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.19-13864 (E) 170120 170120
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fourth session, 24 April–3 May 2019
Opinion No. 14/2019 concerning Rafael Méndez Valenzuela (Mexico)*
1.
The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the mandate of the Working Group. 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 7 November 2018, the
Working Group transmitted to the Government of Mexico a communication concerning
Rafael Méndez Valenzuela. The Government replied to the communication on 7 January
2019. 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,
disability, or any other status, that aims towards or can result in ignoring the equality of
human beings (category V).
* In accordance with paragraph 5 of the Working Group’s methods of work, José Antonio Guevara
Bermúdez did not participate in the adoption of the present opinion.
United Nations
A/HRC/WGAD/2019/14
General Assembly
Distr.: General
14 August 2019
English
Original: Spanish
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Submissions
Communication from the source
4.
Mr. Méndez Valenzuela is a 30-year-old Mexican construction equipment operator.
He is currently detained in Federal Social Rehabilitation Centre No. 8 in Guasave, Sinaloa.
Arrest, interrogation and indictment
5.
According to the information received, Mr. Méndez Valenzuela was deprived of his
liberty by police officers of the Valle de Bravo municipality on 22 January 2008 at 2.20
p.m., when the utility vehicle in which he and his companions were travelling was stopped
at a checkpoint on the road to Toluca. During the inspection, the police officers claimed
that the licence plates on the vehicle belonged to a vehicle that had been reported stolen and
handed the passengers over to state police officers, who said that they would go to their
offices to investigate the situation and forced the arrested persons into a vehicle. Later, the
authorities claimed that they had been arrested in flagrante delicto, as they had allegedly
been transporting drugs and weapons intended solely for military use.
6.
According to the source, during the journey, the vehicle was driven off the road and
towards some woods, where the arrested persons waited for the police chiefs to arrive. They
were joined by more state police officers, who asked them what they did, who their bosses
were and where they could be found. When they were unable to answer some of the
questions, the police officers started beating them and bound their hands. They were told
that, when the soldiers and the Federal Investigation Agency officers arrived, they would
have to confess to being part of the organized crime group known as La Familia
Michoacana or be prepared to suffer.
7.
The source reports that, after approximately two hours, the arrested persons were
taken into the woods by soldiers and Federal Investigation Agency officers. They were
transported in utility vehicles to a military base, where they were taken to a basement.
There, the officers told Mr. Méndez Valenzuela that they knew where his family members
lived and were going to kill them but that first they were going to torture him. He was
beaten, had water poured over his nose and was suffocated with a plastic bag. During this
time, he was repeatedly asked where his bosses were, while being threatened with death.
8.
Mr. Méndez Valenzuela, according to the source, was then transferred by helicopter
to the Office of the Assistant Attorney General for the Investigation of Organized Crime,
where he was told that he must sign a confession stating that he was a member of a criminal
group. As he was getting out of the helicopter, he was pushed backwards while blindfolded
and handcuffed, causing him to fall over and dislocate his left shoulder. Ever since, he has
had shoulder problems. He was detained in a room where he was tortured again for two or
three hours. The torturers wrapped his body in a blanket so that the blows would not leave
marks and suffocated him with a plastic bag. They told him that if he did not sign the
confession, they would continue torturing him all night; they also told him that his
companions had already confessed, so he ended up signing the papers that he was given,
without reading them. Once he had signed, he was introduced to his defence lawyer, almost
seven hours after his arrest. The lawyer told him that, if he had already signed a confession,
nothing could be done to defend him.
9.
According to the source, a photograph of Mr. Méndez Valenzuela’s face was
disseminated via the media by the Office of the Attorney General of the Republic and was
shown on television as though he were a member of La Familia Michoacana. He was given
the alias “El Chester” as part of a strategy of announcing daily arrests of suspected
members of organized crime groups.
10.
In March 2008, a complaint was filed with the Mexico State Human Rights
Commission. On 18 March 2008, the Commission replied that it could not handle the
complaint because the case fell under the jurisdiction of the Autonomous Agency for
Prevention and Social Rehabilitation of the Ministry of Public Security. The authorities
referred the complaint to the National Human Rights Commission, which stated on 30
March 2008 that Mr. Méndez Valenzuela was being brought to trial and that further details
could be obtained by contacting the regional office of the Federal Public Defender Service
in Toluca.
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Conviction, serving of sentence and amparo application
11.
The source reports that Mr. Méndez Valenzuela was held in pretrial detention in
Federal Social Rehabilitation Centre No. 1 in Almoloya de Juárez, Mexico State, for four
years, until he was sentenced on 30 April 2012 to 17 years’ imprisonment for organized
crime and carrying a firearm. The allegation of torture, the relevant medical and
psychological evaluations and the contradictory statements of the police officers involved
in the arrest were not taken into account in the judgment. The defence lodged an appeal,
which was resolved after 20 months, on 11 December 2013, and led to the prison sentence
being reduced by one year.
12.
On 15 August 2014, Mr. Méndez Valenzuela was transferred to Federal Social
Rehabilitation Centre No. 8 in Guasave, Sinaloa.
13.
On 9 September 2014, the Fourth District Court for Federal Criminal Proceedings in
Mexico State granted Mr. Méndez Valenzuela’s request to be allowed to serve his
sentences concurrently. He had served 5 years, 10 months and 19 days, from 22 January
2008 (the date of his arrest) to 11 December 2013 (the date on which he was sentenced).
His total concurrent sentence was therefore reduced to 10 years, 2 months and 19 days. The
new sentence completion date was set as 2 March 2018.
14.
The case was passed on to a federal public defender, who filed a direct amparo
application, alleging torture and other irregularities. The application was received on 10
June 2015 by the Fourth Collegiate Circuit Court of Mexico State, which decided on 31
March 2016, after almost 10 months, not to grant amparo to Mr. Méndez Valenzuela. An
application for a review of the decision was filed and the case was referred to the Supreme
Court. One month later, on 29 April 2016, the First Chamber of the Supreme Court
declared the application admissible as direct amparo appeal No. 2524/2016.
