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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. 28/2020 concerning Miguel Pérez Cruz (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 12 July 2019 the Working

Group transmitted to the Government of Mexico a communication concerning Miguel Pérez

Cruz. The Government replied to the communication on 10 September 2019. The State is a

party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

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

* In accordance with para. 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/2020/28

General Assembly

Distr.: General

20 July 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.

Miguel Pérez Cruz is a Mexican national from Chiapas. He was born in 1988 and has

worked as a gardener. He is currently being held in the Men’s Detention Centre at the North

Men’s Prison in Mexico City.

5.

Mr. Pérez Cruz was arrested on 6 October 2011 in Colonia Doctores, Mexico City,

close to the premises of the Central Investigation Agency attached to the Office of the Federal

District Attorney General. The source states that the investigative police officers reportedly

did not produce an arrest warrant issued by a judicial authority and that the arrest was not

made in flagrante delicto. The officers, according to the source, did not inform Mr. Pérez

Cruz of the reason for his arrest and used violence when detaining him. They then allegedly

reported to the Prosecution Service that the arrest had been made because Mr. Pérez Cruz

was suspected of the offence of concealing criminal activity by receiving stolen property,

although he was later charged with kidnapping.

6.

The source notes that according to the records in the case file, Mr. Pérez Cruz, having

been arrested, was assigned a court-appointed lawyer at 4 p.m. on 7 October 2011. Before he

had been appointed a lawyer, however, and without a private lawyer, he had been identified

by the alleged victims.

7.

On 7 October 2011, the Prosecution Service issued an order for the urgent detention

of Mr. Pérez Cruz on the basis of article 16 (5) and (21) of the Constitution and articles 266

and 268 of the Code of Criminal Procedure of the Federal District.

8.

Mr. Pérez Cruz was placed in precautionary detention without charge (arraigo) under

the supervision of the Prosecution Service until he was brought before a criminal judge on

22 October 2011. The source claims that an expert report issued by the Federal District

Human Rights Commission, in accordance with the Manual on the Effective Investigation

and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or

Punishment (Istanbul Protocol), found that Mr. Pérez Cruz had been subjected to torture

during the time he was in precautionary detention. According to the source, the report formed

part of a recommendation (No. 14/2014) that was issued by the Commission and accepted by

the Office of the Federal District Attorney General. However, Mr. Pérez Cruz’s legal

situation remained unchanged.

9.

The source reports that during the investigation stage, Mr. Pérez Cruz remained in

precautionary detention without charge and was unable to defend himself. He did not receive

legal advice, and evidence was presented without his having adequate or effective legal

assistance. He was placed in a room with his fellow suspects, without the assistance of a

lawyer, so that they could be seen by persons contacted by the Office of the Federal District

Attorney General, who identified them as the perpetrators of various kidnapping-related

offences. The relevant formalities, as set out in the Code of Criminal Procedure, were not

observed. The source insists that at the investigation stage, Mr. Pérez Cruz did not have the

opportunity to prepare an adequate defence and was not afforded guarantees of due process.

10.

On 24 October, when, according to the source, Mr. Pérez Cruz made his preliminary

statement before the judge, he stated that the alleged confession submitted by the Prosecution

Service had been extracted under torture.

11.

According to the information received, on 14 December 2012 Criminal Court No. 54

of the Federal District found Mr. Pérez Cruz guilty in criminal cases No. 2255/2011 and No.

235/2011. He was sentenced to 105 years’ imprisonment, of which he must serve a minimum

of 70 years under article 33 of the Federal District Criminal Code. In the ruling, the judge

allegedly dismissed the claim that the confession had been extracted under torture, on the

grounds that it had not been proven in certain medical examinations.

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12.

On 13 August 2014, the first instance ruling was upheld on appeal by Criminal Court

No. 7 of the Federal District. According to the source, the appeal judge was of the view that

Mr. Pérez Cruz’s injuries were not consistent with torture and dismissed the allegations.

13.

On 5 December 2018, direct amparo case No. 26/2019 was filed with Collegiate

Criminal Court No. 2 of the First Circuit in Mexico City.

14.

On 14 March 2019, Mr. Pérez Cruz’s petition for direct amparo was admitted. On 9

May 2019, the amparo application was granted, and the Court ordered the reopening of

criminal case No. 448/2018 to make it possible to investigate the torture allegations and

reassess Mr. Pérez Cruz’s legal situation.

15.

According to the information received, on 3 June 2019 Mr. Pérez Cruz filed a direct

amparo appeal on the grounds that, although the federal appeal had been granted, Collegiate

Court No. 2 had not assessed the constitutionality of his detention. The appeal was dismissed

by the Chief Justice of the Supreme Court on 10 June 2019. On 24 June 2019, appeal No.

1535/2019 was filed against the decision.

16.

