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

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its eighty-seventh session, 27 April–1 May 2020

Opinion No. 24/2020 concerning Mónica Esparza Castro and Édgar

Menchaca Castro (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 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 7 January 2020 the

Working Group transmitted to the Government of Mexico a communication concerning

Mónica Esparza Castro and Édgar Menchaca Castro. The Government replied to the

communication on 9 March 2020. 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,

* 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/2020/24

General Assembly

Distr.: General

25 June 2020

English

Original: Spanish

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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.

Mónica Esparza Castro, a Mexican national, was born in 1986; she lives in Torreón.

At the time of her arrest, she was working in the commercial sector. She is a person of limited

financial means and has four children. Her brother, Édgar Menchaca Castro, also a Mexican

national, was born in 1992; he too lives in Torreón. Mr. Menchaca was not employed at the

time of his arrest.

5.

According to the information received, Ms. Esparza and Mr. Menchaca were arrested

in Torreón on 12 February 2013, at approximately 10 a.m., as they were travelling in a van

with Ms. Esparza’s husband,1 who was also arrested. They were driving along Revolución

Boulevard when a municipal police car motioned for them to stop, made them get out of the

vehicle and asked them for identification.

6.

Mr. Menchaca and Ms. Esparza’s husband were searched and ordered to get into the

back seat of the police car. An officer told Ms. Esparza that it was a routine matter, that

perhaps there had been a mistake, but that they had to take her husband and her brother into

custody to question them. He informed her that, if she wished, she could come with them in

order to assure herself that the arrest was legal. Ms. Esparza decided to go with them. The

police did not explain at that time that she too was being arrested. They were taken to the

Public Security Directorate of Torreón. One of the officers drove off in the van that they had

been travelling in; they were never able to recover it.

7.

The source indicates that, also on 12 February 2013, at approximately 4.30 p.m.,

relatives of Ms. Esparza filed an application for indirect amparo relating to deprivation of

liberty and incommunicado detention, in which they submitted that the detainees had been

arrested unlawfully.

8.

According to the source, Mr. Menchaca, Ms. Esparza and Ms. Esparza’s husband were

interrogated and tortured for some 14 hours in a warehouse on the premises of the Public

Security Directorate by officers working there and in the presence of soldiers. When Ms.

Esparza’s husband said that he did not know the answers to their questions, the officers would

push Ms. Esparza’s head into a bucket of water until she began to drown. They put plastic

bags over all three persons’ heads to suffocate them. They struck Ms. Esparza with a wooden

board; they pulled her hair back and dragged her by her hair along the floor; and they punched

her and beat her with a metal object. All the while, they asked the two other detainees if that

was what they wanted for her. They struck the two men in the back and in the chest and told

Ms. Esparza that they would cut her up into pieces. They beat Mr. Menchaca using rifles and

a wooden board, nearly everywhere on his body; they kicked him in the genitals and used

tongs to pinch parts of his body.

9.

The source reports that, subsequently, Ms. Esparza was raped by multiple officers, in

front of her husband and her brother, and was subjected to other types of sexual abuse, the

details of which are known to the Working Group.

10.

According to the information received, the officers forced Ms. Esparza to watch while

they sexually abused her husband. As a result of the torture, Mr. Menchaca finally said that

he accepted the charges of the police officers, although he did not understand what they

involved.

11.

The source reports that, subsequently, the officers led the three individuals out of the

warehouse; Ms. Esparza was bleeding and her husband was unable to stand or walk. They

were kept inside a vehicle for a long period of time before being taken back to the Public

Security Directorate, where they were left locked up in a bathroom.

12.

Later, a federal court clerk arrived. He said that the detainees’ family had filed an

application for amparo to challenge the incommunicado detention and that he therefore had

to confirm the identity of the detainees; he left after obtaining their signatures. The records

1 The name of Ms. Esparza’s husband is known to the Working Group.

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of this visit prove that the victims were in fact being held in custody at 8.25 p.m. on 12

February 2013, in the bathrooms of the Public Security Directorate, and that they were visibly

injured.

13.

According to the source, after a time, the police came and took the detainees to the

Attorney General’s Office in Torreón; they arrived there at approximately 1 a.m. on 13

February. This was confirmed as part of the amparo proceedings initiated. The court clerk

verified, at 1.25 a.m. on 13 February, that the detainees had been transferred to the parking

lot of the Attorney General’s Office in Torreón and that they were injured.

14.

The source indicates that the detainees were kept in the parking lot, where they were

again subjected to threats, in order to make them confess their guilt, and where they were

again administered electric shocks. The source states that, at this point, Ms. Esparza’s

husband fainted inside the van, as a result of the torture he had endured. Ms. Esparza watched

him die and shouted to get the attention of the officers, who continued to give electric shocks

to her husband’s motionless body. A physician later arrived on the scene and declared Ms.

Esparza’s husband dead. They put his body in another patrol car and drove away; Ms. Esparza

never saw him again.

15.

The source reports that, before dawn, Ms. Esparza and Mr. Menchaca were taken to

Mexico City, to the Office of the Assistant Attorney General for the Investigation of

Organized Crime. There, Mr. Menchaca signed a statement without having read it. Having

already been tortured and made to confess that he belonged to organized crime and that he

had kidnapped and killed people, he was told that, if he did not sign, his family would be

killed and he would be sent to a prison where he would be killed. Because of the injuries he

had suffered as a result of his torture, on 14 February 2013, the Assistant Attorney General’s

Office had Mr. Menchaca transferred to a hospital for treatment.

16.

As for Ms. Esparza, a clerk in the Attorney General’s Office received her and told her

that if she did not sign a document, “a call to the municipal police would be enough for them

to go after your mom and your daughters, they’ll kill them like they killed your husband”.

Ms. Esparza signed without reading the document before her and then she fainted. When she

awoke, she was taken to the hospital, to be treated for her injuries. She had to sleep with bags

of ice on her body to bring down the swelling and was placed in a hyperbaric oxygen chamber.

There are a number of medical certificates attesting to the torture suffered by Ms. Esparza,

including a statement by the National Human Rights Commission.

17.

According to the source, torture was used to extract false confessions, which were

then presented to the Attorney General’s Office as evidence. Ms. Esparza and Mr. Menchaca

subsequently found out about the made-up version of their arrest as presented by the police.