15.
The source notes that, on 5 October 2016, the Supreme Court found that the
Collegiate Circuit Court had “violated due process” and had not “followed the set criteria”
when ruling on Mr. Méndez Valenzuela’s allegations that he was a victim of torture, since
it had not taken into account the medical evaluations regarding his injuries and post-
traumatic stress disorder. The Supreme Court also found that: (a) a false evaluation of his
physical integrity had been issued; (b) the statement to the public prosecutor was unlawful
because it had been made as a result of torture; and (c) in his extended statement to the
public prosecutor, Mr. Méndez Valenzuela declared that he had been tortured in order to
extract a confession.
16.
The Supreme Court noted that, despite being aware of the allegation of torture, the
judicial authority did not investigate it and thus failed to comply with fundamental
procedural requirements, leaving the accused without a defence. For that reason, it decided
to review the proceedings conducted in the initial criminal case, up to the phase
immediately preceding the order to conclude the investigation, with a view to investigating
the alleged torture, and instructed the competent judicial authority to immediately order that
the relevant examinations be carried out, in order to properly clarify what had happened,
taking into account the nature of the alleged ill-treatment and applying the provisions of the
Manual on the Effective Investigation and Documentation of Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol). Not to do so, the
Court stated, would constitute a failure to comply with fundamental procedural
requirements that would be detrimental to the defendant.
17.
According to the source, the Fourth Collegiate Circuit Court received the Supreme
Court’s decision four months later, on 7 February 2017, and granted the remedy of amparo
and federal court protection two months later, on 6 April 2017. At that point, the public
defender told members of Mr. Méndez Valenzuela’s family that experts would need to be
appointed, which could take up to a year, so they hired independent experts, who carried
out the necessary medical and psychological examinations on 8 December 2017.
18.
Mr. Méndez Valenzuela completed his prison sentence on 2 March 2018 but was not
released. When he raised the issue with the prison director, the prison director said that he
was waiting for judicial notification that he could be released; Mr. Méndez Valenzuela
therefore sent another letter to the Fourth Court of Toluca requesting that a decision be
handed down as soon as possible, since the expert evaluations required by the Supreme
Court had already been carried out. On 21 March 2018, the judge replied that Mr. Méndez
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Valenzuela could not be released because the Council of the Federal Judiciary had
appointed experts to evaluate him. However, in her letter, she gave only the names of the
experts, without indicating the date or time of the examinations; she also declared void the
independent expert evaluations that had already been carried out.
19.
On 27 March 2018, the judge sent a letter to the courts in Sinaloa, declaring that the
case was outside her jurisdiction and requesting that it be handled in Sinaloa. The source
notes that months have passed, yet it remains unclear how the courts in Sinaloa responded.
20.
After the public defender had been pressed to request that the proceedings be
expedited, an expert appointed by the Council of the Federal Judiciary carried out a medical
examination of Mr. Méndez Valenzuela in accordance with the Istanbul Protocol, on 22
May 2018. A psychological examination was carried out later, in October 2018.
21.
Mr. Méndez Valenzuela is still deprived of his liberty and is being held in
mandatory pretrial detention, as he is still awaiting trial; he has no alternative but to wait in
pretrial detention for the final judgment to be handed down, even though, if he is found
guilty, he will have already served the full sentence. According to the source, all the
procedures and excuses of the authorities responsible for the delayed release are clearly
intended to harm Mr. Méndez Valenzuela.
Category I
22.
The source argues that there is no legal justification for keeping Mr. Méndez
Valenzuela in detention, since he has already served his sentence in full. He has been kept
in pretrial detention because he has lodged appeals claiming that his detention is unlawful
and denouncing the use of torture to obtain evidence. As a result of these appeals, the case
has been reopened and he has been kept in pretrial detention, even though, if he is
convicted, he will have already served the sentence that is imposed on him.
23.
Moreover, although the Constitution provides for detention in cases of flagrante
delicto, the source argues that this provision is not actually applicable in the present case,
since the authorities did not catch Mr. Méndez Valenzuela in the act of committing an
offence. Furthermore, in violation of his procedural rights, he was detained unlawfully for
approximately seven hours, he was tortured and he was not assigned a public defender in a
timely manner.
Category III
24.
The source notes that mandatory pretrial detention for certain offences is applied as
a rule, not an exception, in violation of article 9 (3) of the Covenant. Mr. Méndez
Valenzuela was charged with the offences of organized crime and carrying weapons
intended solely for use by the army, navy and air force and was therefore forced to spend
more than 10 years in pretrial detention waiting for a judgment to be handed down. By law,
he was placed in pretrial detention automatically; no determination of whether the detention
was appropriate and reasonable was ever made.
Category V
25.
Lastly, the source maintains that under the Constitution, there is a distinction,
contrary to articles 3 and 26 of the Covenant, between those who have access to alternatives
to mandatory pretrial detention and those who do not. The distinction is based on a list of
offences established by law; Mr. Méndez Valenzuela therefore has not enjoyed equal
protection under the law.
Response from the Government
26.
On 7 November 2018, the Working Group transmitted the allegations from the
source to the Government. The Working Group requested the Government to provide
detailed information about the case involving Mr. Méndez Valenzuela by 7 January 2019. It
requested the Government to clarify the legal and factual grounds for his detention and
explain how his detention was compatible with the international human rights obligations
of Mexico. The Working Group also called upon the Government to ensure Mr. Méndez
Valenzuela’s physical and mental integrity.
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Procedural background
27.
The Government replied to the communication on 7 January 2019,1 setting out the
procedural background as follows.
28.
On 22 January 2008, members of the Mexico State security forces placed Mr.