The source nonetheless claims that neither Criminal Court No. 7 of the Federal

District, which upheld the sentence under appeal, nor Mexico City Criminal Court No. 18,

which heard criminal case No. 448/2018, has established grounds for the conviction of Mr.

Pérez Cruz. To date, the activities related to the criminal case have been limited to gathering

information on the torture allegations and awaiting the decision of the Supreme Court on

appeal No. 1535/2019.

17.

The source alleges that the detention is arbitrary under category III, as international

standards regarding the right to a fair and impartial trial have not been observed. The source

argues that Mr. Pérez Cruz was arrested without an order from a competent authority and that

the arrest did not involve an urgent situation or flagrante delicto. According to the

information provided by the arresting officers, Mr. Pérez Cruz was arrested close to the

premises of the Office of the Federal District Attorney General when he went to inquire about

the legal situation of a detainee. However, on the basis of an alleged accusation made by the

detainee, who was also a victim of torture and who alleges that he was held in arbitrary

detention during the criminal proceedings, the officers arrested Mr. Pérez Cruz without an

order from the competent authority and in circumstances not involving flagrante delicto, a

chase following the commission of an offence or another urgent situation. These are, as the

source states, the only circumstances under which, according to the Constitution, a person

can be arrested without a warrant issued by a competent authority.

Response from the Government

(a)

Procedural background

18.

The Government indicates that an investigation was launched on 6 October 2011 in

connection with 10 similar investigations, after three suspects and one teenager were referred

to the Office of the Prosecutor. The same day, Mexico City police officers placed Mr. Pérez

Cruz at the disposal of the Prosecution Service.

19.

On 7 October 2011, the prosecution authorities ordered the arrest on grounds of

urgency and asked the Court to impose precautionary detention without charge (arraigo)

under article 270 bis of the Code of Criminal Procedure. The Government states that Mr.

Pérez Cruz’s court-appointed lawyer told him that he would be placed in precautionary

detention without charge, to which he responded that he did not object and that he was

innocent.

20.

Criminal Court No. 54 ordered that Mr. Pérez Cruz be placed in precautionary

detention without charge at his home for 15 days, between 7 and 22 October 2011, and that

he not be subjected to torture, humiliation, mistreatment, incommunicado detention or any

act that would harm his dignity or violate constitutional guarantees, especially the right to a

defence. The measure was intended to prevent Mr. Pérez Cruz from evading justice and to

enable the Prosecution Service to continue with the preliminary investigation.

21.

According to the Government, on 18 October 2011 the Prosecution Service brought

criminal proceedings against Mr. Pérez Cruz and three others. On 21 October, an arrest

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warrant was issued, as the judge considered that there were grounds to believe that Mr. Pérez

Cruz had committed the offences in question, namely deprivation of liberty in the form of

express kidnapping for the purposes of robbery, committed on a public thoroughfare, in

concert with others and with the use of violence.

22.

Once Mr. Pérez Cruz had given his preliminary statement on 24 October 2011, with

assistance from his private lawyer, he was informed of his constitutional rights and the facts

of the investigation. A detention order was issued the next day.

23.

The Government indicates that, with assistance from his lawyer, Mr. Pérez Cruz opted

for ordinary rather than summary proceedings. Subsequently, on 23 November 2011, Mr.

Pérez Cruz’s lawyer submitted an evidence brief, which was admitted.

24.

On 9 November 2011, the Prosecution Service requested an arrest warrant for Mr.

Pérez Cruz, which was granted on the grounds that there was reason to believe that he had

committed the offences with which he had been charged. The criminal case began and the

relevant preliminary statement was provided, with assistance from the court-appointed

lawyer, who again informed the detainee of his fundamental rights and of the charges against

him. Mr. Pérez Cruz was also issued with a formal detention order on the same legal basis as

the arrest warrant.

25.

The Government notes that Mr. Pérez Cruz did not challenge his arrest or placement

in precautionary detention, despite the fact that he had the right to appeal and to file for

indirect amparo.

26.

During the proceedings, Mr. Pérez Cruz received legal assistance from the private

lawyers of his choosing. All the closing arguments were upheld at the hearing on 12

November 2012, and the case therefore entered the sentencing phase.

27.

On 14 December 2012, Mexico City Criminal Court No. 54 found Mr. Pérez Cruz

guilty only of the offence of express kidnapping for the purposes of robbery, committed on

a public thoroughfare, in concert with others and with the use of violence. He was sentenced

to 105 years’ imprisonment and given a fine equivalent to 9,000 days’ wages. However,

under article 33 of the Mexico City Criminal Code, the term of imprisonment should be 70

years. If Mr. Pérez Cruz were to prove that he was partially or fully insolvent, the fine, under

article 39 of the Criminal Code, would be replaced with 4,500 days of unpaid community

work.

28.