That version indicated that, on 12 February, at 7.15 p.m., the police had been patrolling

another area of Torreón when they saw an armed man entering a house and followed him;

upon entering the house, they discovered several armed individuals carrying out a kidnapping.

Allegedly, the individuals in question had surrendered and had confessed to being members

of organized crime.

18.

It is reported that, during the first days of detention, the Attorney General’s Office

tampered with some of the evidence, including that related to the “police line-ups”. The

public prosecutor had shown the kidnapping victims photographs of Ms. Esparza and Mr.

Menchaca for identification purposes. One stated that she did not recognize the people in the

photographs. The second allegedly stated that she recognized the voice of Ms. Esparza, but

the situation was not designed for voice recognition. The third allegedly stated that she

recognized Ms. Esparza, but did not associate her with the kidnapping. None of them said

that they recognized Mr. Menchaca. These alleged victims never appeared in court as part of

the criminal proceedings, nor did they sign their statements, so that it was impossible to verify

them. Despite the fact that the evidence was unlawful, it was nevertheless supported by the

authorities in ordering the detention.

19.

On 15 February 2013, the Second Federal Criminal Court Having Special Jurisdiction

in Matters Relating to Searches, Preventive Custody and Interception of Communications

ordered that the detainees should be held in precautionary detention without charge (arraigo)

for 40 days, a period which was extended by a further 40 days on 23 March 2013. They were

held at the Mexico City Detention Centre.

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20.

On 4 May 2013, the First District Court of Laguna issued a warrant for the arrest of

Ms. Esparza and Mr. Menchaca, in relation to criminal case No. 24/2013. Mr. Menchaca was

sent to Federal Social Rehabilitation Centre No. 8 West, in Jalisco. Ms. Esparza was admitted

to Federal Social Rehabilitation Centre No. 2, in Nayarit.

21.

According to the source, on 17 May 2013, the Second District Court for Federal

Criminal Proceedings in Nayarit issued a detention order in respect of Ms. Esparza. It ordered

pretrial custody on the basis of the offences alleged to have been committed, as the

Constitution requires judges to apply it regardless of the individual circumstances of a case.

The Court did not exclude the unlawful evidence, which had been obtained through torture,

and disregarded the existence of medical certificates. Instead, it decided that the latter had

been raised as a defence and did not give it consideration.

22.

Ms. Esparza’s defence appealed this decision and, on 18 July 2013, the First Single-

Judge Court of the Eighth Circuit modified the contested order of detention, but allowed the

criminal proceedings to continue.

23.

With regard to Ms. Esparza’s statement on how the arrest and torture had occurred,

the judge indicated that it should not be taken into account, as the torture reported had

occurred in Torreón, and the allegedly fabricated statement had been given hours later in

Mexico City and was signed by a public defender. The source indicates that this is the

document that Ms. Esparza signed without reading, after undergoing torture and while under

threat. The judge invoked the theory of “procedural immediacy”, according to which the first

statement prevails over any subsequent statement or retraction. He claimed that the remaining

evidence was sufficient to support the order of detention.

24.

Also on 17 May 2013, the Fifth District Court for Federal Criminal Proceedings in

Jalisco issued a detention order in respect of Mr. Menchaca, in criminal case No. 24/2013.

He ordered Mr. Menchaca to be held in custody during the trial. Mr. Menchaca appealed this

decision. However, the higher court upheld the order.

25.

On 6 March 2015, Mr. Menchaca was transferred to Federal Social Rehabilitation

Centre No. 14, in Durango. On 15 December 2015, Ms. Esparza was transferred to Federal

Social Rehabilitation Centre No. 16, in Morelos.

26.

Six years later, criminal proceedings are ongoing; the Federal Prosecution Service has

submitted extemporaneous evidence which, since it was not admitted, has led to appeals.

27.

It is reported that Ms. Esparza and Mr. Menchaca are being held in pretrial detention,

awaiting the first-instance judgment; this judgment has not been handed down owing to the

allegedly irregular proceedings of the Federal Prosecution Service, consisting of late

submission of evidence and the filing of appeals.

28.

The source argues that the police made the arrest without a warrant and that the

detainees were not in the process of committing a crime. The only cases in which the

Constitution allows for deprivation of liberty are: (a) with a court order; (b) with an order

from the prosecution authorities; or (c) in flagrante delicto. None of these conditions were

satisfied at the time of arrest. Later, the police officers related a false version of events,

claiming that the arrests were made in flagrante delicto. However, this version is contradicted

by the statements of three eyewitnesses to the arrest. In addition, the medical examinations

and the hospitalization order, which corroborate the acts of torture, prove the veracity of the

version of events as narrated by the detainees.

29.

According to the source, after the arrest, the police officers held the detainees in their

facilities for 14 hours. However, the Constitution requires that persons arrested be presented

“without delay” to the public prosecution service. The detention at the Public Security

Directorate of Torreón was illegal. This was the conclusion of the National Human Rights

Commission, as set out in recommendation No. 15/2016, even if 7.15 p.m. (the time noted in

the police report) is taken to be the time the arrest began.

30.

The detainees were handed over to the Federal Prosecution Service of the branch of

the Attorney General’s Office in Coahuila, Torreón. It is claimed that, because of the

conditions in which they arrived and the death of one of the detainees, it was more than

obvious that they had been tortured. However, this fact did not lead the public prosecutor to

question the version of the police officers, or to declare the arrest arbitrary. Even so, the

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prosecutor noted the prolonged period of time during which the victims had been held.

Despite all of the above, he took custody of them and transferred them to Mexico City.

31.

The source points out that, after being taken to the Office of the Assistant Attorney

General for the Investigation of Organized Crime, Ms. Esparza and Mr. Menchaca were held

in precautionary detention (arraigo) for 80 days. Arraigo is a form of pretrial detention in

which a person can be deprived of his or her liberty without being charged. In this case, the

measure was ordered on the basis of a version of events that was allegedly fabricated and

based on unlawful evidence, such as statements signed under torture. Besides these

irregularities, it is argued that the concept of arraigo is in itself a violation of human rights,

as it allows for prolonged detention without the bringing of criminal charges.

32.

The source adds that, after the arrest warrant was issued, the detention was based on

alleged involvement in the offences that gave rise to the charges brought by the Attorney

General’s Office, relying on the same unlawful and false evidence and the implausible

version given by the police. The source argues that, for these reasons, there was no legal basis

for deprivation of liberty.

33.

