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.20-02463 (E) 310320 010420
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its eighty-fifth session, 12–16 August 2019
Opinion No. 54/2019 concerning José de la Paz Ferman Cruz and Aren
Boyazhyan (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 42/22.
2.
In accordance with its methods of work (A/HRC/36/38), on 22 August 2018, the
Working Group transmitted to the Government of Mexico a communication concerning
José de la Paz Ferman Cruz and Aren Boyazhyan. The Government replied to the
communication on 22 October 2018. 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);
* In accordance with paragraph 5 of the Working Group’s methods of work, José Antonio Guevara
Bermúdez did not participate in the discussion of the present case.
United Nations
A/HRC/WGAD/2019/54
General Assembly
Distr.: General
18 February 2020
English
Original: Spanish
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(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).
Submissions
Communication from the source
4.
The source has submitted information with regard to two situations involving the
deprivation of liberty of migrants, namely Mr. Ferman Cruz and Mr. Boyazhyan.
According to the source, these two cases are indicative of a structural issue and illustrate
how administrative detention is applied as a rule, without periodic review, judicial
protection or due process guarantees.
The case of Mr. Ferman Cruz
5.
Mr. Ferman Cruz is a national of El Salvador. He is 54 years old and cannot read.
He did farm work and was self-employed. He fled his own country after his land was
stolen, his life was threatened and a member of his family was sexually assaulted. He
arrived in Mexico on 10 September 2015.
6.
Mr. Ferman Cruz was detained on 11 November 2015 in Tapachula by agents of the
National Institute of Migration. He was taken to the Siglo XXI migrant holding centre,
where he was detained and deportation proceedings were brought against him.
7.
On 26 November 2015, Mr. Ferman Cruz submitted an application for refugee status
to the Mexican Commission on Assistance for Refugees. This resulted in the suspension of
the migration procedure pending the outcome of the asylum application.
8.
On 6 January 2016, after having been detained for two months with no explanation,
Mr. Ferman Cruz was transferred to the migrant holding centre in Mexico City.
9.
According to the source, on 26 January 2016 the National Institute of Migration
issued Decision VARANA 5359, which states: “The holding period ... has been excessively
long and extending it any further could undermine the foreign national’s well-being.” The
Decision provides that “the person concerned should be granted a temporary visitor’s
permit with permission to carry out paid work”. The Decision was not brought to Mr.
Ferman Cruz’s attention and was not carried out. He became aware of it only on 4 October
2016, upon gaining access to his case file.
10.
On 11 May 2016, Mr. Ferman Cruz appointed legal counsel to represent him in
proceedings before the National Institute of Migration. On 20 June 2016, Mr. Ferman Cruz
petitioned the National Institute of Migration to release him and regularize his migration
status on humanitarian grounds and confirmed that he had appointed legal counsel.
11.
In the absence of a response from the migration authorities, two requests for a reply,
as well as evidence that Mr. Ferman Cruz was eligible for release, were submitted, on 29
June and 4 July 2016.
12.
On 7 July 2016, Mr. Ferman Cruz was informed that a reply had already been sent,
but the competent migration official did not deliver this reply or read it out to him. Since
Mr. Ferman Cruz cannot read, he refused to sign the notice of receipt with his fingerprint.
13.
On 12 July 2016, Mr. Ferman Cruz’s lawyer requested information on the Decision
from the competent migration official, who stated that Mr. Ferman Cruz’s release had been
authorized but he did not have a copy of the Decision and did not know why it had not been
executed.
14.
On 13 July 2016, Mr. Ferman Cruz’s lawyer travelled to the offices of the National
Institute of Migration, where his requests to view the response of the Institute and review
the case file were denied on the ground that there was allegedly no record of his
appointment as Mr. Ferman Cruz’s counsel, despite the fact that his appointment was
recorded in the case file. Later that day, the official who had delivered the earlier notice of
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receipt demanded that Mr. Ferman Cruz sign a document with his fingerprint as a
prerequisite for the execution of the order for his release. Mr. Ferman Cruz agreed to sign
the document, although he was unable to read its contents, but was not released. In
response, Mr. Ferman Cruz launched various judicial proceedings.
15.
According to the source, Mr. Ferman Cruz started receiving threats from officials in
the migrant holding centre after filing for legal remedies, such as “We are going to send
you back to your own country”. Attempts were made to pressure him into signing an order
of assisted return and he was threatened with deportation several times. Examples of the
threats he received include: “You should give up on your appeals or we will deport you”;
“We do not care what the judge says, we are going to send you back to your own country”;
“If you do not withdraw your appeals, we will deport you”; and “We are going to make you
disappear”. Mr. Ferman Cruz was subjected to various reprisals, including punishments,
restrictions on the food he was given and the calls he was allowed to make, verbal abuse
and a lack of medical assistance.
16.
The source reports that Mr. Ferman Cruz was released on 8 November 2016,
pursuant to a decision issued by the Mexican Commission on Assistance for Refugees.
However, the arbitrariness of his detention and the procedural irregularities in his case have
not been acknowledged.
Application for refugee status
17.
The source reports that the Mexican Commission on Assistance for Refugees
received Mr. Ferman Cruz’s application for refugee status on 26 November 2015, 15 days
after he was placed in detention.
18.
On 2 February 2016, the Commission issued a decision rejecting Mr. Ferman Cruz’s
application for refugee status, which he appealed. On 19 May 2016, the Commission
decided that Mr. Ferman Cruz’s case should be reconsidered, in the light of questions
surrounding the accuracy of the information presented on his application form, specifically
doubts as to whether the form reflected the information he had provided to the official from
the Commission, since he had not filled it out himself and was unable to verify whether it
was accurate.
19.
On 1 and 5 July 2016, Mr. Ferman Cruz appointed legal counsel to represent him in
proceedings before the Commission; this appointment was acknowledged on 11 July.
20.
The source indicates that the Commission did not take any measures to advance the
proceedings for several months. On 27 September 2016, an official from the Commission
collected Mr. Ferman Cruz’s background information a second time for the purposes of his
asylum application. On 21 October 2016, the Commission decided to grant protection to
Mr. Ferman Cruz.
21.
On 4 November 2016, a request for an update on the asylum procedure was sent to
the Commission but went unanswered. On 8 November, the Commission issued an official
notice of its decision to grant protection to Mr. Ferman Cruz, pursuant to which he was
released from the migrant holding centre.
Judicial protection against deprivation of liberty
22.
Mr. Ferman Cruz filed various petitions for the remedy of amparo, in which he
complained of violations of his rights to liberty and integrity of the person and of due
process.
23.
In a petition for amparo submitted on 12 July 2016, Mr. Ferman Cruz claimed that
he was being held illegally, since he had been informed by an official of the National
Institute of Migration that the order had been given for his release. The National Institute of
Migration denied the allegations and the proceedings were dismissed on 12 August 2016.
