an appeal was

filed on the ground of nonconformity, and that, too, was declared inadmissible.

State party’s observations on the allegations of torture

25.

The Government underlines that the Working Group’s mandate is limited to

arbitrary detention, but wishes to comment on the complaints of torture. According to the

Government, investigations into the allegations of torture began on 5 June 2010.

26.

The Government also maintains that investigations were launched on 28 March 2012

following a complaint from Mr. Khoury about irregularities committed against him by

various public officials. The Government states that those investigations are ongoing and

that criminal penalties will be imposed once the perpetrators have been identified.

27.

The Government asserts that the allegations of torture and the lack of evidence were

taken into account by the judge in case No. 83/2011, which was why Mr. Khoury was

acquitted.

28.

The Government emphasizes that, to date, no conclusive findings have been made in

connection with the investigations. As a result, the Government requests that the authorities

be allowed to continue the investigations before having to comment on them.

Mr. Khoury’s detention is not arbitrary

29.

In relation to category I, the Government states that the detention was in compliance

with applicable legislation, necessary and proportional to the end sought and subject to

immediate judicial review. According to the Government, the Federal Prosecution Service

and the Federal Police acted in accordance with article 21 of the Constitution, which

requires them to investigate all criminal complaints. Moreover, the arrest warrants were in

line with article 16 of the Constitution, which establishes that they must emanate from a

judicial authority and be well founded. In this regard, the Government considers that all the

proceedings against Mr. Khoury were based on preliminary investigations. In addition, Mr.

Khoury was kept informed at all times of the proceedings against him and always had

recourse to an adequate defence.

30.

The Government argues that the detention was necessary and proportional. In its

view, all the detentions were the result of a body of evidence amassed during investigations

conducted by the competent authorities.

31.

The Government considers that, in all the proceedings against Mr. Khoury, the

process of judicial review was adequate. In case No. 47/2006, as in case No. 05/2009, Mr.

Khoury was brought before the public prosecutor on the day of his arrest. In case No.

83/2011, it was the day after his arrest. The Government maintains that all the decisions

issued in relation to the case were submitted to the competent judicial authority at the

appropriate stage of the proceedings. Mr. Khoury even had the opportunity to file multiple

appeals, which shows that his rights were respected.

32.

In relation to category II, the Government asserts that the criminal proceedings

against Mr. Khoury were based on evidence of his involvement in criminal conduct, as

confirmed by the issuance of arrest warrants. Consequently, the detentions did not result

from the exercise of fundamental rights.

33.

In relation to category III, the Government considers that the proceedings against

Mr. Khoury were in compliance with the law. Mr. Khoury had access to a fair trial and the

opportunity to submit all relevant evidence. The Government asserts that, as soon as the

A/HRC/WGAD/2018/16

6

GE.18-11810

arrest warrants were issued, Mr. Khoury benefited from all available procedural

mechanisms and safeguards.

34.

In relation to category IV, the Government states that Mr. Khoury is not an asylum

seeker, refugee or immigrant.

35.

Lastly, in relation to category V, the Government considers that Mr. Khoury has not

been discriminated against or excluded, or faced restrictions or unequal treatment.

Discussion

36.

The Working Group acknowledges the cooperation of the parties, which took the

form of providing detailed information on the case.

37.

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 responded and

corroborated the essential facts of the case, but challenged the source’s description of them

and related allegations.

38.

The facts can be summarized as follows: Mr. Khoury was the subject of four

consecutive criminal trials, the first three at the federal level, on the basis of similar

charges, and the fourth at the local level. In each of the three federal trials, Mr. Khoury was

arrested and held in pretrial detention before being acquitted, and the Government has not

reported any compensation being awarded in relation to this pretrial detention. The fourth

and final case began while Mr. Khoury was in detention in connection with the third federal

case, for which reason his acquittal did not lead to his release, as his pretrial detention had

already been ordered. It was only in this last case that Mr. Khoury was found guilty, and

sentenced to 20 years’ imprisonment.