Méndez Valenzuela and others at the disposal of the Office of the Attorney General of the
Republic after confiscating firearms from them; this led to the opening of a preliminary
investigation.
29.
On 23 January 2008, an expert from the Office of the Attorney General of the
Republic issued a medical evaluation stating that Mr. Méndez Valenzuela’s injuries were
not life-threatening and would heal within 15 days.
30.
On 4 March 2008, Mr. Méndez Valenzuela’s statement was recorded and criminal
proceedings were brought against him and others for organized crime as an offence against
public health and for carrying a firearm intended solely for use by the army, navy and air
force.
31.
The Government reports that, on 6 March 2008, the Fourth District Court for
Federal Criminal Proceedings in Mexico State issued a warrant for the arrest of Mr.
Méndez Valenzuela as requested by the Public Prosecution Service based on his suspected
involvement in the offences of organized crime and carrying a firearm intended solely for
use by the army, navy and air force.2
32.
At 4 p.m. on 13 March 2008, a detention order was issued in respect of Mr. Méndez
Valenzuela.
33.
On 30 May 2013, the judge in the case convicted Mr. Méndez Valenzuela of the
offences mentioned above and sentenced him to 17 years’ imprisonment and a fine
equivalent to 350 days’ wages.
34.
The convicted persons lodged an appeal (No. 251/2013), which was heard by the
court that was first on the rota to hear it, namely the First Single-Judge Court of the Second
Circuit. This court reduced the sentence to 16 years’ imprisonment and a fine equivalent to
300 days’ wages.
35.
On 21 April 2016, Mr. Méndez Valenzuela filed an application for amparo and
federal court protection with the Fourth Collegiate Criminal Court of the Second Circuit
(application No. 92/2015). On 31 March 2016, the Collegiate Court decided to reject the
application and to notify the Public Prosecution Service of the allegations of torture made
by Mr. Méndez Valenzuela to allow for an investigation.
36.
According to the Government, Mr. Méndez Valenzuela applied for a review of the
decision and his application was considered by the First Chamber of the Supreme Court. It
was deemed admissible and, on 5 October 2016, the Supreme Court decided to overturn the
contested decision and call upon the Collegiate Court to reconsider the torture allegations in
the light of constitutional doctrine.
1 The Working Group has taken into account a document that was annexed to the Government’s
response. The annex is a memorandum, dated 12 December 2018, from the Second District Court for
Federal Criminal Proceedings in Mexico State, which contains information on the proceedings
brought against Mr. Méndez Valenzuela and confirms the Government’s summary of the case. It
appears that the Council of the Federal Judiciary requested the information for the purpose of
responding to the Working Group’s communication. The information includes an explanation of the
warrants for the arrest and detention of Mr. Méndez Valenzuela, as well as other aspects of the case
such as the initial reduction of the sentence by one year, the amparo application, the conclusions of
the Supreme Court, Mr. Méndez Valenzuela’s detention situation and an update on the investigation
into his allegations of torture.
2 According to the Government, the offence of organized crime and the applicable penalty are
established in articles 2 (I) and 4 (I) (b), respectively, of the Federal Act on the Prevention of
Organized Crime, read in conjunction with article 13 (III) of the Federal Criminal Code. The offence
of carrying a firearm intended solely for use by the army, navy and air force and the applicable
penalty are established in article 83 (II) and article 11 (b) and (c) of the Federal Firearms and
Explosives Act, read in conjunction with article 13 (III) of the Federal Criminal Code.
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37.
In compliance with this ruling, the Fourth Collegiate Court granted the remedy of
amparo in its decision of 6 April 2017 concerning direct amparo application No. 92/2015
and called upon the First Single-Judge Court of the Second Circuit based in Mexico City to:
(a)
Declare null and void the contested judgment handed down on 11 December
2013 in connection with appeal No. 251/2013;
(b)
Hand down another decision, overturning the first instance judgment and
ordering the judge in the case to review the proceedings, starting from the phase
immediately preceding the order to conclude the investigation;
(c)
Order the Public Prosecution Service to open an investigation in order to
determine whether the allegations of torture were true;
(d)
Order that the relevant psychological and medical examinations be carried
out, in accordance with the Istanbul Protocol, and order the gathering of whatever evidence
might be needed in order to establish the facts, so that it could be used during the trial to
determine whether or not Mr. Méndez Valenzuela’s confession should be considered to
have probative value, when the final judgment was handed down;
(e)
Ensure that any penalties imposed in the final judgment that was to be
handed down once the above steps had been taken were no more severe than the penalties
initially imposed, since, in line with the principle of the prohibition of reformatio in pejus,
neither amparo proceedings nor the granting of amparo can ever have an effect contrary to
that intended by the complainant.
38.
The Government reports that, in accordance with the decision granting amparo, the
First Single-Judge Court of the Second Circuit handed down a decision on 31 May 2017 in
which it ordered that the sentence of 30 May 2013 be revoked, solely in respect of Mr.
Méndez Valenzuela, and that the proceedings be reviewed up to the phase immediately
preceding the order to conclude the investigation.
39.
The Government notes that these measures were taken so that the examination of Mr.
Méndez Valenzuela’s allegations of torture and the significance of those allegations could
be evaluated. Mr. Méndez Valenzuela is currently awaiting trial because there has been no
final judgment in which he has been sentenced to a specific penalty, since the judgments
that were handed down were challenged and then overturned. He is waiting for the relevant
expert evaluation based on the Istanbul Protocol to be submitted, to allow for a new
decision to be handed down.
Alleged acts of torture
40.
According to the Government, when the arrest warrant was executed and Mr.
Méndez Valenzuela was taken to Federal Social Rehabilitation Centre No. 1, his health was
not found to have changed, as confirmed by the initial physical and psychological
evaluation that was carried out on 10 March 2008. The Government reiterates that the
criminal courts are waiting for the submission of an expert evaluation based on the Istanbul
Protocol in order to be able to determine whether Mr. Méndez Valenzuela was a victim of
torture.