24.
The second petition for amparo, submitted on 26 July 2016, pertained to the denial
of Mr. Ferman Cruz’s right to be released and to the application of a non-custodial measure.
The judge in the case ordered that Mr. Ferman Cruz be granted access to his case file, and
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he was thus able to review the details of the proceedings. In October 2016, the decision of
26 January ordering Mr. Ferman Cruz’s release came to light.
25.
On 25 August 2016, the Court ruled that Mr. Ferman Cruz could be released on
condition that the Embassy of El Salvador agree to take responsibility for him and to
provide a financial guarantee. On 2 September 2016, Mr. Ferman Cruz’s legal counsel
challenged the ruling, alleging a violation of privacy and confidentiality owing to the
unauthorized communication of personal information. On 17 April 2017, the court ordered
that Mr. Ferman Cruz be released on condition that he agreed to sign in periodically with
the public authorities. This decision was a positive step but it was ineffective, since Mr.
Ferman Cruz had already been released.
26.
According to the source, on 13 June 2017, during the amparo proceedings, medico-
psychological evidence in relation to cases of suspected torture or ill-treatment was
submitted, in accordance with the Manual on the Effective Investigation and
Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (Istanbul Protocol). On 14 June 2017, the judge decided not to admit the
evidence. On 17 August 2017, the Supreme Court was requested to assume jurisdiction
over the case. However, the Court rejected this request.
27.
The source reports that a third petition for amparo, this time contesting the
deportation order, was submitted on 24 August 2016. As a result of taking these legal steps,
Mr. Ferman Cruz was threatened with deportation and was subjected to duress, verbal
abuse and punishments.
28.
According to the source, on 29 September 2016 the Court decided to discontinue the
amparo proceedings without reviewing the merits of the case, on the basis of the
authorities’ argument that the purpose of Mr. Ferman Cruz’s detention was not deportation
but temporary holding. This decision was contested on 24 October but was ultimately
upheld.
29.
A fourth petition for amparo was submitted on 14 October 2016 regarding the
failure to execute the release order and alleged acts of cruel, inhuman or degrading
treatment. The judge in the case disqualified himself from hearing the matter of non-
compliance with the release order but declared himself competent to review the matter of
the alleged violations of integrity of the person. Neither matter was resolved, however, as
the decision was made to discontinue the proceedings.
The source’s allegations
30.
The source indicates that the migration authorities issued a release order on 26
January 2016, ordering that Mr. Ferman Cruz’s detention be terminated. However, the
authorities failed to give official notice of or comply with the order, on which grounds the
source alleges that the deprivation of liberty of Mr. Ferman Cruz by the migration
authorities was arbitrary.
31.
The source alleges that the detention of Mr. Ferman Cruz was not carried out in
accordance with the rules of a fair and impartial process. The Migration Act provides that
foreign nationals have the right to enjoy due process guarantees, to submit evidence and to
plead their case, to have access to their migration file, to be assisted by legal counsel and to
benefit from the services of a translator or an interpreter.
32.
It is alleged that Mr. Ferman Cruz did not have the opportunity to argue in defence
of his rights. He was not given an opportunity to be heard and make his case before the
authorities and he was not informed of the details of the reasons for his detention.
Moreover, he was not informed of his rights as a detainee.
33.
It is alleged that the National Institute of Migration obstructed Mr. Ferman Cruz’s
enjoyment of effective and timely legal assistance and representation. The source highlights
that access to the records contained in Mr. Ferman Cruz’s file was denied, that the
authorities refused to recognize his legal counsel, that the visits he received from his lawyer
were constantly monitored by the authorities and that limitations were imposed on his
ability to communicate with the outside world.
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34.
The source alleges that the prolongation of Mr. Ferman Cruz’s administrative
detention constituted a violation of his liberty, since it did not comply with the principles of
proportionality and necessity. According to the source, although access to judicial channels
was guaranteed, such channels did not offer effective protection. Mr. Ferman Cruz’s
detention was not subject to periodic review and was reviewed only at the request of a
party.
35.
The source alleges that the actions of the judicial officials undermined the due
protection of Mr. Ferman Cruz’s personal liberty and caused the prolongation of his
detention, since they led to the submission of multiple appeals to higher courts that
prolonged the proceedings and delayed a decision on the merits.
36.
The source notes that despite the various judicial actions undertaken, at no point did
a judge review the legality of Mr. Ferman Cruz’s detention. Only once he had appointed
legal counsel were steps taken in defence of his liberty.
37.
The source indicates that Instruction INM/DGCVM/0014/2016 establishes a special
regime of a general and impersonal nature, under which there is a discriminatory category
that allows for the segregation and confinement of a sector of the migrant population,
namely asylum seekers, and the indefinite prolongation of their detention. According to the
source, the authorities had no other reason, that is to say, no reason based on an
individualized assessment of the necessity, proportionality or reasonableness of detention,
to deprive Mr. Ferman Cruz of his liberty.
The case of Mr. Boyazhyan
38.
Mr. Boyazhyan was born in Crimea (Autonomous Republic of Crimea and the city
of Sevastopol, Ukraine, temporarily occupied by the Russian Federation). He went to
Mexico in 2013 to live with his partner. He last entered the country regularly on 30 June
2014 on a tourist visa.
39.
On 9 March 2016, officials from the National Institute of Migration went looking for
Mr. Boyazhyan at his home, without identifying themselves and without a written warrant.
They shouted at Mr. Boyazhyan and demanded that he show them his migration documents.
Since he did not have any documents, the officials forcibly escorted him from the building,
despite not having a warrant to enter his home. Mr. Boyazhyan was taken into the custody
of the National Institute of Migration in Tijuana, where he was placed in “holding” pending
a decision on his deportation.
40.
On 16 March 2016, at the migrant holding centre, Mr. Boyazhyan applied for
refugee status.
41.
According to the source, Mr. Boyazhyan was transferred to the migrant holding
centre in Mexico City on 25 March 2016. This was the only transfer of which he received
advance notice.
42.
On 23 March 2013, prior to the transfer, the Mexican Commission on Assistance for
Refugees sent to the National Institute of Migration a request for Mr. Boyazhyan to submit,
within three days, justification for his having failed to apply for refugee status within 30
days of his entry into Mexico. Mr. Boyazhyan had been unaware of this deadline and
therefore did not reply.
43.
On 29 March 2016, at the migrant holding centre, the National Institute of Migration
took a statement from Mr. Boyazhyan. The interview was conducted through an English
interpreter, which made it impossible to communicate effectively. Nonetheless, Mr.