39.

On the basis of facts not disputed by the Government, the Working Group is deeply

concerned that one person should be the subject of so many successive criminal trials

resulting in acquittals, with the accused remaining in detention for several years. Between

2006 and 2007, Mr. Khoury spent 20 months in detention. Subsequently, since September

2009, he has been detained continuously until the present day. One case has followed

another, without him being released despite the acquittal judgments, as another case

required his continued detention until, finally, he was convicted in the local case. Mr.

Khoury has reportedly not received any compensation for being detained in relation to the

three federal cases in which he was acquitted. The Government asserts that all these cases

were well founded, even though they resulted in acquittals.

40.

As to the three federal cases, Mr. Khoury was detained for almost four years without

any of the proceedings giving rise to a conviction. The requirement of pretrial detention for

certain offences allegedly prevented a case-by-case determination of the need for such

deprivation of liberty, in violation of international human rights standards. The Working

Group established, in its opinion No. 1/2018,1 that this legal provision is not in compliance

with international human rights law, since, for the offences in question, pretrial detention

becomes the absolute rule, without there even being any leeway for a judge to rule on the

legitimacy of such detention.

41.

The Working Group therefore concludes that Mr. Khoury’s detention in these three

cases was arbitrary under category I, since it was imposed in violation of article 9 of the

Universal Declaration of Human Rights and article 9 (1) and (3) of the Covenant.

42.

Furthermore, in case No. 05/2009, Mr. Khoury was held incommunicado for 14

hours and, according to the source, tortured. The Government states that, on 5 June 2010,

1 See opinion No. 1/2018, para. 59: “[T]he Working Group considers that the constitutional provision

on which Mr. Zaragoza Delgado’s detention was based, namely the provision requiring automatic

pretrial detention for certain offences, is contrary to article 9 (3) of the Covenant. This reaffirms the

conclusion that he was detained unlawfully.”

A/HRC/WGAD/2018/16

GE.18-11810

7

the Special Unit for Investigation of Offences Committed by Public Servants against the

Administration of Justice initiated investigations to identify those responsible for the arrest

of 2 September 2009 and clarify the events that occurred afterwards. The Working Group’s

jurisprudence on this matter has been constant: incommunicado detention violates the right

of an individual to challenge the lawfulness of his or her detention before a judge2 and to

prepare for a trial with legal assistance and family support. Consequently, this situation is a

violation of Mr. Khoury’s rights. The Working Group is shocked that, after all these years,

the Government has still not completed its investigations into torture. This situation

constitutes a twofold violation because of the denial of justice that it entails.

43.

In case No. 80/2012, the torture committed against the other co-accused was

certified by the National Human Rights Commission. In addition, it transpires from the case

file that the other co-accused’s testimony was altered and never confirmed by him before a

judge. This testimony has been the main piece of evidence against Mr. Khoury and, as such,

supports his conviction. This argument has not been contradicted by the Government. In the

circumstances of the present case, the Working Group is of the view that the allegation is

credible and points to an essential departure from equality in the proceedings.

44.

The prohibition of torture is a jus cogens norm and precludes the admission of

evidence obtained through torture in judicial proceedings. In this respect, the Working

Group recalls guideline 12 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. This guideline reaffirms the obligation established in article 15

of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment, which forms part of the international obligations of Mexico, along with the

provisions of articles 7 and 14 of the Covenant and the principle set forth in the Human

Rights Committee’s general comment No. 32 (2007), on the right to equality before courts

and tribunals and to a fair trial.

45.

The only constructive response from the Government in this regard has been to state

that the allegation of torture was taken into account in reducing the punishment associated

with Mr. Khoury’s conviction. Nevertheless, this response is not sufficient, since

international standards require that evidence obtained through torture simply be rejected.

46.

All these violations have a particularly serious impact on the fairness of the trial, as

prescribed in article 10 of the Universal Declaration of Human Rights and article 14 of the

Covenant, and lead to the conclusion that the detention is arbitrary under category III.