The source highlights, in particular, the fact that the confessions obtained under torture

and other unlawful evidence were not excluded, and that judicial decisions were thus made

in violation of international human rights law. The Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment has stated that:

international law stipulates that, once a credible allegation of torture or ill-treatment has

been made, the State must prove that the torture or ill-treatment did not occur and judges

must order the immediate exclusion of the evidence.2

The judicial authorities should:

automatically ... exclude any evidence or statement concerning which there is reason to

believe that it was obtained as a result of torture or ill-treatment or in violation of

fundamental guarantees and to ... impose on the State the burden of proving that the

evidence was not obtained under torture and guarantee that unlawful evidence is excluded

from the outset and that its exclusion is not postponed until sentencing.3

The Committee against Torture has expressed a similar view.4 In 2010, the Inter-American

Court of Human Rights recalled, in a case involving Mexico, that:

whenever a person alleges, within a proceeding, that his or her statement or confession

was obtained under duress ... the burden of proof cannot rest with the plaintiff.5

In the source’s view, the present case is a contradiction of international standards, since the

judicial authorities did not admit incidental pleas in order to determine whether evidence

should be excluded.

34.

The source notes that Ms. Esparza and Mr. Menchaca have been in mandatory pretrial

detention for more than six years, and there has been no assessment of their particular

situation. Such a situation is in itself a violation of international human rights law.

35.

In the source’s view, Ms. Esparza and Mr. Menchaca are being held without any

reason or legal basis; their deprivation of liberty violates international law; and there is no

evidence of their involvement in any crime. There is, however, evidence of irregularities in

their arrest.

36.

Category I: the source alleges that there is no basis for the deprivation of liberty under

national law. The source claims that the Constitution allows for detention in only three cases:

with a court order; with an order from the prosecution authorities (“urgent case”); or in

flagrante delicto. None of these conditions were satisfied at the time of arrest.

37.

Category III: the source argues that, in the arrest, detention and criminal trial, the State

failed to comply with articles 9 and 14 of the Covenant, since Ms. Esparza and Mr. Menchaca

were not arrested on such grounds and in accordance with such procedure as are established

2 A/HRC/28/68/Add.3, para. 56.

3 Ibid., para. 83 (d).

4 CAT/C/LKA/CO/3-4, para. 11, and CAT/C/PHL/CO/2, para. 23.

5 Cabrera García and Montiel Flores v. Mexico, Judgment of 26 November 2010, Preliminary

Objection, Merits, Reparations and Costs, para. 136, Series C No. 220.

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by law. They were not informed, at the time of arrest, of the reasons for their arrest. They

became aware of some of the charges that would later be brought against them only when

they were forced, under torture, to sign statements in which they confessed to being part of

organized crime.

38.

In addition, Ms. Esparza and Mr. Menchaca were not brought promptly before the

competent authority, but were held in police facilities and tortured for approximately 14 hours.

Pretrial detention was ordered, as the judicial authorities had no alternative, such a measure

being mandatory for the offences alleged to have been committed.

39.

In the source’s view, the judicial decisions taken demonstrate that the authorities did

not give Ms. Esparza and Mr. Menchaca a fair hearing, particularly in the light of the

allegations that they had been tortured. The judicial authorities have failed to examine this

matter in accordance with international standards. Statements fabricated and/or obtained

under torture have been admitted and assessed by the judicial authorities, whereas they should

have been excluded.

40.

Furthermore, the source alleges that the Government violated articles 7 and 10 of the

Covenant on the basis of the torture inflicted on Ms. Esparza and Mr. Menchaca.

41.

Category V: Lastly, the source indicates that, in general, people with limited financial

resources are at particular risk of suffering arbitrary detention in Mexico. Ms. Esparza and

Mr. Menchaca are among that vulnerable group of people. The source does not claim that, in

this case, such was the reason for the arbitrary arrest, but claims that, after systematic

documentation and continuous monitoring of cases such as this one, it has been observed that

there is a pattern of arrest, prolonged detention, torture and fabrication of charges in an

overwhelming majority of cases of persons with limited financial resources.

Response from the Government

42.

On 7 January 2020, the Working Group transmitted the allegations of the source to

the Government and requested it to provide, by 9 March 2020, detailed information on the

case which would clarify the legal and factual grounds for the detention in question. The

Government replied to the communication on 9 March 2020.

(a)

Report No. 0185/13

43.

The federal prosecutor attached to the Special Unit for the Investigation of Assault

and Vehicle Theft of the Office of the Assistant Attorney General for the Investigation of

Organized Crime brought criminal proceedings against Ms. Esparza, Mr. Menchaca and

another person6 for their probable involvement in the offences of organized crime, illegal

deprivation of liberty and violation of the Federal Firearms and Explosives Act.

44.

According to the Government, as per the information provided by the Public Security

Directorate, on 12 February 2013, the police officers were on patrol when, at approximately

7.15 p.m., they observed a man carrying a firearm who, upon noticing the police, entered a

house. They entered the house and ordered the man to put down his weapon and to lie on the

ground. An officer seized him and took away his weapon.

45.

They then saw a woman trying to go back into a room inside the house; two officers

followed her and found two other men. These persons, who were arrested, were Ms. Esparza,

Ms. Esparza’s husband and Mr. Menchaca. Mr. Menchaca was carrying a firearm. In the

same place, they found three people tied up on the floor. They also reported finding firearms

and cartridges.

46.

After the three arrested individuals were transferred to the offices of the Attorney

General, Ms. Esparza’s husband complained of pain and, during his transfer to the hospital,

he died.

47.

The Government reports that an officer met with the detained persons, in the presence

of other officers, and informed them of their rights, as provided for in article 124, article 125,

6 As previously mentioned, the name of this individual is known to the Working Group. However, the

source does not refer in the allegations to this individual, who is hereinafter referred to as “the third

person”.

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read in conjunction with article 127 bis, and article 243 of the Federal Code of Criminal

Procedure.

(b)

Criminal case No. 24/2013

48.

The detainees were referred to the Federal Prosecution Service, which initiated legal

action against them before the First District Court in La Laguna, Coahuila de Zaragoza.

49.

According to the Government, the police brought Ms. Esparza and Mr. Menchaca to

the Federal Prosecution Service at 1.30 a.m. on 13 February 2013. A preliminary

investigation was opened into the charges of organized crime, illegal deprivation of liberty

and violation of the Federal Firearms and Explosives Act.

50.