Boyazhyan was able to explain that the situation in Crimea (Autonomous Republic of
Crimea and the city of Sevastopol, Ukraine, temporarily occupied by the Russian
Federation) had made him stateless.
44.
On 12 July 2016, Mr. Boyazhyan’s legal counsel requested that he be released on
bail, in accordance with article 102 of the Migration Act. This request was ignored and no
reply was received.
45.
According to the source, on 29 July 2016 Mr. Boyazhyan withdrew an application
for amparo as a result of pressure from the migration authorities, the lack of a response
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from the judicial authorities, exhaustion due to his prolonged detention and the birth of his
son while he was in detention. The source reports that the National Institute of Migration
advised Mr. Boyazhyan not to complicate his situation any further and offered to “help
him” to resolve his migration situation if he withdrew his application for amparo.
46.
On 16 August 2016, the National Institute of Migration issued a deportation order
against Mr. Boyazhyan. He was taken to the airport in Mexico City that same day.
However, the deportation did not take place because Mr. Boyazhyan refused to board the
plane and the migration officials escorting him did not have visas to enter Ukraine.
47.
On 17 August 2016, Mr. Boyazhyan was transferred to the migrant holding centre in
Pachuca, Hidalgo State, making it impossible for him to continue receiving assistance from
his legal counsel. This transfer was conducted without advance notice.
48.
On 1 September 2016, Mr. Boyazhyan submitted a request for the initiation of the
statelessness determination procedure.
49.
According to the source, on 6 September 2016 Mr. Boyazhyan was in his cell when
migration officials entered without warning to take him to the airport for deportation. This
time, Mr. Boyazhyan was not presented as an ordinary passenger but rather was made to
enter the plane through the lower deck. National Institute of Migration officials hit him and
pushed him in an attempt to force him into submission. When the pilot of the plane became
aware of the situation, he refused to transport Mr. Boyazhyan.
50.
On 7 September 2016, Mr. Boyazhyan was transferred to the migrant holding centre
in Tlaxcala, without advance notice and without any record being made of the transfer.
51.
On 12 September 2016, the Mexican Commission on Assistance for Refugees
notified the National Institute of Migration that Mr. Boyazhyan’s request for the initiation
of the statelessness determination procedure was under consideration. On 8 November, the
Commission interviewed Mr. Boyazhyan without informing him of the interview in
advance. That was the first and last time Mr. Boyazhyan had contact with officials from the
Commission.
52.
On 15 November 2016, Mr. Boyazhyan was granted stateless status through a
definitive decision issued by the Mexican Commission on Assistance for Refugees, of
which the National Institute of Migration was notified. However, the Commission did not
formally notify Mr. Boyazhyan of its decision.
53.
Mr. Boyazhyan remained unaware of the decision between 15 November and his
release on 2 December 2016.
54.
On 1 December 2016, without prior notice, Mr. Boyazhyan was informed of the
Commission’s decision, the order was given for his release from the migrant holding centre
on account of his stateless status, his migration status was regularized and the deportation
order issued against him was dropped.
Administrative migration procedure
55.
The source reports that on 16 March 2016 Mr. Boyazhyan applied for refugee status.
On 17 April 2016, the Mexican Commission on Assistance for Refugees notified the
National Institute of Migration that Mr. Boyazhyan’s application had been ruled
inadmissible but did not share this information with Mr. Boyazhyan. The Commission had
made its decision without ever contacting Mr. Boyazhyan.
56.
Subsequently, on 7 September 2016, Mr. Boyazhyan submitted his request for the
initiation of the statelessness determination procedure. Two months passed before he was
interviewed by the Commission.
57.
The source claims that this lack of diligence and communication, in addition to the
lack of timely and adequate access to the procedures concerned, contributed to the
unnecessary and disproportionate prolongation of the deprivation of liberty of Mr.
Boyazhyan, created uncertainty and undermined his physical and psychological integrity.
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Judicial protection
58.
According to the source, Mr. Boyazhyan’s legal counsel filed an application for
amparo on 28 April 2016 with regard to the transfer and deprivation of liberty of Mr.
Boyazhyan and the deportation order issued against him. The source indicates that the
judge in the case ordered that Mr. Boyazhyan’s deportation be suspended and that he
remain in the migrant holding centre. The judge did not rule on Mr. Boyazhyan’s request
for the application of a non-custodial measure.
59.
On 28 April 2016, the Court served Mr. Boyazhyan notice of a decision while he
was in the migrant holding centre, where he claimed to have been subjected to ill-treatment.
Subsequently, on 18 May 2016, in the context of new proceedings opened in order to shed
light on the treatment of Mr. Boyazhyan, he was prevented from adequately explaining his
situation by the presence of personnel from the migrant holding centre during his hearing;
he felt threatened and lacked the necessary confidence and freedom to describe the
demeaning and offensive way in which he had been treated. Mr. Boyazhyan considered it
safe to mention only that he had been beaten during his detention in Tijuana. On 20 May
2016, the district judge ordered an investigation into these allegations.
60.
According to reports issued by the district judge, this investigation began on 6 June
2016. However, Mr. Boyazhyan had no contact with any public officials in relation to the
investigation and was kept in the dark with regard to its progress and outcome.
61.
Mr. Boyazhyan submitted a second petition for amparo on 2 November 2016,
seeking judicial protection against his detention and possible deportation while the
determination of his legal status was still under way. He requested that he be released in
view of his state of health as a result of the treatment to which he had been subjected, the
poor detention conditions in which he was being held and the uncertainty surrounding his
situation.
62.
Through the amparo procedure, Mr. Boyazhyan was able to obtain copies of the
migration file kept on him by the National Institute of Migration, to which he had had no
access during the administrative migration procedure.
63.
Since Mr. Boyazhyan did not speak Spanish, the judge decided that a migration
official should act as an interpreter. The judge also requested other public institutions to
provide translators for the purposes of the proceedings, but the institutions concerned
indicated that they had no translators with the appropriate language combination. As a
result, communication during the proceedings was inadequate.
64.
On 28 March 2017, the judge decided to dismiss the case. The source alleges that, in
dismissing the case, the judge shirked his responsibility to dispense justice and failed in his
duty to protect and uphold human rights.
65.
The source reports that the migration departments of the local public authorities of
Hidalgo and Tlaxcala sent daily updates on Mr. Boyazhyan’s physical health to the judge
hearing the amparo case. These medical records and certificates were not studied or taken
into account by the court in its decision-making process, despite the fact that they
demonstrated that Mr. Boyazhyan’s physical and mental health was deteriorating.
The source’s allegations
66.
The source claims that Mr. Boyazhyan was deprived of his personal liberty for a
prolonged period of more than nine months. It is alleged that Mr. Boyazhyan was detained
with no regard for his personal circumstances. These circumstances include the fact that he
had been a resident in Mexico for more than two years, was in possession of identity papers
and resided at an address known to the migration authorities. The authorities also failed to
take into account the fact that he did not understand Spanish, had ties with the community,
had a newborn child and had applied for international protection.