41.
Independently of the aforementioned process, the Office of the Special Prosecutor
for the Investigation of Torture of the Office of the Assistant Attorney General for the
Investigation of Federal Crimes is conducting a preliminary investigation into the alleged
torture of Mr. Méndez Valenzuela; this investigation is still under way.
42.
In addition, an investigation was opened when Mr. Méndez Valenzuela filed a
complaint alleging acts of torture. When the Mexico State Office of the Special Prosecutor
for the Investigation of Torture was set up, it was given the responsibility for conducting
this investigation.
43.
The Government adds that, as part of the investigation, information was requested
from the Directorate General of Prevention and Social Reintegration of Mexico State. In
addition, the investigative police were instructed by official letter to conduct an interview
with Mr. Méndez Valenzuela, as the complainant; the resulting report, which was submitted
on 13 December 2013, is also being examined.
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Detention of Mr. Méndez Valenzuela
44.
According to the Government, the detention of Mr. Méndez Valenzuela is lawful
and his rights have been respected at all times. His detention has been reviewed by
independent and impartial courts of first and second instance and even by the Supreme
Court, which is the highest court in the country.
45.
Mr. Méndez Valenzuela has had access to a proper defence, as demonstrated by the
effectiveness of his appeals, which were duly considered, and it is because they have been
effective that his case remains pending.
46.
Given the seriousness of the offences with which he has been charged, Mr. Méndez
Valenzuela must be detained throughout the trial, under article 19 of the Constitution.3
47.
Lastly, the Government notes that the detention of Mr. Méndez Valenzuela cannot
be considered arbitrary on the grounds of discrimination, since it cannot be concluded that
he was subject to any distinction, exclusion, restriction or preference. There was therefore
no nullification or impairment of the recognition, enjoyment or exercise of rights on an
equal basis with others.
Additional comments from the source
48.
In additional comments, the source refers to the Government’s claim that the
physical and psychological evaluation carried out on 10 March 2008 upon Mr. Méndez
Valenzuela’s arrival at the federal prison showed that his health had not changed. This
evaluation, according to the source, contradicts an earlier medical report, also mentioned by
the Government, which was drawn up on 23 January 2008, immediately after Mr. Méndez
Valenzuela had been deprived of his liberty, and in which it had been noted that he did have
injuries. Moreover, other expert evaluations have corroborated the allegations of torture.
49.
The source reiterates that the possibility that torture may have occurred has a direct
bearing on the right of all persons not to be compelled to testify against themselves or to
confess guilt, under international standards on the right to a fair trial. Mr. Méndez
Valenzuela was allegedly forced, by means of torture, to sign a confession of guilt. The
alleged acts of torture are directly linked to the arbitrary detention.
50.
According to the source, the investigations into the torture allegations have not yet
led to the prosecution of any officers; this lack of action is a failing on the part of the State,
as there are clear indications that acts of torture were committed. The Supreme Court
ordered a review of the criminal proceedings on the grounds that torture may have occurred
and that the evidence may therefore be unlawful. The source reiterates that, since the
review began, examinations have already been carried out and have shown that the
evidence substantiates the complaint. However, the judge has not yet ruled on the case and
Mr. Méndez Valenzuela remains on trial and deprived of his liberty.
51.
The source refers to the decision to reduce the sentence from 16 years’
imprisonment to slightly more than 10 years’ imprisonment. The sentence completion date
was set as 2 March 2018. Mr. Méndez Valenzuela is still being detained in a federal prison.
Deprivation of liberty after the completion of a sentence is clearly arbitrary, as it has no
legal basis. It is not possible for a longer prison sentence to be imposed in any new
judgment that is handed down as a result of the review of the criminal proceedings, given
the prohibition of reformatio in pejus, which has already been mentioned by the
Government.
52.
Furthermore, Mr. Méndez Valenzuela is being held in pretrial detention, even
though he need not be detained for the criminal proceedings to be conducted. It would have
been appropriate for him to have been released once he had served his sentence and, in any
event, not to have been detained while the proceedings were conducted. Mr. Méndez
Valenzuela is being detained on the basis of a decision in which he was found to have been
a victim of violations of the rules of due process and his rights were asserted. Had it not
3 The relevant part of article 19 reads as follows: “Judges shall order mandatory pretrial detention in
cases of organized crime, intentional homicide, rape, kidnapping, trafficking in persons, violent
crimes involving the use of weapons or explosives, and serious offences against national security, the
free development of the person and public health, as determined by law.”
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been for the order to review the proceedings, Mr. Méndez Valenzuela would have been
released.
53.
The source recalls that, under article 19 of the Constitution, Mr. Méndez Valenzuela
must remain in mandatory pretrial detention until a final judgment is handed down.
Mandatory pretrial detention is a violation of numerous human rights standards. Since none
of the judgments handed down in respect of Mr. Méndez Valenzuela have been final, he is
still in mandatory pretrial detention. As a result, Mr. Méndez Valenzuela has spent over 10
years in prison without having been found criminally responsible. This system, in which
persons subject to mandatory pretrial detention are treated differently from others, is
discriminatory.
54.
Lastly, the source notes that it is questionable whether Mr. Méndez Valenzuela was
arrested in flagrante delicto, given the irregularities relating to his detention, such as the
torture inflicted in the hours after he was deprived of his liberty. Those irregularities reveal
a degree of arbitrariness in the actions of the authorities and cast doubt on the claim that he
was arrested in flagrante delicto. It can therefore be concluded that there was no legal basis
for his detention, since it was based on a case of flagrante delicto that was not actually any
such thing.
Discussion
55.
The Working Group thanks the source and the Government for their submissions.
56.