On the same date, the Federal Prosecution Service issued a detention and notification

decision, in which it determined that these persons had been arrested in flagrante delicto, and

therefore their detention was justified. Their investigation was ordered to be completed

within 48 hours (before 1.30 a.m. on 15 February), and their custody was transferred to the

Ministry of Security. The detainees were also informed of their rights under article 128 of

the Federal Code of Criminal Procedure.

51.

On 13 February, the Federal Prosecution Service attached to the Special Unit for the

Investigation of Assault and Vehicle Theft of the Office of the Assistant Attorney General

for the Investigation of Organized Crime accepted jurisdiction over the matter and initiated

a formal investigation.

52.

The Government indicates that Ms. Esparza gave her statement to the Federal

Prosecution Service, at 9 a.m. on 14 February, and that a federal public defender was assigned

to her. She was informed of the contents of the report of the arrest, so she was aware of the

charges being brought against her.

53.

Ms. Esparza stated that the facts recounted by the police officers who had arrested her

were not correct and she recounted another version. She stated that her husband had been

responsible, as part of a criminal organization, for the Torreón guard. She added that she had

taken the police and soldiers to the place where they were depriving people of their liberty

and to another building where there were weapons and some suitcases.

54.

Mr. Menchaca made his statement to the Federal Prosecution Service at 12.10 p.m.

on 14 February 2013; he was assigned a federal public defender and said that he was satisfied

with the content of the report submitted by the police officers.

55.

Mr. Menchaca said that, on 12 February 2013, he had been in the building where he

was arrested with his sister and his brother-in-law, and said he could not remember any other

details except that, when he arrived at the building in question, his brother-in-law was there

and he noticed two people with their hands tied and their faces covered. He also reported that

he vomited blood from the blows he had received from another member of the criminal

organization.

56.

Mr. Menchaca added that he had been working for a criminal organization for two

years, described how it worked and referred to the people he had dealings with within it. He

said that his sister knew about the group, but had nothing to do with its activities, and that

she worked in a café.

57.

The Government states that the Federal Prosecution Service obtained statements from

the third person and from the three kidnapping victims, as well as medical certificates of any

injuries, and ordered analyses of the objects and weapons seized, among other things.

58.

On 15 February 2013, the federal prosecutor decided that the time limit established in

the Constitution would be doubled to 96 hours, as the persons arrested were involved in

organized crime.

59.

On the same date, the Second Federal Criminal Court ruled that the accused should

be held in precautionary detention, as requested by the Federal Prosecution Service, for 40

days, with a view to carrying out the preliminary investigation of persons involved with a

criminal organization.

60.

On 23 March 2013, the judge extended the detention period, having considered the

evidence presented to him, with a view to completing the preliminary investigation, given

that the crimes under investigation were serious. In addition, the documentary evidence

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indicated that the individuals were alleged members of a criminal organization. It was also

believed that the individuals charged could attempt to evade justice.

61.

On 2 May 2013, the Federal Prosecution Service submitted the results of the

preliminary investigation, together with an application to bring criminal proceedings against

the accused. The Fifth District Court in Coahuila de Zaragoza ruled that a district court in La

Laguna had jurisdiction in the case.

62.

On 3 May, a criminal case was filed with the First District Court in La Laguna. In its

decision of 4 May 2013, the First District Court issued an arrest warrant for probable

involvement in the crimes of kidnapping, stockpiling of firearms and possession of cartridges

for the exclusive use of the Army, Navy and Air Force.

63.

On 16 May 2013, the District Court for Federal Criminal Proceedings in Jalisco issued

a detention order in respect of Mr. Menchaca, for his probable involvement in crimes of

kidnapping, stockpiling of weapons for the exclusive use of the Army, Navy and Air Force

and possession of cartridges for the use of the Army, Navy and Air Force. On 17 May 2013,

it issued a detention order in respect of Ms. Esparza, on the basis of evidence that suggested

probable criminal involvement in the commission of these crimes.

(c)

Investigations into possible acts of torture

64.

On 13 August 2014, Ms. Esparza elaborated on her original statement, adding that,

during her detention, she had received threats and ill-treatment, been harassed and suffered

physical attacks.

65.

By court orders of 10 October 2013 and 9 June 2015, the federal prosecutor was called

to a hearing in respect of the statements regarding torture made in the preliminary statements.

This in turn gave rise to a preliminary investigation by the Prosecutor General’s Office in

Coahuila de Zaragoza, which is currently under way.

66.

By a decision of 14 July 2016, Ms. Esparza’s statement was accepted as having been

taken, as she did not wish to undergo a new medical examination, as proposed by her federal

public defender, given that a medical report had already been issued by the National Human

Rights Commission. On 10 April 2018, it was reported that Mr. Menchaca had not given his

consent to a medical opinion, given that one had already been issued by the National Human

Rights Commission.

67.

According to the Government, an expert opinion issued by an expert attached to the

General Office for the Coordination of Expert Witness Services of the Attorney General’s

Office found that the opinions issued by the National Human Rights Commission did not

fulfil the criteria of the Manual on the Effective Investigation and Documentation of Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) or the

Diagnostic and Statistical Manual of Mental Disorders.

(d)

Preliminary observations

68.

The Government stresses that the internal criminal proceedings have not yet been

concluded. Therefore, allegations of human rights violations may still be considered, not only

at the time of sentencing, but also by means of challenge on the part of the accused, such as

an appeal or petition for amparo.

69.

However, detainees and their criminal defenders have had the opportunity to lodge

various appeals and to file petitions for indirect amparo.

70.

The Government states that the facts could still be analysed as part of the proceedings,

and evidence could be elucidated to examine the detention orders and determine the potential

existence of human rights violations.

71.

The Government argues that, based on the principle of subsidiarity of international

bodies for the protection of human rights, the Working Group is precluded from considering

the case.

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9

(e)

State’s observations on admissibility

72.

According to the Government, the detention of Ms. Esparza and Mr. Menchaca had a

legal basis and did not represent a failure to comply with international standards on the right

to a fair trial.

73.

The Government notes that article 16 of the Constitution stipulates that, in cases where

a person is arrested in flagrante delicto, a judge must immediately authorize the arrest, or else

order the person’s release. According to the Federal Code of Criminal Procedure, an arrest is

made: (a) at the time of the commission of the offence; (b) when the perpetrator is pursued

and caught immediately after having committed the offence; or (c) immediately after having

committed the offence, when the perpetrator is identified by the victim, another eyewitness

or fellow perpetrator, or when objects or evidence are found that give reason to suppose that

the perpetrator was involved in the commission of the crime.