The Government states that in the same first instance decision, the unconditional

release of Mr. Pérez Cruz was ordered, in relation solely to the charges of express kidnapping

for the purposes of robbery, committed on a public thoroughfare, in concert with others and

with the use of violence, because there was insufficient evidence to prove that he had

committed any such offence.

29.

The Government reports that Mr. Pérez Cruz was not satisfied with this decision and

filed an appeal, which was settled on 13 August 2014 by Criminal Court No. 7 of the Federal

District, as it was known at the time. The second and third operative paragraphs of the

decision were modified, but the sentence was not changed and the other operative paragraphs

were upheld. Mr. Pérez Cruz was still not satisfied with the decisions, and on 6 December

2018 he filed a direct amparo appeal. The appeal was brought before Collegiate Criminal

Court No. 2 of the First Circuit, which on 14 March 2019 admitted it, together with the related

proceedings.

30.

The Government indicates that on 6 May 2019, the Court, as a court of guarantees,

decided to grant amparo and the protection of the federal justice system for the purpose of

requesting the revocation of the trial judge’s ruling and a retrial in which the allegations of

torture were taken into account, so that a diligent and exhaustive investigation could be

carried out in line with the guidelines set out in national and international standards. The

Court also ordered that the evidence necessary to clarify the facts be produced, so that its

validity, in particular with regard to the confession, could be considered in the proceedings

and assessed in the final decision.

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31.

The defence was dissatisfied with the amparo ruling and filed an appeal for review

requesting an analysis of the constitutionality of Mr. Pérez Cruz’s arrest on 6 October 2011.

However, the President of the First Chamber decided to dismiss the appeal.

32.

The Government states that, in compliance with the federal order, on 5 June 2019

Mexico City Criminal Court No. 18 ordered a retrial, within the framework established by

the effects of the amparo ruling. The preliminary stages of the retrial are ongoing, and

confirmation of the expert opinions submitted by Mr. Pérez Cruz’s lawyer is pending.

33.

Lastly, the defence lawyer filed an appeal claiming that the issue of possible arbitrary

detention, which is a constitutional matter, has not been examined. This appeal has not yet

been resolved.

(b)

Investigations into possible acts of torture

34.

The Government indicates that on 5 March 2016, a preliminary investigation was

begun into possible offences of torture committed against Mr. Pérez Cruz. On 5 July 2016,

he gave a statement at Men’s Detention Centre No. 1, in which he detailed the conduct of

agents of the Mexico City Investigative Police Force, which possibly amounted to torture.

35.

Documentary evidence of a medical nature, produced during the time Mr. Pérez Cruz

spent at the Central Investigation Agency on 5 October 2011, was collated and included in

the case file. A list was drawn up of all members of staff of the Investigative Police working

that day, and photographs were taken of each of them.

36.

On 6 December 2017, Mr. Pérez Cruz added to his statement, identifying the probable

perpetrators from among the photographs of the agents who had been on duty on the date in

question.

37.

On 27 February 2019, an attempt was made to conduct an expert

medical/psychological evaluation of possible torture or ill-treatment with experts from the

Centre for Social and Legal Support to Victims of Violent Crime, but Mr. Pérez Cruz refused

to participate.

38.

The Government indicates that the investigation is under way.

(c)

Background

39.

The Government emphasizes that the judicial proceedings in relation to the case of

Mr. Pérez Cruz have not come to an end, as the appeal before the Supreme Court has not yet

been heard. In addition, following the decision in the amparo ruling, the criminal case against

Mr. Pérez Cruz was ordered retried. The ordinary justice system still has an opportunity to

analyse the legal validity and lawfulness of the evidence in order to settle the dispute

involving the defendant, the victim and the Prosecution Service.

40.

The Government stresses that Mr. Pérez Cruz failed to exercise the remedies to which

he was entitled in this case, such as an appeal or an indirect amparo hearing challenging his

placement in precautionary detention without charge and the issuance of the arrest warrant

and detention order. These remedies would have been an opportunity to rectify any possible

violations resulting from the detention.

41.

The Government requests the Working Group not to consider the present case in view

of the general principle of international law requiring exhaustion of domestic remedies before

turning to an international body, a principle which is rooted in the State’s primary duty to

protect human rights and in the complementary nature of international law.

(d)

Mr. Pérez Cruz’s detention was not arbitrary

42.

The Government argues that the detention of Mr. Pérez Cruz was lawful. Under article

21 of the Constitution, the Prosecution Service and the police have the power and the

obligation to investigate any offence that is reported. In accordance with article 262 of the

Mexico City Code of Criminal Procedure, Prosecution Service officials are obliged to

conduct inquiries, ex officio, into ordinary offences that come to their attention.

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43.