In determining whether the deprivation of liberty is arbitrary, the Working Group
has regard to the principles of dealing with evidentiary issues that are established in its
jurisprudence. If the source has made a prima facie case for violations of international
standards on personal liberty and arbitrary detention, the burden of disproving the
allegations should be understood to rest upon the State. Mere assertions that lawful
procedures have been followed are not sufficient to rebut the source’s allegations
(A/HRC/19/57, para. 68).
57.
According to the source, on 22 January 2008, Mr. Méndez Valenzuela was not
caught committing an offence and no legal basis for his arrest was invoked. However, the
authorities later claimed that the arrest was made in flagrante delicto, because drugs and
weapons were allegedly being transported in the vehicle in which he was travelling. In its
response, the Government did not counter this allegation; it merely noted that the Fourth
District Court issued a warrant on 6 March 2008 for the arrest that had taken place on 22
January 2008.
58.
Given that the Government has not provided information on the question of whether
the arrest was made in flagrante delicto, and since it has confirmed that the arrest warrant
was issued over a month after Mr. Méndez Valenzuela was placed in detention, the
Working Group considers that there was no legal basis for his detention. Article 9 (1) of the
Covenant stipulates that no one may be deprived of liberty except on such grounds and in
accordance with such procedure as are established by law. Therefore, in order for
deprivation of liberty to be considered lawful and not arbitrary, previously established
procedures and guarantees must be observed. In this case, Mr. Méndez Valenzuela was
arrested without a warrant or any other legal basis, in violation of article 9 (1) of the
Covenant. Deprivation of liberty cannot be considered to have a legal basis simply because
it is permitted by law; the authorities must invoke the law in question and apply it to the
case by means of an arrest warrant, at the time when the arrest is made.4
59.
An argument that there is no legal basis for keeping Mr. Méndez Valenzuela in
detention has also been made, since he completed his prison term on 2 March 2018.
Nonetheless, he is currently in pretrial detention and has spent over 11 years in custody. Mr.
Méndez Valenzuela is still in detention because he lodged appeals claiming that his
detention was unlawful and that the evidence against him had been obtained through torture.
As a result, the proceedings against Mr. Méndez Valenzuela are being reviewed and the
initial judgment has been overturned to allow for his case to be reconsidered. Had the
Supreme Court not requested a review of the proceedings, Mr. Méndez Valenzuela would
4 Opinions No. 53/2018 and No. 36/2018.
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have been released already.5 The source emphasizes that whatever sentence is imposed on
Mr. Méndez Valenzuela following the reconsideration of his case will have already been
served, given that he has been in prison since 2008.
60.
In its response, the Government states that Mr. Méndez Valenzuela is currently in
detention because a final judgment sentencing him to a specific penalty has not yet been
handed down, since the earlier judgment was overturned as a result of his successful
appeals. He is therefore waiting for his allegations of torture to be examined by an expert,
in accordance with the Istanbul Protocol, and for a judgment to be handed down, based on
the results of that examination. In the document attached to the Government’s response, the
Second District Court for Federal Criminal Proceedings in Mexico State explains the steps
that must be taken in order to obtain expert reports that are in line with the Istanbul Protocol
and notes that the entire process must be completed before Mr. Méndez Valenzuela can be
examined.
61.
The Working Group recognizes that the courts, particularly the Supreme Court, have
considered Mr. Méndez Valenzuela’s case carefully and have given him a major
opportunity by agreeing to reconsider his allegations of torture. This is a significant step
towards ensuring that officers responsible for detention in the criminal justice system are
held accountable. The Working Group also agrees that it is necessary to gather all the
relevant information, including by following the procedures and obtaining the reports
required under the Istanbul Protocol, before a full and accurate assessment of the torture
allegations can be made. However, the Government has not provided a satisfactory
explanation as to why Mr. Méndez Valenzuela must remain in detention while this
information is gathered, as he has completed his initial sentence, and any new sentence
should take into account the substantial amount of time already served. 6 The Working
Group considers this case to be a clear example of detention without a legal basis, as
expressly mentioned in category I of its categories of arbitrary detention, which covers
cases where 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”.7
62.
The Working Group considers that the detention of Mr. Méndez Valenzuela has no
legal basis and is therefore arbitrary under category I.
63.
The source also maintains that the detention of Mr. Méndez Valenzuela is arbitrary
under category III because his right to a fair trial has been violated.
64.
The source claims that, after Mr. Méndez Valenzuela was arrested, a photograph of
him was disseminated via the media by the Office of the Attorney General of the Republic
and was shown on television as though he were a member of the criminal group La Familia
Michoacana. According to the source, the authorities invented the alias El Chester for him
as part of their strategy of publicly announcing daily arrests of suspected members of
organized crime groups. The Government did not specifically address this allegation in its
response; it merely stated generally that the detention of Mr. Méndez Valenzuela was
lawful and that his rights had been respected at all times. Consequently, based on the
available information, which has not been contested by the Government, the Working
Group believes that the photograph of Mr. Méndez Valenzuela was disseminated as alleged.
65.
The Working Group considers that the way in which the photograph of Mr. Méndez
Valenzuela was presented to the public jeopardized his right to be presumed innocent. The
accuracy of the allegations made against Mr. Méndez Valenzuela, including the claim that
he was an active member of an organized crime group, should have been determined by a
5 The Working Group notes that, under article 5 (1) of the Covenant, no State may engage in any
activity aimed at the destruction of the rights and freedoms recognized in the Covenant, including the
right not to be subjected to arbitrary detention or torture and the right to an effective remedy. The
Working Group considers that a person should not be denied the right to liberty for having exercised
the right to challenge his or her detention and to seek redress for alleged torture.
6 The Government notes in its response that the Fourth Collegiate Circuit Court ruled on 6 April 2017
that the case must be reconsidered in the light of the prohibition of reformatio in pejus (an appellant
cannot be put in a worse position than if he or she had not appealed). It is therefore likely that any
new sentence will not be heavier than the one already imposed, which Mr. Méndez Valenzuela will
have already served in full.