74.

Article 3 of the Federal Code of Criminal Procedure states that the police acts under

the authority of the Federal Prosecution Service in the investigation of crimes and is obliged

to make arrests in cases of flagrante delicto and to refer the persons arrested to the authorities.

75.

On 13 February 2013, the Federal Prosecution Service issued a detention and

notification decision, in which it determined that the accused had been arrested in flagrante

delicto, and that therefore their detention was justified. The investigation was ordered to be

completed within 48 hours, and the custody of the detainees was transferred to the Federal

Prosecution Service.

76.

On 15 February 2013, the Federal Prosecution Service decided that the time limit

established in the Constitution would be doubled to 96 hours, as the persons arrested were

involved in organized crime.

77.

Article 2 of the Federal Code of Criminal Procedure states that if, taking into account

the circumstances, the Prosecution Service deems it necessary to place a suspect in

precautionary detention without charge, it must apply to the court giving reasons and grounds

for its request, so that the court, after hearing the suspect, can decide whether to place him or

her in such detention, under the supervision of the authorities. Precautionary detention can

be extended for the time needed for the investigation, but must not exceed 40 days, a period

which can be extended for a further 40 days.

78.

In order to determine that the precautionary detention was proportional and necessary,

the judge: (a) analysed the formal requirements of the application, and the evidence submitted;

(b) found that the offences were characterized as serious offences by law; (c) noted that there

was a likely link of the suspects to organized crime; (d) considered the fact that the detainees

could have information or provide evidence that could help to prove their probable

involvement in the crimes described, in addition to the fact that, at the time of their arrest,

various war weapons, as well as three victims of a kidnapping, were found within close range

of the detainees; and (e) stated that the assessment of the evidence presented did not prejudge

the substantiation of the crimes and the suspects’ probable involvement in those crimes; the

existence of evidence that justified the need to initiate an investigation was sufficient.

79.

The arrest of Ms. Esparza and Mr. Menchaca was examined by the court, which, after

assessing the evidence, issued a detention order in respect of both individuals.

80.

Organized crime is a serious crime; therefore, precautionary detention without charge

was deemed appropriate, to allow for the completion of the necessary investigations, based

on the principle of necessity and proportionality.

81.

The detention of Ms. Esparza and Mr. Menchaca did not violate the right to non-

discrimination established in international law. Not every differentiation of treatment is

discriminatory, as long as it is reasonable and pursues a legitimate aim.7 Ms. Esparza and Mr.

Menchaca were detained because of the crimes they were suspected of having committed,

not because of their socioeconomic position.

7 Human Rights Committee, general comment No. 18 (1989) on non-discrimination and general

comment No. 21 (1992) on humane treatment of persons deprived of their liberty.

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Additional comments from the source

82.

The source reports that, on 12 March 2020, Ms. Esparza and Mr. Menchaca were

acquitted in a first-instance judgment and were released after more than 7 years of deprivation

of liberty. However, that judgment can be appealed and modified. Moreover, the kidnapping

victims still have the possibility of challenging the ruling by filing a direct amparo

application. Thus, a criminal conviction is still a potential outcome of the proceedings.

83.

The judgment of acquittal concluded that the statements made to the prosecutor

(alleged confessions) by Ms. Esparza and Mr. Menchaca should have been excluded from

the criminal proceedings, as they were unlawful.

84.

The source notes that the Government does not cite any legal basis for its allegation

that criminal proceedings are ongoing and that the Working Group is precluded from

considering the case. The arbitrary deprivation of liberty lasted for more than 7 years, and

the victims have presented to the Government the facts of their detention since 2013. The

remedies available under domestic legislation were neither effective nor efficient.

85.

The source reiterates that the evidence shows that the police officers’ description of

the circumstances of the arrest was untrue. The evidence also makes clear that the statements

given to the prosecutor under torture were fabricated and that the decisions that validated and

prolonged the deprivation of liberty were unlawful. The Government does not address the

incompatibility of precautionary detention without charge and of mandatory pretrial

detention with international law.

86.

In addition, the Government mentions that the Attorney General’s Office issued a

document criticizing the methodology of the medical and psychological opinions of the

National Human Rights Commission. The source submits that this is part of a pattern

consisting in using evidence obtained under torture in criminal proceedings, and of

preventing or discrediting the documentation of torture. The lack of independence of the

experts attached to the Attorney General’s Office is a systemic problem, since such experts

belong to the same institution that uses evidence obtained under torture to bring criminal

charges.

Discussion

87.

The Working Group thanks the source and the Government for their submissions.

88.

First preliminary issue: the Working Group takes note of the release of Ms. Esparza

and Mr. Menchaca on 12 March 2020 and observes that they were held in pretrial detention

for more than 7 years. Under paragraph 17 (a) of its methods of work, the Working Group

may render an opinion notwithstanding the release of the persons concerned. Ms. Esparza

and Mr. Menchaca were allegedly subjected to serious violations of their human rights,

including torture, forced confessions and mandatory pretrial detention. In addition, the first-

instance sentence that resulted in these individuals’ release may be appealed, meaning that

subsequent imprisonment could be imposed. The Working Group therefore considers it

important to render an opinion on the present case.

89.

Second preliminary issue: the Working Group notes the Government’s assertion that

the criminal proceedings have not concluded and that the alleged human rights violations can

be examined through other remedies. The Government maintains that, on the basis of the

principle of subsidiarity, the Working Group is not competent to consider this communication.

The Working Group has stated on previous occasions that there is no provision in its methods

of work which prevents it from examining communications when cases are still before

national courts. The exhaustion of domestic remedies is not set out in the working methods

as a requirement for the communication to be considered admissible.8

90.

In determining whether the detention of Ms. Esparza and Mr. Menchaca was arbitrary,

the Working Group has regard to the principles established in its jurisprudence regarding

how to deal with evidentiary issues. If the source has established a prima facie case for breach

of international law constituting arbitrary detention, the burden of proof should be understood

8 E/CN.4/1993/24; opinions No. 46/2019, No. 78/2018 and No. 44/2018.

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11

to rest upon the Government if it wishes to refute the allegations. Mere assertions that lawful

procedures have been followed are not sufficient to rebut the source’s allegations.9

Category I

91.