67.
The source indicates that the authorities ignored Mr. Boyazhyan’s requests for the
application of a non-custodial measure; when he requested release on bail, the migration
authorities failed to respond. Moreover, the legality of his detention was not subject to
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periodic review. After giving the order for Mr. Boyazhyan to be detained, the migration
authorities did not voluntarily review the legality of his detention.
68.
The source stresses that the only means of challenging detention is to file for
amparo. However, the judges who heard Mr. Boyazhyan’s case allowed him to remain
deprived of liberty. The Third District Court of Amparo in Tlaxcala also failed to take any
action to recognize or remedy the violations of which he was a victim, despite ordering that
Mr. Boyazhyan receive medical treatment and being in possession of a record of his
physical and psychological condition.
69.
The source also argues that Mr. Boyazhyan’s detention and the proceedings before
the National Institute of Migration and the Mexican Commission on Assistance for
Refugees did not follow the rules of due administrative process. Mr. Boyazhyan was not
informed of the reasons for his detention, other than his irregular migration status, and he
was not given a clear and well-defined opportunity to challenge his detention. The absence
of any response to his request for release on bail and the fact that he was not granted access
to his case file also amount to violations of his rights.
70.
With regard to the proceedings before the Mexican Commission on Assistance for
Refugees, the source claims that a lack of due process guarantees can be seen in the
Commission’s failure to communicate directly with Mr. Boyazhyan and interview him in
person. Mr. Boyazhyan was not informed of the progress of the statelessness determination
procedure.
71.
With regard to judicial protection, the source indicates that although formal access to
the justice system was guaranteed, effective, rapid and impartial protection was not
provided. While an order to suspend Mr. Boyazhyan’s detention was issued, he nonetheless
remained in detention.
72.
The source claims that the remedy of amparo and other forms of protection were
ineffective and that the final ruling in his case proves this. The court ruled that the
prolonged nature of Mr. Boyazhyan’s detention was the result of the exercise by Mr.
Boyazhyan of the legal defence mechanisms open to him, which suggests that the right to
liberty must be relinquished as a prerequisite for the exercise of means of defence and
access to justice.
73.
The source maintains that, in the present case, Mr. Boyazhyan’s detention and its
effect on his physical and mental health constituted a form of torture. His detention was
punishment for his irregular entry and stay in Mexico. Moreover, the prolongation of Mr.
Boyazhyan’s detention was an unjust, disproportionate and unreasonable punishment for
his having exercised the right to a legal defence and judicial protection.
74.
The officials of the National Institute of Migration clearly and intentionally harassed
and pressured Mr. Boyazhyan in order to make him withdraw his applications for amparo.
The harassment and pressure increased when the Court failed to protect his rights. This
resulted in Mr. Boyazhyan’s withdrawal of his amparo application on the promise that if he
did so the National Institute of Migration would resolve his situation, after telling him that
no solution would be possible until he withdrew his application. Once Mr. Boyazhyan had
complied with these conditions, the authorities ordered that he be deported and tried to
implement their decision the same day.
75.
The transfer of Mr. Boyazhyan to the migrant holding centres in Hidalgo and
Tlaxcala made it clear that his detention was a form of punishment. These transfers were
clearly reprisals for Mr. Boyazhyan’s having refused and resisted deportation, since they
were carried out the day after the attempt to deport him failed.
76.
The source indicates that during almost nine months of detention, Mr. Boyazhyan
applied for release, judicial protection, refugee status and stateless status. However, these
legal steps were met with intimidation and harassment intended to thwart his attempts to
mount a legal defence.
77.
Mr. Boyazhyan’s detention caused him severe physical and psychological suffering.
One of the main methods used by the authorities to coerce Mr. Boyazhyan was to isolate
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him from his loved ones and make it difficult for him to benefit from legal representation
and due process guarantees by transferring him to Hidalgo and then to Tlaxcala.
78.
According to the source, the suffering that Mr. Boyazhyan experienced as a result of
his detention and treatment was documented in certificates that demonstrate the
deterioration of his health. The certificates show that Mr. Boyazhyan was found to be in a
good state of health when he was placed in the first migrant holding centre but, over time,
began to show symptoms of anxiety that led to illness; he was later diagnosed with other
conditions and illnesses.
79.
The source claims that a psychological assessment carried out within the framework
of the Tlaxcala system for the comprehensive development of the family clearly concluded
that Mr. Boyazhyan was in an emotional state of complete distress.
80.
The source indicates that Mr. Boyazhyan was diagnosed with adjustment disorder
with anxiety and generalized anxiety disorder. Both the migration authorities and the courts
were fully aware of the harm that the detention and detention conditions were causing Mr.
Boyazhyan but took no measures to protect his integrity.
Response from the Government
81.
On 22 August 2018, the Working Group transmitted the source’s allegations to the
Government, requesting it to provide all relevant information by 22 October 2018. The
Government submitted its response on 22 October 2018.
82.
The Government indicates that Mr. Ferman Cruz was taken into the custody of the
National Institute of Migration in Chiapas on 21 November 2015 because he had no
migration documents. The National Institute of Migration initiated the migration procedure
and notified the relevant consular officials. On 26 November 2015, Mr. Ferman Cruz
applied for refugee status, in response to which the Mexican Commission on Assistance for
Refugees requested the National Institute of Migration not to take measures to return him to
his country of origin.
83.
On 6 January 2016, the director of the migrant holding centre in Chiapas gave orders
for Mr. Ferman Cruz to be transferred to the migrant holding centre in Mexico City in order
to facilitate the refugee status application procedure.
84.
On 26 January 2016, Mr. Ferman Cruz was notified of an official instruction
granting him temporary release from the migrant holding centre and entitling him to a work
permit. However, the Government indicates that Mr. Ferman Cruz did not wish to leave the
migrant holding centre.
85.
On 2 February 2016, the Mexican Commission on Assistance for Refugees issued a
decision stating that it would not grant Mr. Ferman Cruz refugee status or provide him with
complementary protection. On 2 March 2016, Mr. Ferman Cruz filed an application for the
reconsideration of the facts of his case. On 19 May 2019, the Commission declared its
previous decision null and void and ordered that the procedure be conducted again.
86.
As a result, on 21 October 2016 the Commission issued a new decision granting
refugee status and complementary protection to Mr. Ferman Cruz. Mr. Ferman Cruz was
notified of the new decision on 4 November 2016. On 7 November 2016, the National
Institute of Migration released Mr. Ferman Cruz from the migrant holding centre.
87.