7 A/HRC/36/38, para. 8 (a).
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court; the allegations should not have been relayed by the media as proven facts. The
Working Group stands by this principle even though Mr. Méndez Valenzuela signed a
confession admitting that he belonged to the criminal group in question. It is for a court to
assess the probative value of a confession and to determine whether it was made voluntarily
and whether it proves that the accused was involved in an offence, especially as Mr.
Méndez Valenzuela claims that the confession was obtained through torture.
66.
The Working Group agrees with the Human Rights Committee that public
authorities should refrain from prejudging the outcome of a trial, especially by abstaining
from making public statements affirming the guilt of the accused. The Committee also
stresses that the media should avoid news coverage undermining the presumption of
innocence. 8 The Working Group therefore considers that Mr. Méndez Valenzuela was
deprived of his right to be presumed innocent, in violation of article 11 (1) of the Universal
Declaration of Human Rights and article 14 (2) of the Covenant.
67.
The source claims that Mr. Méndez Valenzuela signed a confession after being
tortured and told that members of his family would be killed. The torture reportedly
included blindfolding him, hitting him in the ribs and kidneys, pouring water over his nose
and suffocating him with a plastic bag, while threatening to kill him. At the Office of the
Assistant Attorney General for the Investigation of Organized Crime, he was allegedly
subjected again, for two or three hours, to similar forms of torture. He was also told that his
companions, who had been arrested at the same time as he had been, had confessed. As a
result, Mr. Méndez Valenzuela signed the papers containing a confession without reading
them. The Government did not refer to the confession in its response; however, it
mentioned various ongoing investigations into the alleged torture.
68.
As emphasized by the Human Rights Committee, the burden is on the State to prove,
beyond reasonable doubt, that statements made by the accused have been given of their
own free will and without any direct or indirect physical or psychological pressure from the
investigating authorities.9 In the present case, the Supreme Court has acknowledged that the
burden of proof rests upon the authorities. The Working Group considers that there are
serious doubts as to whether Mr. Méndez Valenzuela’s confession was made voluntarily.
69.
The Working Group considers that Mr. Méndez Valenzuela has been detained for
over 11 years without the Government having proven that his confession was made
voluntarily and that the proceedings against him have therefore been fundamentally unfair.
Mr. Méndez Valenzuela’s right not to be compelled to testify against himself or to confess
guilt, under articles 10 and 11 (1) of the Universal Declaration of Human Rights and article
14 (3) (g) of the Covenant, has been violated. Safeguarding the right not to be compelled to
testify against oneself or to confess guilt protects not only the individual but also the
interests of society in general, as it ensures that the judicial process remains trusted and
effective and preserves the credibility of evidence. In view of the seriousness of the
allegations of torture and forced confession, the Working Group has decided to refer this
case to the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment.
70.
The source also claims that Mr. Méndez Valenzuela did not have access to legal
assistance until almost seven hours after he was arrested, and only after he had signed the
confession. The Government did not specifically address this allegation in its response; it
merely stated generally that Mr. Méndez Valenzuela exercised his right to a proper defence
during the proceedings, as demonstrated by the many appeals that he lodged. In the absence
of specific information from the Government, the Working Group considers that Mr.
Méndez Valenzuela did not have access to a lawyer when he was initially questioned by the
authorities and that he made a confession without prior legal assistance. The lack of access
to a lawyer is particularly serious in this case, as Mr. Méndez Valenzuela was initially
sentenced to 17 years’ imprisonment, which is a significant prison term.
71.
All persons deprived of their liberty have the right to legal assistance by counsel of
their choice at any time during their detention, including immediately after their
8 General comment No. 32 (2007) of the Human Rights Committee on the right to equality before
courts and tribunals and to a fair trial, para. 30.
9 Ibid., para. 41. See also, for example, opinions No. 53/2018, para. 77, No. 52/2018, para. 79, No.
17/2017, para. 42, No. 10/2016, para. 48, and No. 1/2016, para. 40, and A/56/156, para. 39 (j).
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apprehension, and such access should be provided without delay.10 In this case, the delay in
providing access to legal assistance violated Mr. Méndez Valenzuela’s right to have
adequate time and facilities for the preparation of his defence and to communicate with
counsel of his own choosing, under articles 10 and 11 (1) of the Universal Declaration of
Human Rights and article 14 (3) (b) of the Covenant. The Working Group also considers
that confessions made in the absence of legal counsel are not admissible as evidence in
criminal proceedings.11
72.
The Working Group is alarmed by the source’s assertion that, when Mr. Méndez
Valenzuela was allowed to speak to his lawyer, the lawyer told him that nothing could be
done to defend him because he had already signed a confession. Although Mr. Méndez
Valenzuela appears to have had access to other lawyers during the proceedings, the
Working Group considers that there are serious doubts as to whether he received effective
legal assistance from his first lawyer. As the Working Group stipulated in 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, effective legal aid
should be provided promptly at all stages of the deprivation of liberty.12
73.
The Government has acknowledged that Mr. Méndez Valenzuela remains in pretrial
detention because the offences of which he is accused are offences for which detention is
automatic, under article 19 of the Constitution. Mr. Méndez Valenzuela is being kept in
pretrial detention while he waits for the outcome of an investigation into his allegations of
torture and a final judgment in his case.
74.
The Working Group considers it important to reiterate that automatic pretrial
detention is incompatible with the Government’s obligations under international human
rights law. The Working Group examined this issue carefully in its opinion No. 1/2018 and
concluded that mandatory pretrial detention violates article 9 (3) of the Covenant.13 This
article states that pretrial detention should be the exception rather than the rule and that it
should be based on an individualized determination that it is reasonable and necessary in
the case concerned.14
75.