The source alleges that there was no legal basis for the arrest of Ms. Esparza and Mr.

Menchaca. According to the source, they were travelling in a van on 12 February 2013, at

approximately 10 a.m., when they were arrested. The source argues that the Constitution

provides only three legal grounds for detention – a court order, an order from the prosecution

authorities or a crime committed in flagrante delicto – and that none of these corresponded

to the case in question. The source states that, at the time, the detainees were not informed of

the reason for their arrest. Ms. Esparza did not even know that she was being arrested, as she

had been informed that it was a routine stop and that she could accompany the officers. Ms.

Esparza and Mr. Menchaca became aware of the charges against them only when they were

subsequently forced to declare that they belonged to a criminal organization.

92.

The Government’s response offers a different version. According to the latter, on 12

February 2013, at approximately 7.15 p.m., the Torreón municipal police were on patrol

when they observed a man entering a house with a firearm. The police followed the man into

the house, where they found that Ms. Esparza and Mr. Menchaca had kidnapped three people.

The Government claims that weapons were also found. Both suspects were taken to the

Prosecutor General’s Office. On 13 February 2013, the Federal Prosecution Service declared

that Ms. Esparza and Mr. Menchaca had been arrested in flagrante delicto.

93.

Having examined both accounts, the Working Group believes that the source has

established a credible case which has not been refuted by the Government. The source has

provided documentation to support the claims made, including an application for amparo

filed on 12 February 2013 at 4.30 p.m., which suggests that Ms. Esparza and Mr. Menchaca

were arrested hours earlier than the Government claims. The amparo describes the

circumstances of the detention, giving details that match those provided by the source. In

addition, the source provided a copy of the visit report prepared by the court clerk in the

context of the amparo proceedings; it was the clerk who located the victims being held in the

bathrooms of the Public Security Directorate on 12 February 2013 at 8.25 p.m. and noted that

Ms. Esparza was visibly injured at that time. The Working Group finds the fact that detainees

were being held in bathrooms as highly irregular, suggesting a lack of transparency and non-

compliance with detention procedures.

94.

According to article 9 (1) of the Covenant, no one may be deprived of liberty except

on such grounds and in accordance with such procedure as are established by law. Article 9

(2) of the Covenant provides that anyone who is arrested should be informed, at the time of

arrest, of the reasons for his or her arrest. There was no legal basis for the arrest of Ms.

Esparza and Mr. Menchaca, since it was made without a warrant and did not concern a crime

committee in flagrante delicto, in violation of article 9 (1) of the Covenant. Nor were they

informed of the reasons for their arrest, in violation of article 9 (2) of the Covenant.10

95.

The source further alleges that the municipal police held Ms. Esparza and Mr.

Menchaca in a warehouse for approximately 14 hours, when the Constitution requires that

they be brought without delay before a judge. In its reply, the Government states that they

were brought to the Federal Prosecution Service at 1.30 a.m. on 13 February 2013. However,

the information received indicates that they were first brought before a court on 15 February

2013, three days after the arrest.

96.

Judicial oversight of detention is a fundamental safeguard of personal liberty11 and is

essential to ensuring that detention has a legal basis. As the Human Rights Committee has

observed, a period of 48 hours is ordinarily sufficient to meet the requirement under article 9

(3) of the Covenant of bringing detainees “promptly” before a judge; any delay must remain

absolutely exceptional and be justified. 12 In this case, although Ms. Esparza and Mr.

Menchaca were referred to the Federal Prosecution Service on 13 February 2013, they were

not brought before a judge within 48 hours of their arrest, which constitutes a violation of

9 A/HRC/19/57, para. 68.

10 Opinions No. 46/2019 and 10/2015.

11 A/HRC/30/37, para. 3.

12 General comment No. 35 (2014) on liberty and security of person.

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article 9 (3) of the Covenant.13 The Government has not put forward any explanation for such

a delay. Furthermore, even if Ms. Esparza and Mr. Menchaca had been brought before a

judge without delay, there was no possibility of examining whether alternatives to detention

would have been appropriate, owing to the order for mandatory pretrial detention. Given the

lack of an individualized determination that the detention was reasonable and necessary, the

Working Group considers that there was no legal basis for it.14

97.

The Working Group considers that the arrest and detention of Ms. Esparza and Mr.

Menchaca had no legal basis and was arbitrary under category I.

98.

In reaching this conclusion, the Working Group has given consideration to the

Government’s assertion that the detention was carried out in accordance with Mexican law

and in a reasonable, proportionate and necessary manner. Nevertheless, even when detention

is carried out in accordance with national legislation, the Working Group must ensure that it

is also compatible with international standards.15

Category III

99.

The source alleges that, following their arrest on 12 February 2013, Ms. Esparza and

Mr. Menchaca were subjected to torture while being held in custody and during their

interrogation by the Torreón police.

100.

According to the source, Ms. Esparza’s head was submerged in water to the point of

drowning, a plastic bag was placed on her head, she was beaten with a wooden board and a

metal object, dragged by her hair and told that she would be mutilated. She was allegedly

sexually assaulted by several officers in front of her husband and brother, and she was given

electric shocks. Ms. Esparza was also forced to watch her husband being sexually assaulted.

Mr. Menchaca allegedly had a plastic bag placed over his head to suffocate him; was beaten

with rifles and a board; was kicked in the genitals; and had parts of his body pinched with

tongs. In addition, he was allegedly forced to watch his sister being physically and sexually

assaulted.

101.

Furthermore, the source states that, on arrival at the Prosecutor General’s Office in

Torreón, Ms. Esparza and Mr. Menchaca were kept waiting in the parking lot for a long

period of time, where they were again subjected to threats and given electric shocks. The

source reports that Ms. Esparza and Mr. Menchaca were hospitalized, owing to the

seriousness of the injuries they had sustained during the torture. In Ms. Esparza’s case, the

injuries were so severe that she had to be placed in a hyperbaric oxygen chamber. The source

provided a medical report from the National Human Rights Commission to support its claims.

102.

The Government notes that the Attorney General’s Office in Coahuila has initiated a

preliminary investigation into the allegations of torture, which is pending. The Government

refers to an opinion issued by an expert attached to the Attorney General’s Office, which

concludes that the forensic examinations of Ms. Esparza and Mr. Menchaca conducted by

the National Human Rights Commission in August 2013 fell short of the requirements of the

Istanbul Protocol. The source argues that this expert was not independent, since he is part of

the same institution that uses evidence obtained under torture in criminal proceedings.16

103.