Article 268 of the Code states that a case is urgent if it involves a serious offence as

set out in law, if there is a serious risk that the suspected perpetrator might abscond and if the

Prosecution Service cannot apply to the judicial authority owing to the time, place or other

circumstances. In addition, article 270 bis provides for the measure of precautionary

detention without charge during criminal investigation. The article states that if, taking into

account the characteristics of the alleged act and the suspect’s personal 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 strictly

necessary for the proper conduct of the investigation but must not exceed 30 days, which can

be extended for a further 30 days.

44.

At approximately 2.15 a.m. on 6 October 2011, the investigative police, according to

statements they gave, learned that a person named Niver Miguel Pérez Cruz might have been

involved, together with others, in vehicle theft. A person visiting the nearby holding facility

was identified as Niver and followed. The Prosecution Service official and the respective

judicial authorities were informed that when he was asked to identify himself, Mr. Pérez Cruz

had tried to flee. The police officers arrested him on a street near the premises of the

Prosecution Service.

45.

The police officers did not have time to identify or evaluate the exact nature of the

offence. They simply observed that Mr. Pérez Cruz was behaving in a way that objectively

gave rise to a suspicion that he was attempting to conceal the commission of an offence or

abscond, which might make it more difficult to conduct an investigation. They therefore did

not consider any other ways to obtain a statement from him and did not have the opportunity

to request a court order to successfully ensure the clarification of the facts under

investigation.

46.

On 7 October 2011, the prosecution authorities ordered the arrest of Mr. Pérez Cruz

as a matter of urgency. Mr. Pérez Cruz stated that he did not object to being placed in

precautionary detention without charge. After analysing the arguments of the Prosecution

Service and Mr. Pérez Cruz’s acceptance of the measure, the judge issued an order for him

to be placed in precautionary detention without charge at his home for 15 days. On 18 October

2011, the Prosecution Service initiated criminal proceedings. On 21 October, the judge,

finding that there were grounds to believe that Mr. Pérez Cruz had committed the offence of

deprivation of liberty in the form of express kidnapping, issued an arrest warrant.

47.

In so doing, the judge took into account the requirements of article 16 of the

Constitution, namely that: (a) a complaint has been filed; (b) the act in question is legally

defined as an offence; (c) the offence is punishable by imprisonment, at a minimum; and (d)

it has been established that an offence has been committed and there are grounds to believe

that the suspect is responsible. The evidence gathered in the preliminary investigation

established that an offence had been committed and that there were grounds to believe that

Mr. Pérez Cruz was responsible. The Government thus maintains that there was a legal basis

for the detention.

48.

With respect to the proportionality and necessity of the custodial measure, the

Government considers it important to reiterate that Mr. Pérez Cruz’s attempt to flee the

premises of the Prosecution Service led the arresting police officers to believe that he was

attempting to conceal the commission of an offence or evade justice, which might make it

more difficult to conduct an investigation. They therefore did not consider any other ways to

obtain a statement from him and did not have the opportunity to request a court order to

successfully ensure the clarification of the facts under investigation.

49.

In addition, the Government states that the investigation being carried out by the

Central Investigation Agency cannot be overlooked, since it was feasible that accessories or

accomplices had been involved in the vehicle thefts that prompted the investigation. One of

the first individuals detained during the preliminary investigation stated that he had

participated in several violent vehicle thefts in Mexico City and that he had acted with others.

He named one of them as Niver Miguel Pérez Cruz.

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50.

Precautionary detention without charge is provided for in law. It was deemed

necessary by the Prosecution Service in view of the offence and to ensure that the suspect

would not abscond. Furthermore, Mr. Pérez Cruz, advised by his court-appointed lawyer,

agreed to it.

51.

The Government reports that Mr. Pérez Cruz is deprived of his liberty on the basis of

an arrest warrant issued by a competent judge when the period of precautionary detention

without charge ended. The Government states that his detention was reviewed by the courts

without delay.

52.

Mr. Pérez Cruz was arrested by police officers from the Prosecution Service on 6

October 2011. The next day, a competent judge took steps to determine whether it would be

appropriate to place Mr. Pérez Cruz in precautionary detention without charge. Criminal

Court No. 54 then issued an order for Mr. Pérez Cruz to be placed in such detention at his

home for 15 days. The judge specifically ordered that the suspects not be subjected to torture,

humiliation, mistreatment, incommunicado detention or any act that would harm their dignity

or violate constitutional guarantees, especially the right to a defence. The measure was

ordered for the sole purpose of ensuring that they would not abscond and that the preliminary

investigation could be conducted.

53.

On 18 October 2011, before the period of precautionary detention had concluded, the

Prosecution Service brought criminal proceedings for the offence of deprivation of liberty.

On 21 October, the judge issued an arrest warrant. Subsequently, on 24 October 2011, Mr.

Pérez Cruz, assisted by his private lawyer, was informed of his constitutional rights and the

facts under investigation. The next day, a formal detention order was issued.

54.