The Working Group considers that automatic pretrial detention deprives the detainee
of the right to seek alternatives to detention, such as bail, in violation of the right to be
presumed innocent, which is enshrined in article 11 (1) of the Universal Declaration of
Human Rights and article 14 (2) of the Covenant. Imposing pretrial detention for specific
offences is contrary to the principle of the presumption of innocence, as the persons facing
criminal charges are detained automatically, without balanced consideration of non-
custodial alternatives. It also deprives judges of one of their core responsibilities as
members of independent and impartial tribunals, namely, the task of assessing the necessity
and proportionality of detention in each case. The Working Group respectfully invites the
Government to take steps to amend the constitutional and other provisions relating to
automatic pretrial detention in order to bring them into line with the State’s obligations
under the Covenant.
76.
Lastly, the information provided by the source shows that Mr. Méndez Valenzuela
was kept in pretrial detention from his arrest on 22 January 2008 to his initial sentencing to
17 years’ imprisonment on 30 April 2012, that is to say, for more than four years.15 It is
hard to understand why it was necessary to keep him in pretrial detention for so long, given
that – according to the source, whose statement is not contested by the Government – the
10 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, principle 9 and guideline 8
(A/HRC/30/37). See also general comment No. 35 (2014) of the Human Rights Committee on liberty
and security of person, para. 35.
11 Opinions No. 1/2014, para. 22, and No. 40/2012, para. 48. See also E/CN.4/2003/68, para. 26 (e).
12 A/HRC/30/37, principle 9 and guideline 8.
13 See opinions No. 53/2018, No. 16/2018, No. 24/2015 and No. 57/2014; see also A/HRC/19/57, paras.
48–58, and OL MEX 18/2018.
14 General comment No. 35, para. 38.
15 According to the Government’s response, this period was even longer. The Government stated that
Mr. Méndez Valenzuela was arrested on 22 January 2008 and was not sentenced until 30 May 2013,
more than five years after his arrest.
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authorities claimed that he was arrested in flagrante delicto. The Working Group considers
that this period of pretrial detention, prior to his initial sentencing, was unacceptably long.
Furthermore, as a result of the amparo proceedings brought before the Supreme Court, Mr.
Méndez Valenzuela’s sentence was revoked and his legal status has yet to be determined,
even though he has already spent over 11 years in detention. Once again, the Working
Group considers that the judicial proceedings in this case have taken an unacceptably long
time. As the Human Rights Committee has stated, the right to be tried without undue delay
is designed to avoid keeping persons in a state of uncertainty about their fate for too long.
All stages of criminal proceedings, whether in first instance or on appeal, must take place
without undue delay. 16 The Working Group therefore considers that Mr. Méndez
Valenzuela’s right to be tried within a reasonable time and without undue delay, under
articles 9 (3) and 14 (3) (c) of the Covenant, was violated during his first four years of
pretrial detention and later, during his detention pending a final judgment.
77.
For these reasons, the Working Group concludes that the violations of the right to a
fair trial are of such gravity as to give Mr. Méndez Valenzuela’s deprivation of liberty an
arbitrary character under category III.
78.
The source also claims that under the Constitution, there is a distinction, based on a
list of offences for which pretrial detention is automatic, between accused persons who
have access to alternatives to pretrial detention and those who do not. As a result, Mr.
Méndez Valenzuela, who was charged with offences for which pretrial detention was
automatic, did not enjoy equal protection under the law. In its reply, the Government
contends that, according to the criteria applied by the Human Rights Committee, Mr.
Méndez Valenzuela was not subject to any distinction, exclusion, restriction or preference
that had the purpose or effect of nullifying or impairing the recognition, enjoyment or
exercise of his rights.
79.
In its opinion No. 1/2018, the Working Group found that the constitutional
provisions allowing for automatic pretrial detention create two categories of accused person:
those charged with offences that do not automatically require detention, who can benefit
from alternatives such as bail, and those who, like Mr. Méndez Valenzuela, are charged
with criminal offences that preclude the use of such alternatives. The Working Group
reiterates that this distinction discriminates against some accused persons in a manner that
ignores the equality of human beings and is based on their “status” (that is, as persons
accused of an offence that precludes the use of non-custodial alternatives), a basis for
discrimination prohibited under articles 2 and 7 of the Universal Declaration of Human
Rights and articles 2 (1) and 26 of the Covenant.17 The Working Group is therefore of the
view that the facts of the present case disclose a violation that falls within category V.
80.
The Working Group wishes to make some final observations on the detention of Mr.
Méndez Valenzuela. The source has provided information showing that Mr. Méndez
Valenzuela suffered injuries after his arrest. These injuries included the dislocation of his
left shoulder when he was allegedly pushed as he was getting out of a helicopter while
handcuffed and blindfolded. According to the source, Mr. Méndez Valenzuela continues to
have problems with his left shoulder and suffer from the effects of other forms of physical
and psychological trauma. He was examined by independent experts in 2017 and 2018 in
accordance with the Istanbul Protocol. The Government notes in its response that, on 23
January 2008, a forensic physician from the Office of the Attorney General of the Republic
concluded that Mr. Méndez Valenzuela’s injuries were not life-threatening and would heal
within 15 days. The Government also refers to an examination carried out on 10 March
2008, when Mr. Méndez Valenzuela was transferred to Federal Social Rehabilitation Centre
No. 1, which showed that his health had not changed. Although Mr. Méndez Valenzuela’s
allegations of torture are still being investigated, the Working Group reiterates that he has
already spent more than 11 years in detention and that he has served his initial sentence in
full. The Working Group urges the Government to release Mr. Méndez Valenzuela
immediately and unconditionally and to ensure that he receives appropriate physical and
psychological care.
16 General comment No. 32, para. 35.
17 See also opinion No. 75/2018.
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81.