The Working Group is dismayed by the treatment of the detainees described above

and notes that the Government’s explanation of the non-compliance with the Istanbul

Protocol does not rebut the source’s allegations. The conduct described appears to violate the

absolute prohibition of torture as a peremptory norm of international law, as well as article 5

of the Universal Declaration of Human Rights, article 7 of the Covenant and articles 2 and

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

Punishment.17 The Working Group refers this case to the Special Rapporteur on torture and

other cruel, inhuman or degrading treatment or punishment; the Special Rapporteur on

violence against women, its causes and consequences; and the Special Rapporteur on the

13 Ibid.

14 Opinions No. 1/2018 and No. 64/2019.

15 Opinions No. 1/2018, No. 79/2017 and No. 42/2012.

16 A/HRC/28/68/Add.3, para. 40; CAT/C/MEX/CO/7, para. 26.

17 CAT/C/MEX/CO/7, para. 8; CCPR/C/MEX/CO/6, paras. 30 and 31.

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13

right of everyone to the enjoyment of the highest attainable standard of physical and mental

health.

104.

According to the source, after being tortured, the detainees accepted the charges that

they were members of a criminal group. They were reportedly taken to the Office of the

Assistant Attorney General for the Investigation of Organized Crime in Mexico City, where

they were both subjected to intimidation, including threats that their families would be killed,

before signing confessions that they had not read. In its response, the Government states that

both defendants gave their statements on 14 February 2013 and that they had both been

assigned federal public defenders. The Government notes that it undertook further

investigations, which involved obtaining statements from the three persons who had

allegedly been kidnapped and reports concerning evidence gathered during the arrest.

105.

The Working Group notes that the source’s allegations concerning the forced

confessions have not been refuted by the Government. As indicated previously, other

evidence, including two amparo applications, the reports of the clerk who followed up on

their situation and a medical report from the National Human Rights Commission, supports

these allegations. The burden is on the Government to prove that the statements made by Ms.

Esparza and Mr. Menchaca were given freely,18 but it has not provided such proof. The

Working Group notes that the judicial theory of “procedural immediacy”, which was

reportedly applied in this case, does not meet the standards of a fair trial.19

106.

As a result of having been forced to confess, the right of Ms. Esparza and Mr.

Menchaca to presumption of innocence under article 14 (2) of the Covenant was violated. So

too was their right not to be compelled to confess guilt, under article 14 (3) (g) of the

Covenant. Intentionally inflicting severe pain and suffering, as well as making threats and

putting pressure on a person in order to obtain a confession, violates articles 2, 13, 15 and 16

of the Convention against Torture and makes the proceedings inherently unfair and the

detention arbitrary.

107.

In addition, the source alleges that Ms. Esparza and Mr. Menchaca were not given

guarantees of a fair trial, as confessions extracted under torture were not excluded. When the

detention order was issued against Ms. Esparza, the court considered that the allegations of

torture were raised merely as a defence. Furthermore, when the order was appealed, the judge

stated that the torture could not be taken into account, as the statement had been given hours

after the alleged torture and had been signed by a lawyer.

108.

The Working Group is of the view that the courts in this case should have ordered the

immediate exclusion of the confessions and further investigations into the alleged torture. A

judge’s failure to intervene when allegations of torture are made amounts to a violation of

the right to be tried by an independent and impartial tribunal under article 14 (1) of the

Covenant,20 as well as of the principle of equality of arms. The source has also established a

credible case that the prosecution authorities failed in their duty to question the police’s

version of events, when there were clear indications that the detainees had been tortured.21

The Working Group will refer this case to the Special Rapporteur on the independence of

judges and lawyers.

109.

The source alleges that there were irregularities in the collection of evidence,

including the submission of photos of the accused, pressure on the victims to identify certain

perpetrators and failure to comply with the procedure for voice recognition. These alleged

kidnapping victims never appeared in court as part of the criminal proceedings, nor did they

sign their statements, so that it was impossible to verify them.

110.

The Working Group does not act as a national court or appellate body and does not

assess the sufficiency of the evidence presented at trial.22 The evidentiary irregularities to

which the source refers are a matter for national courts.

18 General comment No. 32 (2007) on the right to equality before courts and tribunals and to a fair trial.

19 A/HRC/28/68/Add.3, para. 56.

20 Opinions No. 53/2018, para. 77, and No. 46/2017, para. 25; A/HRC/28/68/Add.3, para. 56;

CAT/C/MEX/CO/7, paras. 20–21.

21 A/CONF.144/28/Rev.1, Guidelines on the Role of Prosecutors, para. 16.

22 Opinions No. 64/2019, No. 75/2018 and No. 53/2018.

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111.

Furthermore, it is alleged that the deprivation of liberty was carried out in ways that

are contrary to international human rights standards, namely precautionary detention without

charge (arraigo) and mandatory pretrial detention. The source states that precautionary

detention without charge is a form of detention provided for in article 16 of the Constitution,

where a person can be deprived of liberty without criminal charges for 80 days. In addition,

Ms. Esparza and Mr. Menchaca spent more than 7 years in mandatory pretrial detention,

during which no assessment of their specific circumstances was conducted, because their

alleged crimes were among those for which detention is automatically imposed under article

19 of the Constitution. The Government outlines the measures that the court has taken to

impose precautionary detention without charge, noting that it is proportionate and necessary

to allow further investigation.

112.

The Working Group is of the view that the practice of precautionary detention without

charge should be eliminated, as it can lead to prolonged periods of detention, without any

charges having been brought against the suspect, and violates the presumption of innocence.23

Furthermore, the Working Group reiterates its opinion that automatic pretrial detention is in

breach of the human rights obligations of Mexico. The Working Group has carefully

examined this case and concluded that mandatory pretrial detention also violates the

presumption of innocence.24 The Working Group notes that the category of offences requiring

mandatory pretrial detention was broadened in 2019 and urges the Government to repeal the

legal provisions providing for mandatory pretrial detention or to modify them in accordance

with the international obligations of Mexico.

113.

Before their release, Ms. Esparza and Mr. Menchaca had been in custody for more

than 7 years. It is difficult to understand why such prolonged pretrial detention was necessary,

given the Government’s claim that the defendants were arrested in flagrante delicto. The

period of detention was unacceptably long, violating the right to be tried within a reasonable

time and without undue delay under articles 9 (3) and 14 (3) (c) of the Covenant.25

114.