The Government reports that the office of the National Institute of Migration in Baja
California ordered the initiation of administrative proceedings against Mr. Boyazhyan on 9
March 2016, when he was found to be unable to prove that he was in the country lawfully.
He was placed in temporary holding pending the resolution of his migration situation.
88.
On 18 March 2016, the National Institute of Migration informed the Mexican
Commission on Assistance for Refugees that Mr. Boyazhyan wished to apply for refugee
status in Mexico. However, the Commission rejected Mr. Boyazhyan’s application on the
ground that it had been submitted after the applicable deadline.
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89.
On 22 March 2016, the National Institute of Migration gave the order for Mr.
Boyazhyan to be transferred to the migrant holding centre in Mexico City pending the
resolution of his case.
90.
On 28 April 2016, Mr. Boyazhyan filed for indirect amparo proceedings against the
immigration check, his detention and his transfer to Mexico City. That day, the acts
complained of were suspended. On 26 July 2016, Mr. Boyazhyan withdrew his application
for amparo.
91.
On 16 August 2016, the National Institute of Migration issued a deportation order
against Mr. Boyazhyan and gave the order for him to be transferred to the migrant holding
centre in Hidalgo pending deportation.
92.
On 9 September 2016, following an interview with officials from the Mexican
Commission on Assistance for Refugees, Mr. Boyazhyan made it known that he wished to
apply for stateless status. The Commission reviewed Mr. Boyazhyan’s application and
granted him stateless status on 2 December 2016.
The “presentation” and holding of both migrants were conducted in accordance with
applicable legislation
93.
The Government stresses that the detention of Mr. Ferman Cruz and Mr. Boyazhyan
was conducted in accordance with the procedure known as presentación (“presentation”),
which is provided for in article 3 of the Migration Act and is defined as “a measure ordered
by the National Institute of Migration whereby foreign nationals who are unable to
demonstrate their migration status are placed in temporary holding for the purposes of the
regularization of their stay or to facilitate their return”.
94.
On 21 November 2015, following an immigration check in a public place, Mr.
Ferman Cruz was taken into the custody of the National Institute of Migration since he was
unable to prove that his migration status was regular. Administrative proceedings were then
initiated against Mr. Ferman Cruz and he was placed in holding pending the resolution of
his situation.
95.
On 9 March 2016, following an immigration check in Tijuana, Mr. Boyazhyan was
taken into the custody of the authorities because he did not have the necessary documents to
prove that his migration status was regular. Later that day, the National Institute of
Migration initiated the migration procedure, pursuant to which Mr. Boyazhyan was placed
in temporary holding.
96.
In the light of the foregoing, the Government indicates that the presentation and
holding of Mr. Ferman Cruz and Mr. Boyazhyan were ordered by the National Institute of
Migration, the competent migration authority, in accordance with the Migration Act, and
therefore in accordance with Mexican legislation.
The detention was reasonable, necessary and proportionate
97.
The Government indicates that Mr. Ferman Cruz was placed in temporary holding in
order to ensure his presence during the migration procedure and thus facilitate the
resolution of his migration situation. On 26 November 2015, Mr. Ferman Cruz expressed
his intention to apply for refugee status, in response to which the Mexican Commission on
Assistance for Refugees requested the National Institute of Migration to refrain from taking
measures to return him to his country of origin. The Commission issued a decision granting
Mr. Ferman Cruz complementary protection, of which he was notified on 4 November
2016.
98.
Mr. Ferman Cruz remained in a migrant holding centre while his legal counsel acted
in his defence. This included the submission of multiple amparo applications against
alleged deportation orders, his prolonged detention, acts of torture and ill-treatment, and the
failure to execute the order for his release. The amparo proceedings were dismissed on
grounds of inadmissibility owing to a lack of evidence that the alleged violations took place
and to a change in Mr. Ferman Cruz’s legal status.
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99.
The Government indicates that these applications prevented the National Institute of
Migration from carrying out other measures to advance the procedure, since the courts
ordered that the procedure be temporarily suspended.
100.
The Government highlights that, in response to Mr. Ferman Cruz’s application for
refugee status, on 26 January 2016 the National Institute of Migration issued Decision
VARANA 5359, granting him visitor status and permission to carry out paid work. The
Decision also authorized Mr. Ferman Cruz’s release from the migrant holding centre.
101.
The Government indicates that Mr. Ferman Cruz was notified of the Decision the
day it was issued. However, he refused to leave the migrant holding centre, indicating that
he would prefer to remain there during the migration procedure; this decision was recorded
in writing by a migration official and authenticated with Mr. Ferman Cruz’s fingerprint
signature.
102.
On 7 November 2016, the National Institute of Migration issued a decision ordering
Mr. Ferman Cruz’s release, in the light of the decision of the Mexican Commission on
Assistance for Refugees to grant him complementary protection.
103.
In the light of the foregoing, the Government claims that the presentation and
holding of Mr. Ferman Cruz were reasonable, proportionate and necessary, given all the
circumstances of the case.
104.
The Government indicates that Mr. Boyazhyan was placed in a migrant holding
centre because he did not have the necessary documents to prove that he was in Mexico
lawfully and his presence was required by the National Institute of Migration for the
purposes of the subsequent procedures.
105.
On 18 March 2016, the National Institute of Migration informed the Mexican
Commission on Assistance for Refugees that Mr. Boyazhyan wished to apply for refugee
status. However, the Commission rejected Mr. Boyazhyan’s application on the ground that
it had been submitted after the applicable deadline.
106.
Subsequently, on 9 September 2016, following an interview with officials from the
Mexican Commission on Assistance for Refugees, Mr. Boyazhyan made it known that he
wished to request the initiation of the statelessness determination procedure. The Mexican
Commission on Assistance for Refugees reviewed the request and issued a decision
granting Mr. Boyazhyan stateless status. Accordingly, on 2 December 2016, the National
Institute of Migration issued an order for Mr. Boyazhyan’s release.
107.
While Mr. Boyazhyan was in temporary holding, his legal counsel filed two
petitions for amparo.
108.
The first set of amparo proceedings were brought on 28 April 2016 with regard to
alleged human rights violations that supposedly occurred during the immigration inspection
at Mr. Boyazhyan’s home, his detention, his transfer to the migrant holding centre, his
holding on the premises of the National Institute of Migration and a deportation order
issued against him. However, on 26 July 2016, Mr. Boyazhyan withdrew his application for
amparo.
109.
The second set of amparo proceedings were brought on 2 November 2016 with
regard to alleged human rights violations in connection with the deportation orders issued
against Mr. Boyazhyan. However, on 28 March 2017, the judge hearing the case decided to
close the proceedings because Mr. Boyazhyan had been granted stateless status.
110.