Mr. Pérez Cruz did not challenge the decision to place him in precautionary detention

without charge, the arrest warrant or the formal detention order, despite having the remedies

of appeal and indirect amparo available to him.

55.

With regard to a fair trial, the Government states that in Mr. Pérez Cruz’s case,

guarantees of due process were respected throughout the proceedings. It is clear that when

he gave his preliminary statement, Mr. Pérez Cruz was informed of the reason for his arrest

and told that he could either appoint defence counsel of his own choosing or have counsel

appointed for him. He was also notified that proceedings had been launched against him and

informed of what that meant, as well as of his right to produce and present evidence for his

defence, to argue in his own defence and to challenge any decision.

56.

The Government indicates that Mr. Pérez Cruz was able to produce and present

evidence, make relevant arguments and challenge the outcome of the case through ordinary

and constitutional channels; thus, his right to due process has not been violated.

57.

With respect to the allegation regarding the identity parade, the Government states

that, contrary to the source’s claim, the applicable legislation did not require the presence of

a lawyer and there was therefore no legal basis for the judges to question the admissibility of

the evidence.

58.

The Government indicates that despite all the domestic remedies available to him, Mr.

Pérez Cruz did not file an indirect amparo application against the decision to place him in

precautionary detention without charge or against the arrest warrant or the formal detention

order, which would have given the Government the opportunity to review his detention at the

domestic level. In addition, the outcome of the appeal is still pending, so the detainee still

has the opportunity to put forward his arguments at the domestic level.

59.

The Government affirms that Mr. Pérez Cruz’s detention is not arbitrary, since he had

access to a fair trial with all the guarantees of due process.

Additional comments from the source

60.

The source emphasizes that the Government has not challenged the claim that Mr.

Pérez Cruz was tortured during his detention. His rights to due process and an adequate

defence have been violated since 6 October 2011 and his right to be presumed innocent was

not respected during the proceedings.

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61.

In recommendation No. 14/2014, the Federal District Human Rights Commission

(now the Mexico City Human Rights Commission) found that Mr. Pérez Cruz’s detention

was arbitrary and illegal (p. 249). Since the recommendation was accepted by the Mexico

City Office of the Attorney General, it is contradictory for the Government to deny the serious

human rights violations identified by the Commission:

The detention of aggrieved party No. 34 (Niver Miguel Pérez Cruz) was illegal

and arbitrary, in that it did not comply with the requirements of law established in

article 16 of the Constitution, given that none of the circumstances set forth in the

article was applicable, namely the existence of a judicial or administrative order,

flagrante delicto or an urgent situation. The information provided by the police

officers shows that they arrested aggrieved party No. 34 because aggrieved party No.

33, who was already in detention, informed them that for a year the two of them had

engaged in vehicle theft. The information also shows that when aggrieved party No.

34 went to the Central Investigation Agency to ask about the legal situation of

aggrieved party No. 33, he was arrested on the assumption that he had committed

vehicle theft and because he attempted to escape. This explanation was intended to

justify the intervention of the investigative police.

It is clear that none of the conditions set out in article 16 of the Constitution

was met. Officials from the Prosecution Service should have first made a case for an

arrest warrant. The agents arrested aggrieved party No. 34 in order to investigate him.

He was not permitted to leave the premises, and no investigation was conducted in

order to request his arrest.

The arrest was not made in accordance with the procedures set out in chapter

II, Rules for Arrests, of the Act Regulating the Use of Force by Public Security Bodies

of the Federal District. When aggrieved party No. 34 was arrested, he was not

informed of the reasons for his arrest or shown an arrest warrant. This body, in its

investigation, found that this arrest was based on a presumption made by the

investigating police officers.

62.

The source reiterates that the arbitrary detention and torture of Mr. Pérez Cruz and his

placement in precautionary detention without charge violate the presumption of innocence.

The sentence of more than 100 years’ imprisonment was handed down on the strength of

evidence obtained in an unlawful process that culminated in a verdict of guilt following

illegal detention that has vitiated the proceedings from the outset. The source claims that the

immediate release of Mr. Pérez Cruz is therefore a priority, alongside comprehensive

reparation for the harm caused by the approximately eight years he has spent in arbitrary

detention.

63.

The source notes not only that Mr. Pérez Cruz was arbitrarily detained on 6 October

2011 but also that his detention enabled the gathering of unlawful and unconstitutional

evidence. That evidence, which should be excluded to ensure that the burden of proof is not

unduly reversed, cannot form the basis for a conviction.

64.

In reply to the Government’s comments relating to the exhaustion of domestic

remedies, the source points out that after approximately eight years of detention, it is clear

that the domestic remedies available have not been effective in ensuring a review of the

detention and its constitutionality. In direct amparo case No. 26/2019, the court with

jurisdiction to review the constitutionality of detention did not review the detention, ruling

instead that the criminal court should decide on the matter, even though review of the

detention of the person requesting amparo and seeking protection from the federal courts is

one of the essential elements of direct amparo.