The Working Group concludes that the violations of the right to a fair trial are of such

gravity as to render the detention arbitrary under category III.

Category V

115.

The Constitution distinguishes between accused persons who are allowed alternatives

to pretrial detention and those who are not. Ms. Esparza and Mr. Menchaca were detained

for more than 7 years, as their alleged crimes called for mandatory detention. The

Government argues, with reference to the criteria used by the Human Rights Committee, that

there was no distinction, exclusion, restriction or preference for or against them. They were

arrested for the crimes they had committed and not on discriminatory grounds.

116.

The Working Group is of the view that the constitutional provisions allowing for

mandatory pretrial detention for some offences are discriminatory, in that they draw a

distinction between persons who may apply for alternatives to imprisonment and those who

may not, in a way that does not take into account the equality of human beings.26 The Working

Group found that this discrimination is based on the “other status” of some accused persons,

namely the fact of having been accused of an offence for which alternatives to detention are

not permitted, 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.27 The Working Group

considers that the facts of the present case disclose a violation of category V.

117.

Finally, the Working Group takes note of the source’s submission that persons with

limited financial means are at particular risk of being arbitrarily detained in Mexico. The

Working Group is concerned about this alleged pattern of detentions and refers these

allegations to the Special Rapporteur on extreme poverty and human rights.

23 Opinion No. 67/2011; CCPR/C/MEX/CO/6; CAT/C/MEX/CO/7; A/HRC/28/68/Add.3; A/HRC/40/8.

24 Opinion No. 1/2018.

25 Opinion No. 14/2019.

26 Opinion No. 1/2018.

27 Opinions No. 64/2019, No. 14/2019 and No. 75/2018.

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Final observations

118.

Although Ms. Esparza and Mr. Menchaca have been released, they have not been

granted compensation for their arbitrary detention, in violation of their right to an effective

remedy under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the

Covenant. This is particularly serious given that they were held in pretrial detention for more

than 7 years. The Working Group calls on the Government urgently to provide compensation

and reparation to the victims in this case.

119.

The Working Group expresses its grave concern about the death of Ms. Esparza’s

husband in the custody of the authorities. According to the source, Ms. Esparza’s husband

was unable to stand or walk as a result of 14 hours of torture. Ms. Esparza’s husband died

inside a van and officers allegedly continued to administer electric shocks to his motionless

body. The Government states that Ms. Esparza’s husband was beaten by a private individual

before his arrest, and that he died, after his arrest, while he was being taken to the hospital.

120.

The Working Group is dismayed by the alleged treatment of Ms. Esparza’s husband

and urges the Government to conduct an urgent investigation into the cause of his death and

to return his remains to his family immediately.28 The Working Group has decided to refer

the case to the Special Rapporteur on extrajudicial, summary or arbitrary executions.

121.

This case is one of many that have been submitted to the Working Group in relation

to arbitrary deprivation of liberty in Mexico.29 This pattern indicates a systemic problem

which, if it continues, may amount to a serious violation of international law. Under certain

circumstances, widespread or systematic imprisonment, in violation of the rules of

international law, might constitute crimes against humanity.30

122.

The Working Group would welcome the opportunity to engage constructively with

the Government to address its concerns regarding deprivation of liberty. Given that a

considerable time period has elapsed since its last visit to Mexico, it is an opportune moment

to continue the dialogue with the Government by way of another country visit. As Mexico is

a member of the Human Rights Council, it would also be appropriate for the Government to

reaffirm its standing invitation to all special procedures. Since 2015, the Working Group has

made several requests to visit Mexico and has received assurances that its requests are being

considered. The Working Group urges the Government to consider its requests and hopes to

receive a positive response.

Disposition

123.

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

The deprivation of liberty of Mónica Esparza Castro and Édgar Menchaca Castro,

being in contravention of articles 2, 3, 7, 8, 9, 10 and 11 of the Universal Declaration

of Human Rights and articles 2 (1) and (3), 9, 14 and 26 of the International Covenant

on Civil and Political Rights, is arbitrary and falls within categories I, III and V.

124.

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

to remedy the situation of Ms. Esparza and Mr. Menchaca without delay and bring it into

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

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

125.

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

case, the appropriate remedy would be to accord Ms. Esparza and Mr. Menchaca an

enforceable right to compensation and other reparations, in accordance with international law.

126.

The Working Group draws attention to the interpretative declaration made by Mexico

in relation to article 9 (5) of the Covenant, in which it states that, under its Constitution and

implementing legislation, every individual enjoys the guarantees relating to penal matters

embodied therein and that, if by reason of false accusation or complaint any individual suffers

28 Opinion No. 56/2019; CAT/C/MEX/CO/7.

29 Opinions No. 64/2019, No. 54/2019, No. 14/2019, No. 88/2018, 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.

30 Opinion No. 47/2012.

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an infringement of this basic right, he or she has, inter alia, under the provisions of the

appropriate laws, an enforceable right to just compensation.31

127.

The Working Group urges the Government to ensure a full and independent

investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.

Esparza and Mr. Menchaca, including their allegations of torture and the death of Ms.

Esparza’s husband, and to take appropriate measures against those responsible for the

violation of their rights.

128.

The Working Group requests the Government to harmonize its laws, particularly

articles 16 and 19 of the Constitution, on precautionary detention without charge (arraigo)

and mandatory pretrial detention, with the obligations assumed by Mexico under

international human rights law.

129.

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; the Special Rapporteur on violence against women, its causes and

consequences; the Special Rapporteur on the right of everyone to the enjoyment of the highest

attainable standard of physical and mental health; the Special Rapporteur on the

independence of judges and lawyers; the Special Rapporteur on extreme poverty and human

rights; and the Special Rapporteur on extrajudicial, summary or arbitrary executions.

130.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

131.

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 Ms. Esparza

and Mr. Menchaca;

(b)

Whether an investigation has been conducted into the violation of the rights of

Ms. Esparza and Mr. Menchaca 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.

132.

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.

133.

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.

The Working Group reserves the right to take its own action in follow-up to the opinion. 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.

134.

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.32

[Adopted on 1 May 2020]

31 See Multilateral Treaties Deposited with the Secretary-General, chap. IV.4.

32 See Human Rights Council resolution 42/22, paras. 3 and 7.