In this regard, the Government indicates that the provisions of article 111 of the
Migration Act on the prolongation of temporary holding measures resulting from an
application for amparo or another procedure are being updated, to the effect that the
applicant must remain in temporary holding until such applications are resolved.
111.
The Government claims that the foregoing demonstrates that the presentation and
holding of Mr. Boyazhyan were conducted in accordance with the principles of
reasonableness, proportionality and necessity, which must be met in order for detention to
be considered non-arbitrary.
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112.
In view of the fact that there was a legal basis for the presentation and holding of
Mr. Ferman Cruz and Mr. Boyazhyan, since they were not in possession of documents
proving that they were in Mexico lawfully, and that the measures taken were necessary,
proportionate and reasonable and both complainants are now at liberty, the Government
requests that their detention be found to be non-arbitrary.
The presentation and holding of the migrants did not result from the exercise of rights or
freedoms
113.
The Government reiterates that the presentation and holding of Mr. Ferman Cruz
and Mr. Boyazhyan were carried out for reasons of public order, in accordance with the
law. Moreover, Mr. Ferman Cruz and Mr. Boyazhyan had the opportunity to seek remedies
against alleged violations before the Mexican courts, which they did by initiating the
amparo proceedings mentioned above.
114.
The Government indicates that since the presentation and holding of Mr. Ferman
Cruz and Mr. Boyazhyan did not result from their exercise of rights or freedoms, but rather
were carried out to allow the National Institute of Migration to regularize their migration
status, their detention does not fall under category II.
The presentation and holding of the migrants did not result from the total or partial non-
observance of the international norms relating to the right to a fair trial
115.
The Government indicates that persons detained in the context of migration
procedures have the same rights as persons detained in the context of criminal justice or
administrative proceedings, including the rights set out in the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
116.
In accordance with article 70 of the Migration Act, all migrants have the right to
receive legal assistance from and be represented legally by a person of their choosing
during the administrative procedure. Migrants have the right to due process, which means
that the procedure must be conducted by the competent authorities, that they have the right
to submit evidence and plead their case, to have access to the records in their migration file
and to benefit from the services of a translator or interpreter to facilitate communication,
and that all decisions made by the authorities must be duly substantiated and reasoned.
117.
The migration procedures initiated in respect of Mr. Boyazhyan and Mr. Ferman
Cruz were conducted by the National Institute of Migration, which is the authority
responsible for the presentation and holding of persons who are unable to prove that they
are in the country lawfully.
118.
From the moment they were taken into the custody of the National Institute of
Migration, Mr. Boyazhyan and Mr. Ferman Cruz were able to appoint defence lawyers,
who, in both cases, filed for remedies on their behalf and submitted the evidence they saw
fit to present.
119.
Mr. Boyazhyan benefited from the services of translators, although it should be
noted that he speaks and understands Spanish.
120.
Accordingly, contrary to the source’s allegations, the Government claims that the
detention of Mr. Ferman Cruz and Mr. Boyazhyan does not fall under category III, since
they had access to a fair trial.
The detention was not ordered in response to an application for asylum or refugee status or
on the basis of the complaints’ status as immigrants
121.
The Government recalls that the presentation and holding of Mr. Ferman Cruz and
Mr. Boyazhyan were carried out following immigration checks conducted by the National
Institute of Migration. Such checks are carried out in order to verify whether migrants have
the necessary documents to prove that their migration status is regular. When the officials
of the National Institute of Migration became aware that Mr. Ferman Cruz and Mr.
Boyazhyan did not have the necessary documentation, they took them into custody.
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122.
The presentation and holding of Mr. Ferman Cruz and Mr. Boyazhyan were
prolonged because their presence was required for the purposes of subsequent procedures,
namely the refugee status application procedure and statelessness determination procedure.
123.
In the light of the above, the Government maintains that while the presentation and
holding of Mr. Ferman Cruz and Mr. Boyazhyan were ordered in the context of
proceedings relating to their migration status, they were maintained for the legitimate aim
of verifying the two men’s identities and ensuring that they were present for the procedures
initiated after they were taken into custody, for which reason their detention does not fall
under category IV.
The presentation and holding of the migrants did not constitute a violation of international
law on the grounds of discrimination
124.
The Government indicates that, contrary to the source’s allegations, Instruction
INM/DGCVM/0014/2016 does not establish a special regime of a general and impersonal
nature and does not provide for discriminatory categorization. In fact, it instructs the
National Institute of Migration to transfer all migrants who request refugee status to the
migrant holding centre in Mexico City so that their applications can be processed and
resolved expeditiously.
125.
Mr. Ferman Cruz petitioned for amparo against the above-mentioned instruction,
but the Fifth District Administrative Court of Mexico City dismissed the case on 30 May
2018 on the grounds that the allegations presented were unfounded.
126.
The Government reiterates that on 26 January 2016 the National Institute of
Migration issued Decision VARANA 5359, authorizing Mr. Ferman Cruz’s release from
the migrant holding centre while his application for refugee status was under review, but
that Mr. Ferman Cruz refused to leave the centre.
127.
The presentation and holding of Mr. Ferman Cruz and Mr. Boyazhyan were carried
out in accordance with the law, with the legitimate aim of verifying the men’s identities and
ensuring that they were present for the purposes of subsequent procedures. Consequently,
these measures do not fall under category V.
Additional comments from the source
128.
The Working Group transmitted the Government’s response to the source on 22
October 2018. The source submitted final comments and observations on 6 November
2018.
129.
The source indicates that deprivation of liberty, referred to as “holding” in the
Migration Act, is mandatory in cases of migrants in an irregular situation. The Inter-
American Commission on Human Rights has stated that the detention of migrants is the
rule rather than the exception in Mexico. The Special Rapporteur on torture has arrived at
the same conclusion. The Committee on the Protection of the Rights of All Migrant
Workers and Members of Their Families has also expressed concern regarding the
conditions in which some migrants are detained.
130.
The Constitution establishes that administrative detention may not exceed 36 hours.
Holding, on the other hand, which is a measure provided for by the law, may last for 15
days and in certain circumstances may be prolonged for up to 60 days or even indefinitely.
131.
The source claims that any suspension of the migration procedure leads to the
prolongation of detention without a maximum time limit or safeguards such as periodic
review.
132.
The source alleges that no individual assessment of the merits of deprivation of
liberty was undertaken prior to its application in either case, and that no evidence has been
adduced to suggest that this measure was exceptional or that no less-harmful alternatives
were available. The source stresses that the Government has invoked reasons of public
order as its sole justification for the decision to order detention.
133.
According to the source, the identity of both migrants was known to the authorities
and was never in question, and identity verification was never given as reason for their
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detention. No assessment was carried out with regard to a possible risk that made detention
necessary in order to “ensure” the presence Mr. Ferman Cruz and Mr. Boyazhyan for the
purposes of the proceedings.