65.

The source indicates that Mr. Pérez Cruz was not informed of the reasons for his arrest

and that the arrest was violent. The source asserts that after his arrest, which took place at

approximately 2.15 a.m. on 6 October 2011, according to records in the criminal file, Mr.

Pérez Cruz was appointed a public defender at 4 p.m. on 7 October 2011. Before that,

however, an identity parade involving the alleged victims took place without a lawyer present

and without Mr. Pérez Cruz’s being given an opportunity to receive legal assistance.

66.

The arrest, which was made without a warrant from a competent authority, did not

involve flagrante delicto, urgency or a chase following the commission of an offence. It was

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made in the vicinity of the Office of the Federal District Attorney General, when Mr. Pérez

Cruz went to inquire about the legal situation of a detainee, in the company of the detainee’s

family members.

67.

Lastly, the source emphasizes that it is indefensible for the Government to try to

justify the use of evidence gathered in clear violation of human rights – that is, evidence

gathered through reliance on arbitrary detention. The source refers to a set of binding court

precedents regarding the use of such evidence:

(a)

Invalidity of proceedings involving identity parades held without the presence

of legal counsel;1

(b)

Constitutional requirements for the display of photographs during the

procedure to identify persons possibly involved in criminal activity, including in cases of

witnesses;2

(c)

Validity requirements for identity parades in the State of Baja California;3

(d)

Validity requirements for identity parades in the State of Sinaloa;4

(e)

Effects of the unconstitutionality of precautionary detention without charge

ordered by a local judge, exclusion of directly and indirectly related evidence.5

Discussion

68.

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

69.

In determining whether deprivation of liberty of Mr. Pérez Cruz was arbitrary, the

Working Group refers to the principles established in its jurisprudence on 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. Mere assertions by the Government that

lawful procedures have been followed are not sufficient to rebut the source’s allegations.6

70.

The Working Group notes the Government’s assertion that the 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

noted in the past 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.

71.

The Working Group notes, first of all, that the Federal District Human Rights

Commission, in its recommendation No. 14/2014, had already issued conclusions in relation

to this case and that the Federal District prosecution authorities accepted those conclusions.

The Government’s response will be considered alongside the information provided by public

institutions such as the Commission.

1 Edition: tenth; registration No.: 2008371; court: First Chamber; type of precedent: binding; source:

Gaceta del Semanario Judicial de la Federación; book 15, February 2015, vol. II; subject(s):

constitutional, criminal; opinion: 1a./J. 6/2015 (10a.); p. 1253.

2 Edition: tenth; registration No.: 2010424; court: First Chamber; type of precedent: non-binding;

source: Gaceta del Semanario Judicial de la Federación; book 24, November 2015, vol. I; subject(s):

constitutional; opinion: 1a.; CCCLI/2015 (10a.); p. 980.

3 Edition: ninth; registration No.: 167001; court: Collegiate Circuit Courts; type of precedent: non-

binding; source: Gaceta del Semanario Judicial de la Federación; vol. XXX, July 2009; subject(s):

criminal; opinion: XV.5o.11 P; p. 1903.

4 Edition: ninth; registration No.: 19734; court: Collegiate Circuit Courts; type of precedent: non-

binding; source: Gaceta del Semanario Judicial de la Federación; vol. VI, December 1997;

subject(s): criminal; opinion: XII.2o.13 P; p. 657.

5 Edition: tenth; registration No.: 2008403; court: First Chamber; type of precedent: binding; source:

Gaceta del Semanario Judicial de la Federación; book 15, February 2015, vol. II; subject(s):

constitutional, criminal; opinion: 1a./J. 5/2015 (10a.); p. 1225.

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

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72.

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

Pérez Cruz and that his detention falls within category I.

73.

Under article 9 (1) of the Covenant, any arrest or detention must be carried out in

accordance with the legally established procedure7 and on the basis of a legal justification,

which must be invoked.8 In addition, under article 9 (2) of the Covenant,9 at the time of the

arrest the suspect must be informed of the reasons for his or her arrest.

74.

In the present case, Mr. Pérez Cruz was arrested on 6 October 2011 without a police

warrant, and there was no suggestion that his arrest occurred flagrante delicto. The source

also alleged that Mr. Pérez Cruz was not informed of the reasons for his arrest and detention.

The Government did not rebut these allegations. According to the information submitted by

the Government, Mr. Pérez Cruz was arrested on 6 October 2011. The following day, the

prosecutor ordered his detention and requested a judge to place him in precautionary

detention without charge. The Government reported that a judge subsequently ordered the

detention measure, but it did not specify the date on which that order was issued.