47.

In accordance with its practice stemming from paragraph 33 (a) of its methods of

work, the Working Group will refer the complaints of torture to the Special Rapporteur on

torture and other cruel, inhuman or degrading treatment or punishment.

48.

In addition, the Working Group recalls that, according to the source, all these

proceedings are the result of Mr. Khoury’s refusal to submit to attempted extortion by

individuals who appeared to be members of the police force. The Working Group lacks

sufficient evidence to analyse this allegation from the source. Nevertheless, the presence of

organized crime and corruption in Mexico, which is widely acknowledged,3 enhances the

plausibility of the accusation. The string of legal proceedings, which failed one after the

other, reinforces the impression that reprisals were taken for Mr. Khoury’s refusal to submit

to extortion. If this were established, it would indicate a practice of discrimination that

would lead to the conclusion that category V is applicable. The Government has not stated

whether it has launched an investigation into this important accusation, which undoubtedly

affects the entire proceedings and is regrettable. At its eighty-first session, the Working

Group discussed a similar situation and found that the instrumentalization of part of the

justice system is deeply worrying. It is essential that the Government take the necessary

2 See, for example, opinions Nos. 56/2016, 53/2016, 6/2017, 10/2017 and 66/2017.

3 United Nations Office on Drugs and Crime (UNODC), Transnational Organized Crime in Central

America and the Caribbean: A Threat Assessment, 2012, and World Drug Report 2017, pp. 15, 16

and 30.

A/HRC/WGAD/2018/16

8

GE.18-11810

measures to rectify this situation, which is damaging to the reputation of the justice system

and the faith that citizens are entitled to have in it.

49.

Given the number of cases concerning Mexico that it has been required to examine

in recent years (opinions Nos. 23/2014, 18/2015, 19/2015, 55/2015, 56/2015, 17/2016,

58/2016, 23/2017, 24/2017, 66/2017 and 1/2018), the Working Group renews its call for

the Government to invite it to visit the country. This would enable the Working Group and

the Government to engage in a constructive dialogue with the aim of helping Mexico to

improve its law and practice so as to prevent arbitrary deprivation of liberty. In this respect,

attention is drawn in particular to the standing invitation extended by Mexico to all special

procedures mechanisms in 2001 and the communications sent by the Working Group to the

Permanent Mission of Mexico in Geneva on 15 April 2015, 10 August 2016 and 9 February

2018.

Disposition

50.

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

The deprivation of liberty of George Khoury Layón, being in contravention

of 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, is arbitrary and falls

within categories I and III.

51.

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

measures to remedy Mr. George Khoury Layón’s situation without delay and bring it into

conformity with applicable international norms, including those set out in the Covenant and

the Universal Declaration of Human Rights.

52.

In the light of all the circumstances of the present case, the Working Group

considers that an appropriate remedy would be to release Mr. Khoury immediately and

accord him an enforceable right to compensation and other reparations, including

guarantees of non-repetition, in accordance with international law, while providing him

with adequate medical care. The Working Group is also of the view that the Government

should investigate the situation and determine who is responsible more promptly than it has

until now with respect to the complaints of torture.

53.

The Working Group urges the Government to ensure that an independent and

thorough investigation is conducted into the circumstances surrounding the arbitrary

deprivation of Mr. Khoury’s liberty and take appropriate measures against those

responsible for the violation of his human rights.

54.

In accordance with paragraph 33 (a) of its methods of work, the Working Group will

refer the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment.

Follow-up procedure

55.

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. Khoury has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been granted to Mr. Khoury;

(c)

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

Khoury’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.

56.

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

A/HRC/WGAD/2018/16

GE.18-11810

9

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

Working Group.

57.

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.

58.

The Government should disseminate the present opinion through all available means

and among all stakeholders.

59.

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.4

[Adopted on 20 April 2018]

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