134.
The source alleges that the detention of migrants is carried out without effective
judicial oversight and with no regard for reasonableness, necessity or proportionality.
Contrary to the Government’s assertions, the suitability of detention is not assessed on a
case-by-case basis but rather on the basis of the individual’s migration status.
135.
According to the source, the Government’s reference to the application of judicial
protection procedures is an attempt to prove that the detention was reviewed and was not
arbitrary. However, these review measures were conducted on an exceptional basis and at
the request of a party, and that the necessity and proportionality of detention are not
automatically and regularly reviewed.
136.
The source claims that the judiciary does not ensure the timely and effective
protection of the right to personal liberty. This leads to situations in which a substantive
decision is taken only after release, as well as to the withdrawal of applications for amparo
and the dismissal of proceedings.
137.
In the case of Mr. Ferman Cruz, the source notes that on 26 January 2016 the
National Institute of Migration issued Decision VARANA 5359, granting him a temporary
visitor’s permit with permission to carry out paid work, but that Mr. Ferman Cruz himself
was not notified of this decision. In breach of the rules governing administrative procedure,
the Decision does not include a signature or fingerprint acknowledging receipt. The
temporary visitor’s permit features the sentence, “I wish to continue my proceedings before
the Mexican Commission on Assistance for Refugees in this migrant holding centre”, but it
is unclear who wrote this. This sentence constitutes a waiver of Mr. Ferman Cruz’s rights
and does not comply with the requirements of the governing normative framework, which
requires that all public servants adjoin their name, position and signature to the decisions
they issue and the notices they serve. The identity of the public servant who wrote the note
is unknown. Mr. Ferman Cruz denies having written it or having requested that it be written
for him. Furthermore, the note was not written in the presence of a lawyer, who could have
ensured that Mr. Ferman Cruz was fully aware of its contents.
138.
The source claims that the allegations of torture were not properly investigated. On 8
March 2018, a court decided not to admit consideration of the Istanbul Protocol during the
protection proceedings. Mr. Ferman Cruz’s counsel had planned to make reference to the
Protocol to illustrate how his prolonged detention of almost one year had undermined his
physical and psychological integrity.
139.
In the case of Mr. Boyazhyan, the source reiterates that migration officials entered
his home without a warrant and that there is no record in his case file of any act ordering
that inspection.
140.
The source notes that the order to place Mr. Boyazhyan in the migrant holding
centre was issued on the ground that he had entered Mexico in an irregular manner, when in
truth he had entered the country legally but his authorization to remain had expired. Such
an offence is not covered by article 144 of the Migration Act.
141.
The source claims that the effective exercise of the right to a legal defence and
access to the means with which to exercise that right were obstructed by Mr. Boyazhyan’s
transfer between various migrant holding centres; the authorities’ failure to provide
information regarding the procedure, the reasons for his detention and the actions they had
undertaken; Mr. Boyazhyan’s limited communication with the outside world; and the fact
that Mr. Boyazhyan was denied full access to information regarding his case and his case
file. Mr. Boyazhyan eventually gained access to the records in his case file through the
intervention of the courts. However, his ability to prepare an effective and timely defence
was undermined from the start.
142.
According to the source, the judicial authorities considered it necessary for Mr.
Boyazhyan to have an interpreter; however, whenever the clerk of the court visited Mr.
Boyazhyan, he would ask a migration official, who had neither the requisite qualifications
nor experience, to act as an interpreter. In the source’s view, an agreement establishing that
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Mr. Boyazhyan does not need a translator, even if signed by him, cannot be considered
valid if Mr. Boyazhyan did not benefit from the services of a translator who could explain
the contents of the agreement to him before he was asked to sign it.
143.
The source stresses that the exercise of means of legal defence against the arbitrary
detention and the submission of applications for refugee and stateless status had the effect
of prolonging the detention, with all the attendant effects on the detainee’s physical and
mental health.
Discussion
144.
The Working Group thanks the source and the Government for the information
provided, which allows for a thorough assessment of the facts and allegations in this case.
145.
The Working Group notes that Mr. Ferman Cruz and Mr. Boyazhyan are no longer
in detention but that the details of their respective situations, namely the duration of their
detention, the lack of periodic review, the systematic nature of their detention and the lack
of effective judicial protection, are such that there is still a need to adopt an opinion that
provides clarity for the future, should similar situations arise. Consequently, in accordance
with paragraph 17 (a) of its methods of work, the Working Group decides to proceed with
its consideration of the case.
146.
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.1
147.
The source and the Government do not disagree on the basic facts of the present
case. Mr. Ferman Cruz is a national of El Salvador who, fearing for his life, fled his own
country and arrived in Mexico in September 2015. He was detained on 11 November 2015.
On 26 January 2016, the order was given for his release; however, he remained in
detention. In May 2016, he applied to be released on humanitarian grounds, but his request
was denied. In October 2016, the Mexican Commission on Assistance for Refugees granted
Mr. Ferman Cruz protection, as a result of which he became a lawful resident of Mexico.
He was released on 8 November 2016. Mr. Boyazhyan is from Crimea (Autonomous
Republic of Crimea and the city of Sevastopol, Ukraine, temporarily occupied by the
Russian Federation). He arrived in Mexico in 2013 and was detained in 2016. He was
released on 2 December 2016, after almost nine months of detention, and recognized as
stateless by the National Institute of Migration.
148.
The key issue to be considered in the present case is the regime of administrative
detention applied in respect of migrants.
149.
The source alleges that the Mexican legal framework provides for the mandatory
detention of migrants in an irregular situation. The Government states that the detention in
the present case was conducted in accordance with the procedure of “presentation”, which
is provided for in article 3 (XX) of the Migration Act and is defined as “a measure ordered
by the National Institute of Migration whereby foreign nationals who are unable to
demonstrate their migration status are placed in temporary holding for the purposes of the
regularization of their stay or to facilitate their return”. The source stresses that this
custodial measure may be, and in this case was, prolonged for more than 15 days or
indefinitely.
150.
The Working Group recalls that migrants should not be subject to automatic and
mandatory detention, and that any deprivation of liberty exceptionally imposed must be
limited in time and should not be unnecessarily prolonged. In addition, the detention of
migrants should be subject to periodic review and appropriate judicial oversight.2 In the
present case, the way in which the two migrants concerned were detained demonstrates that
alternatives to deprivation of liberty were not given due consideration and, therefore, that
1 A/HRC/19/57, para. 68.
2 A/HRC/39/45, annex: Revised deliberation No. 5 on deprivation of liberty of migrants.
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their detention was imposed on a mandatory basis. The authorities did not even take into
account the family situation of Mr. Boyazhyan, whose partner was pregnant and gave birth
to their child while he was in detention. The facts reveal a failure to respect the basic
principles that should govern the detention of migrants.