The Working Group notes the delays allegedly encountered by Mr. Méndez
Valenzuela when challenging the lawfulness of his detention and submitting allegations of
torture. In particular, as mentioned above, Mr. Méndez Valenzuela has been in detention for
more than 11 years and his legal status, including the applicable sentence, has yet to be
determined. According to the source, the authorities imposed various procedures and
created obstacles in order to delay Mr. Méndez Valenzuela’s release and clearly intended to
harm him by doing so.
82.
The Working Group acknowledges that some of the delays were probably a
consequence of the fact that Mr. Méndez Valenzuela submitted various amparo
applications. However, some of the delays are inexplicable, and there seem to have been
greater bureaucratic obstacles than would normally be expected in a busy criminal justice
system, including: (a) the failure of the Mexico State Human Rights Commission and the
National Human Rights Commission to provide meaningful assistance when a complaint
was filed in relation to Mr. Méndez Valenzuela’s case; (b) the refusal of the Fourth Court of
Toluca to use the independent expert evaluation obtained by Mr. Méndez Valenzuela’s
family on 8 December 2017, which meant that additional examinations had to be carried
out in May and October 2018; (c) the judge’s sudden announcement on 27 March 2018 that
the case was outside her jurisdiction and her request that it be heard in Sinaloa; and (d) the
fact that, at the time the complaint was submitted to the Working Group, more than five
months had passed without the courts in Sinaloa having provided updated information on
Mr. Méndez Valenzuela’s case.
83.
It seems to the Working Group that some of the authorities responsible for detention
have not treated the situation of Mr. Méndez Valenzuela – a young man kept in detention
after the completion of his initial sentence – with the urgency that it deserves or in a manner
that would guarantee his right to an effective remedy in accordance with article 8 of the
Universal Declaration of Human Rights and article 2 (3) of the Covenant. In view of the
circumstances, the Working Group has decided to refer this case to the Special Rapporteur
on the independence of judges and lawyers.
84.
This case is one of many submitted to the Working Group in the last five years in
connection with arbitrary deprivation of liberty in Mexico. 18 The Working Group is
concerned that this may be indicative of a systemic problem of arbitrary detention in
Mexico which, if it continues, may constitute a serious violation of international law. The
Working Group recalls that, under certain circumstances, widespread or systematic
imprisonment or other severe deprivation of liberty in violation of the rules of international
law may constitute crimes against humanity.19
85.
Lastly, the Working Group would welcome the opportunity to visit Mexico in order
to help the Government to address the issue of arbitrary deprivation of liberty. Given that a
significant length of time has elapsed since its last visit to Mexico, in November 2002, the
Working Group deems it an appropriate time to conduct another visit to the country. Since
Mexico is currently a member of the Human Rights Council and recently (in November
2018) underwent a review of its human rights record as part of the third cycle of the
universal periodic review, it would be appropriate for the Government to extend an
invitation. The Working Group notes that the Government issued a standing invitation to all
special procedure mandate holders in March 2001 and looks forward to receiving a positive
response to its country visit requests of 15 April 2015, 10 August 2016 and 9 February and
18 December 2018.20
Disposition
86.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Rafael Méndez Valenzuela, being in
contravention of articles 2, 7, 9, 10 and 11 (1) of the Universal Declaration of
18 Opinions No. 75/2018, No. 53/2018, No. 16/2018, No. 1/2018, No. 66/2017, No. 65/2017, No.
24/2017, No. 23/2017, No. 58/2016, No. 17/2016, No. 56/2015, No. 55/2015, No. 19/2015, No.
18/2015, No. 23/2014, No. 58/2013 and No. 21/2013.
19 Opinion No. 47/2012, para. 22.
20 The Government stated that it was unable to schedule a visit for 2018 on account of its other
international commitments.
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Human Rights and articles 2 (1), 9, 14 and 26 of the International Covenant on Civil
and Political Rights, is arbitrary and falls within categories I, III and V.
87.
The Working Group requests the Government to take the steps necessary to remedy
the situation of Mr. Méndez Valenzuela 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 Covenant.
88.
The Working Group considers that, taking into account all the circumstances of the
case, including the risk of further damage to Mr. Méndez Valenzuela’s physical and mental
health, the appropriate remedy would be to release Mr. Méndez Valenzuela immediately
and accord him an enforceable right to compensation and other reparation, in accordance
with international law.
89.
In this regard, the Working Group notes the interpretative declaration made by
Mexico regarding article 9 (5) of the Covenant, which states that:
Under the Political Constitution of the United Mexican States and the relevant
implementing legislation, every individual enjoys the guarantees relating to penal
matters embodied therein, and consequently no person may be unlawfully arrested
or detained. However, if by reason of false accusation or complaint any individual
suffers an infringement of this basic right, he has, inter alia, under the provisions of
the appropriate laws, an enforceable right to just compensation.21
The Working Group notes that the State’s domestic law establishes additional grounds for
compensation.
90.
The Working Group urges the Government to conduct a full and independent
investigation into the circumstances surrounding the arbitrary detention of Mr. Méndez
Valenzuela, including the allegations of torture, and to take appropriate measures against
those responsible for the violation of his rights.
91.
The Working Group requests the Government to harmonize its laws, especially
article 19 of the Constitution, with the commitments made by Mexico under international
human rights law, taking into account the conclusions set forth in the present opinion.
92.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers this case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment and the Special Rapporteur on the independence of judges and
lawyers.
93.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
94.
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. Méndez Valenzuela has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Méndez
Valenzuela;
(c)
Whether an investigation has been conducted into the violation of Mr.
Méndez Valenzuela’s rights and, if so, what the outcome of the investigation was;
(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.
95.
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
21 Multilateral Treaties Deposited with the Secretary-General, chap. IV (4).
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15
whether further technical assistance is required, for example through a visit by the Working
Group.
96.
The Working Group requests the source and the Government to provide the above-
mentioned information within six months of the date of 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.
97.
The Working Group notes 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.22
[Adopted on 26 April 2019]
22 Human Rights Council resolution 33/30, paras. 3 and 7.