Furthermore, the information provided by the Government confirms that it was not until 21

October 2011, 15 days after he was first detained, that a judicial authority issued an arrest

warrant for Mr. Pérez Cruz. The Working Group is therefore not convinced that the arrest

met the requirements of article 9 of the Covenant, namely that the legal basis must be

established before any arrest and subsequent detention and that Mr. Pérez Cruz should have

been duly informed of the reasons for his arrest. The Working Group considers that the arrest

and detention of Mr. Pérez Cruz were carried out in violation of article 9 (1) and (2) of the

Covenant.

75.

The source stated that excessive force was used in the arrest of Mr. Pérez Cruz. In the

absence of a court order or a flagrant offence, the Government did not provide credible

justification as to why it was necessary to use force to arrest Mr. Pérez Cruz, which reinforces

the Working Group’s conclusion that his detention lacks any legal basis. In addition, the

Working Group noted that he was initially arrested on suspicion of concealing criminal

activity but that the charge was later changed to kidnapping, casting further doubt on the legal

certainty required of the officers at the time that they deprived Mr. Pérez Cruz of his liberty.10

76.

The Working Group also notes that the order to place Mr. Pérez Cruz in precautionary

detention without charge was issued by a prosecutor. In other words, the investigating and

prosecuting authorities also had the power, which they exercised, to deprive him of his

liberty; that power entails a conflict of interest detrimental to the rights of the detainee. The

Working Group is of the view that the prosecution and investigative authorities do not have

the independence and impartiality required under the Covenant to decide whether a person

should be deprived of his or her liberty.11 The Government reported that a judge approved

the prosecutor’s decision to place Mr. Pérez Cruz in precautionary detention without charge.

However, it did not state when the approval was granted, what process was followed or what

legal considerations the decision was based on. Furthermore, the source alleged that Mr.

Pérez Cruz, who was arrested on 6 October 2011, was first brought before a judge on 22

October, which means that the detention was not subject to judicial oversight for 16 days.

The Government did not refute this allegation and did not provide any explanation for the

delay. The Working Group considers that judicial oversight of detention is a fundamental

safeguard of personal liberty12 and is essential in ensuring that detention has a legal basis.

The Working Group is of the view that Mr. Pérez Cruz was effectively placed outside the

protection of the law and that his detention was devoid of any legal basis, in violation of

article 9 of the Covenant.

77.

Although detention can be considered to have been carried out in accordance with

national legislation, the Working Group must ensure that it is compatible with international

7 Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para.

11.

8 Opinion No. 66/2017.

9 Opinions No. 10/2015 and No. 7/2020.

10 Opinion No. 39/2015, para. 20.

11 General comment No. 35 (2014), para. 32.

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

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GE.20-09709

11

human rights standards.13 In the present case, the Working Group considers that the arrest

and detention of Mr. Pérez Cruz were carried out in contravention of the minimum

requirements of article 9 of the Covenant and were therefore arbitrary under category I.

78.

The source alleges that the detention of Mr. Pérez Cruz also falls within category III,

due to multiple violations of the guarantees of due process and a fair trial.

79.

The Working Group recalls that all allegations of torture must be thoroughly

investigated. The prohibition of torture is absolute under international law, and torture that

results in a confession jeopardizes the fairness of the criminal trial. This is well established

in the jurisprudence of the Working Group14 and other international human rights bodies.15

80.

In the present case, the judge did not take appropriate action on the allegations of

torture and continued the trial despite the risk of further human rights violations.

Furthermore, the decision did not contain an analysis of the defendant’s allegations.

However, the Federal District Human Rights Commission investigated the allegations, in

application of the Istanbul Protocol, and concluded that the alleged physical abuse was

proved. 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.16 The Working Group considers that the courts in this case should have

ordered the immediate exclusion of Mr. Pérez Cruz’s forcibly extracted confession and the

continuation of the investigations into the alleged torture. The Working Group also considers

that the court’s failure to act is a violation of the defendant’s right to due process, in particular

with regard to the confessions allegedly obtained through torture, which were accepted as

evidence. This violation of article 14 (1) and (3) (g) is of such seriousness as to make the trial

unfair and the detention arbitrary.

81.

In addition, the Working Group notes the source’s allegation that the detention of Mr.

Pérez Cruz was based on the testimony of a co-defendant who claimed to have been tortured

into incriminating Mr. Pérez Cruz. The Government made no attempt to refute this claim or

otherwise address it.

82.

In the light of these serious and credible allegations of torture and the failure of the

judicial authorities to investigate them, and in accordance with its methods of work and

practice, the Working Group decides to refer this case to the Special Rapporteur on torture

and other cruel, inhuman or degrading treatment or punishment and the Special Rapporteur

on the independence of judges and lawyers.

83.