151.
The source also claims that the detainees were not permitted access to effective legal
assistance during the proceedings. Moreover, in both cases, the detainees’ applications for
the remedy of amparo not only led to the prolongation of their detention but also to
reprisals by migration officials, which were sufficiently serious as to force the withdrawal
of some of the appeals lodged. This demonstrates that the legal procedures initiated were
ineffective in ensuring judicial safeguards, which had a negative impact on the substantive
procedure and on its perceived impartiality.
152.
The Working Group considers that the above issues support the source’s claims
regarding the right to seek asylum.3
153.
The Working Group therefore concludes that the deprivation of liberty of Mr.
Ferman Cruz and Mr. Boyazhyan was arbitrary under category IV.
154.
Furthermore, the Working Group notes with concern that an order was given for the
release of Mr. Ferman Cruz but was not carried out, despite the order being a document
with legal force intended to protect Mr. Ferman Cruz’s personal liberty. It is difficult to
believe that Mr. Ferman Cruz would have decided to remain in detention at the migrant
holding centre when he had filed several judicial and administrative appeals seeking his
release. Consequently, the continued detention of Mr. Ferman Cruz in spite of the release
order was illegal, since it was devoid of any legal basis. The detention of Mr. Ferman Cruz
following the issuance of the release order was therefore arbitrary and falls under category
I.
155.
The Working Group considers that Mr. Ferman Cruz and Mr. Boyazhyan were
detained solely on the grounds of their migration status and their having submitted requests
for protection in accordance with the law. The actions of Mr. Ferman Cruz and Mr.
Boyazhyan constituted attempts to avail themselves of their rights, such as the right to seek
asylum, which is enshrined in article 14 of the Universal Declaration of Human Rights. The
Working Group has consistently affirmed that seeking asylum is not an offence and that no
one may be deprived of liberty for the sole reason that they are seeking asylum. 4 In
addition, Mr. Ferman Cruz’s and Mr. Boyazhyan’s personal liberty was restricted even
further when they sought, through the amparo procedure, the equal protection of the law to
which they have a right under articles 7 and 8 of the Universal Declaration of Human
Rights and article 26 of the Covenant. Accordingly, the Working Group finds that the
prolonged detention of Mr. Ferman Cruz and Mr. Boyazhyan, which was motivated by their
migration status and their exercise of the right to seek international protection and the equal
protection of the law, was arbitrary under category II.
156.
The alleged violations in the present case could also fall under category V, since
both migrants were victims of structural discrimination on the basis of their status as
foreign nationals and their personal backgrounds. However, in view of the fact that this
information has already been assessed in relation to the findings under categories II and IV,
the Working Group considers that it is not in a position to reach any further conclusions on
this matter.
157.
The Working Group recalls that torture and cruel and inhuman treatment are
prohibited under international law in all settings, whether in the context of the criminal
justice system or elsewhere. Moreover, it is an established peremptory norm of
international law that no one may be returned to a country where he or she would be at risk
of suffering serious and irreparable harm. In the present case, it is concerning that during
the course of the migration procedure the National Institute of Migration decided to deport
3 See opinion No. 72/2017, para. 65.
4 See A/HRC/39/45, annex: Revised deliberation No. 5 on deprivation of liberty of migrants, paras. 9–
11; opinions Nos. 1/2019, paras. 71 and 73, and 2/2019, paras. 80 and 92.
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Mr. Boyazhyan without due regard for the principle of non-refoulement. It is equally
worrying that Mr. Ferman Cruz was threatened with deportation by migration officials.
158.
The Working Group is concerned at the allegations that Mr. Ferman Cruz and Mr.
Boyazhyan were subjected to torture and ill-treatment. It is also concerned at information
suggesting that the competent authorities, which are required to offer real protection
pursuant to article 8 of the Universal Declaration of Human Rights, failed to provide
effective judicial protection with regard to the allegations of torture and ill-treatment. The
Working Group cannot understand how the remedy of amparo, which is intended to be an
expeditious means of protecting fundamental rights, could have resulted in the prolongation
of the detention of Mr. Ferman Cruz and Mr. Boyazhyan, leaving them in an even more
vulnerable position and allowing for the possibility of further violations of their
fundamental rights. 5 The Working Group has decided to refer the present case to the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment.
159.
Lastly, the Working Group is concerned about the allegations that the state of Mr.
Ferman Cruz’s and Mr. Boyazhyan’s health deteriorated while they were in the custody of
the State authorities. It has therefore decided to refer the present case to the Special
Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of
physical and mental health and the Special Rapporteur on the human rights of migrants.
Disposition
160.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Mr. Ferman Cruz, being in contravention of articles 7,
8, 9 and 14 of the Universal Declaration of Human Rights and of articles 9 and 26 of
the International Covenant on Civil and Political Rights, was arbitrary and falls
within categories I, II and IV.
The deprivation of liberty of Mr. Boyazhyan, being in contravention of articles 7, 8,
9 and 14 of the Universal Declaration of Human Rights and of articles 9 and 26 of
the International Covenant on Civil and Political Rights, was arbitrary and falls
within categories II and IV.
161.
The Working Group requests the Government of Mexico to take the necessary steps
to remedy the situation of Mr. Ferman Cruz and Mr. Boyazhyan 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.
162.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to accord Mr. Ferman Cruz and Mr. Boyazhyan an
enforceable right to compensation and other reparations, in accordance with international
law.
163.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Ferman Cruz and Mr. Boyazhyan and to take appropriate measures against those
responsible for the violation of their rights.
164.
In accordance with paragraph 33 (a) of its methods of work, the Working Group
refers the present case to the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment, the Special Rapporteur on the right of everyone to the
enjoyment of the highest attainable standard of physical and mental health and the Special
Rapporteur on the human rights of migrants, for appropriate action.
165.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
5 See opinion No. 32/2019.
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Follow-up procedure
166.
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 compensation or other reparations have been made to Mr. Ferman
Cruz and Mr. Boyazhyan;
(b)
Whether an investigation has been conducted into the violation of Mr.
Ferman Cruz’s and Mr. Boyazhyan’s rights and, if so, the outcome of the investigation;
(c)
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;
(d)
Whether any other action has been taken to implement the present opinion.
167.
The Government is invited to inform the Working Group of any difficulties it may
have encountered in implementing the recommendations made in the present opinion and
whether further technical assistance is required, for example through a visit by the Working
Group.
168.
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.
169.
The Working Group recalls that the Human Rights Council has encouraged all
States to cooperate with the Working Group and has requested them to take account of its
views and, where necessary, to take appropriate steps to remedy the situation of persons
arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have
taken.6
[Adopted on 16 August 2019]
6 See Human Rights Council resolution 42/22, para. 3.