The source also alleges that in the proceedings against Mr. Pérez Cruz, witness

statements were collected during the investigation phase and subsequently included in the

case file without the defence’s being given the opportunity to be present or to question or

cross-examine the witnesses. Furthermore, Mr. Pérez Cruz was denied access to a lawyer

during the initial phase of the investigation, including when he gave his statement. The

Government did not provide any convincing information to refute these allegations. In the

view of the Working Group, the failure to ensure equality of opportunity between the parties

to the proceedings represents a violation of the fundamental principle of equality of arms,

which in this case constitutes a further violation of the procedural guarantees provided for in

article 14 of the Covenant.

84.

Lastly, the Working Group notes that Mr. Pérez Cruz was subjected to precautionary

detention without trial, which is a form of preventive detention in which a person may be

deprived of his or her liberty without having been charged, for the purpose of investigation.

The Working Group considers that precautionary detention without charge (arraigo) allows

for prolonged detention without charge, thereby violating the presumption of innocence, and

13 Opinions No. 1/2018, No. 79/2017, No. 42/2012 and No. 46/2011.

14 Opinions No. 75/2018, No. 53/2018 and No. 55/2015.

15 General comment No. 32 (2007) of the Human Rights Committee on the right to equality before

courts and tribunals and to a fair trial, paras. 41 and 60.

16 Opinion No. 53/2018, para. 77 (b). See also opinion No. 46/2017, para. 25, A/HRC/28/68/Add.3,

para. 56, and CAT/C/MEX/CO/7, paras. 20–21.

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GE.20-09709

should be abolished.17 Furthermore, the fact that Mr. Pérez Cruz was forced to confess his

guilt further reinforces the conclusion that his right to be presumed innocent, as provided for

in article 14 (2) of the Covenant, was violated.

85.

For these reasons, the Working Group concludes that the violations of the right to a

fair trial are of such gravity as to give Mr. Pérez Cruz’s detention an arbitrary character under

category III.

86.

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

years in relation to arbitrary deprivation of liberty in Mexico. 18 The Working Group is

concerned that this may reflect a systemic problem of arbitrary detention in Mexico which,

if it continues, may constitute a serious violation of international law. Under certain

circumstances, widespread or systematic imprisonment or other severe deprivation of liberty

in violation of the rules of international law may constitute crimes against humanity.19

87.

The Working Group would welcome the opportunity to engage constructively with

the Government in addressing its concerns surrounding the arbitrary deprivation of liberty.

As it has been several years since its last visit to Mexico, which took place in November

2002, the Working Group is of the view this would be an appropriate time for it to conduct a

visit to the country. The Working Group notes that the Government extended an open

invitation to all thematic special procedure mandate holders in March 2001. Since Mexico is

currently a member of the Human Rights Council, this would be a suitable time for the

Government to reaffirm its open invitation. Since 2015, the Working Group has made several

requests to visit Mexico and has received assurances from the Government that its requests

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

awaits a positive response.

Disposition

88.

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

The deprivation of liberty of Miguel Pérez Cruz, being in contravention of

articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14

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

categories I and III.

89.

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

to remedy the situation of Mr. Pérez Cruz 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.

90.

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

case, the appropriate remedy would be to release Mr. Pérez Cruz immediately and accord

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

international law. In the context of the current global pandemic caused by the coronavirus

disease (COVID-19) and the threat that the disease poses in places of detention, the Working

Group calls on the Government to take urgent action to ensure the immediate release of Mr.

Pérez Cruz.

91.

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

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

Pérez Cruz and to take appropriate measures against those responsible for the violation of his

rights.

92.

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

17 Opinion No. 67/2011, paras. 31 and 37 (e). See also CCPR/C/MEX/CO/6 paras. 34–35,

CAT/C/MEX/CO/7, paras. 18–19, A/HRC/28/68/Add.3, para. 49, and A/HRC/40/8, para. 132.61.

18 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.

19 Opinion No. 47/2012, para. 22.

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13

treatment or punishment and the Special Rapporteur on the independence of judges and

lawyers, for appropriate action.

93.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

94.

In accordance with paragraph 20 of its methods of work, the Working Group requests

the source and the Government to provide it with information on action taken in follow-up

to the recommendations made in the present opinion, including:

(a)

Whether Mr. Pérez Cruz has been released and, if so, on what date;

(b)

Whether compensation or other reparations have been made to Mr. Pérez Cruz;

(c)

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

Cruz’s rights and, if so, the outcome of the investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Mexico with its international obligations in line with the

present opinion;

(e)

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

95.

The Government is invited to inform the Working Group of any difficulties it may

have encountered in implementing the recommendations made in the present opinion and

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

Group.

96.

The Working Group requests the source and the Government to provide the above-

mentioned information within six months of the date of transmission of the present opinion.

However, the Working Group reserves the right to take its own action in follow-up to the

opinion if new concerns in relation to the case are brought to its attention. Such action would

enable the Working Group to inform the Human Rights Council of progress made in

implementing its recommendations, as well as any failure to take action.

97.

The Working Group 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.20

[Adopted on 1 May 2020]

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