Opinion; Subjects: MEXICO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]
Volltext (verifizierbarer Originaltext)
GE.21-16046 (E) 270122 280122
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-first session, 6–10 September 2021
Opinion No. 35/2021 concerning Juana Alonzo Santizo (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, 1on 22 April 2021 the Working Group
transmitted to the Government of Mexico a communication concerning Juana Alonzo
Santizo. The Government replied to the communication on 22 July 2021. The State is a party
to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2021/35
General Assembly
Distr.: General
4 November 2021
English
Original: Spanish
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Submissions
Communication from the source
4.
Juana Alonzo Santizo is an indigenous woman from Guatemala and member of the
Chuj Maya people, born on 10 April 1987. At the time of her arrest, she was 27 years old and
did not speak Spanish well.
5.
According to the submissions, Ms. Alonzo Santizo was deprived of her liberty on 10
November 2014 by officials of the Special Unit for the Investigation and Prosecution of
Kidnapping of what was then the Office of the State Attorney General of Tamaulipas, who
did not show an arrest warrant or other order issued by a government authority.
6.
According to the source, Ms. Alonzo Santizo was on her way from Guatemala to the
United States of America, where she has relatives. The person who was supposed to help her
complete this journey instead held her captive in a house in Villa Diamante, a subdivision of
Reynosa, Tamaulipas, together with another migrant woman and her 6-year-old daughter.
The source notes that the other woman called the police to report that she was being
unlawfully deprived of her liberty. After officials from the Office of the State Attorney
General entered the house, the other migrant, according to the source, was forced by
representatives of the Office to accuse Ms. Alonzo Santizo of kidnapping her.
7.
Ms. Alonzo Santizo was taken to a police station and then to the premises of the Office
of the State Attorney General of Tamaulipas, where she was held for a week. On 12
November 2014, she was brought before the judicial authorities. On 18 November 2014, she
was admitted to the social rehabilitation centre of Reynosa, where, despite not having been
sentenced, she remains in detention.
8.
According to the source, the authorities claimed that Ms. Alonzo Santizo was arrested
after being caught in flagrante delicto when officials of the Special Unit for the Investigation
and Prosecution of Kidnapping of the then Office of the State Attorney General of
Tamaulipas, following a telephone tip about people being held against their will in the house
in question, found her there.
9.
The source notes that the place of arrest was a house used to group migrants waiting
to be taken to the United States of America by the people known as polleros (“chicken
farmers”), who smuggled people across the border for pay. Ms. Alonzo Santizo had remained
at the house because she was ill, the polleros having refused to take her across the border in
her condition. The other migrant woman and her daughter, also presumed to be victims of
trafficking, had not been taken either. The polleros were not in the house at the time of the
police operation; Ms. Alonzo Santizo and the other woman and the woman’s daughter were
alone.
10.
The source notes that, during the arrest, under pressure by the officials, the other
migrant woman accused Ms. Alonzo Santizo of being part of the gang of kidnappers. Ms.
Alonzo Santizo did not speak Spanish and therefore did not realize any of this at the time of
her arrest or for most of the proceedings against her. It was not until several months after her
arrest that she received the assistance of an interpreter.
11.
After her arrest, she was taken to the premises of the Office of the State Attorney
General of Tamaulipas State, where she was interrogated by a group of half a dozen people,
without a lawyer present. The source claims that, during the interrogation, at least three in
the group struck Ms. Alonzo Santizo; she also received death threats and was held at
gunpoint. She was held at these premises for approximately a week, until 18 November 2014,
when she was transferred to the social rehabilitation centre of Reynosa, in Tamaulipas. She
had no access to a translator or interpreter during this time.
12.
According to the submission, Ms. Alonzo Santizo was forced to sign various papers
while at the Office of the State Attorney General, but as she did not know how to speak or
write Spanish, did not have access to a lawyer, translator or interpreter and did not receive
consular assistance from her country of origin, she was unsure of the content of the
documents. The documents that the officials gave her to sign contained her confession to the
alleged kidnapping of which she stood accused.
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13.
When Ms. Alonzo Santizo was brought before a judge on 23 November 2014, she
reported that she had been subjected to torture and/or degrading treatment by the officials of
the Office of the State Attorney General. The source notes, however, that these allegations
of torture have not been investigated.
14.
The source notes that, throughout her trial, Ms. Alonzo Santizo was in contact with
the lawyers who had supposedly been appointed for her, who advised her not to change
anything in her initial statement to the prosecution service even though she had incriminated
herself in it.
15.
The criminal trial judge, from the beginning of the case, ordered that Ms. Alonzo
Santizo be placed in mandatory preventive detention on the basis of article 19 of the
Constitution, which establishes that the offence of kidnapping warrants automatic preventive
detention without taking into account the circumstances of a case.
16.
The source notes that the Office of the State Attorney General stated that it had
attempted, to no avail, to reach the consular authorities of Guatemala so that they could
provide Ms. Alonzo Santizo with assistance.
17.
The source claims that, to this date, the allegations of torture have not been
investigated and that there has been no pronouncement on the rights violations that occurred
during detention. Counsel for Ms. Alonzo Santizo filed various appeals against the judicial
decisions that prolonged the proceedings against her and her deprivation of liberty. However,
none has led to a resolution of the case or any improvement in her legal situation.
18.
A complaint was lodged with the Tamaulipas State Human Rights Commission
regarding the violations committed during her detention and trial. However, neither the
national nor the state-level institution for human rights has issued a recommendation.
i.
Category I
19.
The source claims that the detention has no legal basis. Although the Constitution
envisages flagrante delicto as a situation in which the authorities may decide to deprive
persons of their liberty, Ms. Alonzo Santizo was not committing an unlawful act at the time
of her arrest. The statement in which she incriminated herself was given without a lawyer,
interpreter or translator present and under ill-treatment and torture; she did not receive
consular assistance either.
ii.
Category III
20.
The source also claims that, in Ms. Alonzo Santizo’s case, international standards
regarding the right to a fair and impartial trial have not been observed. At no time was Ms.
Alonzo Santizo, who is indigenous and lacks mastery of the Spanish language, provided with
a translator or interpreter, in violation of article 14 (3) of the Covenant. In further violation
of this article, Ms. Alonzo Santizo was forced to incriminate herself, as, while detained on
the premises of the Office of the State Attorney General, she was tortured and threatened into
confessing to the acts of which she was accused.
21.
In addition, the source claims that mandatory preventive detention in Mexico the rule
rather than the exception in criminal trials, in violation of article 9 (3) of the Covenant. Ms.
Alonzo Santizo, who has not been sentenced, has spent over five years in preventive
detention.
iii.
Category V
22.
Lastly, the source claims that Ms. Alonzo Santizo was discriminated against as an
indigenous migrant woman who is not fluent in Spanish, which put her at a disadvantage in
terms of her ability to exercise her rights to an adequate defence and due process.
Response from the Government
23.
With a view to issuing an opinion on the case in accordance with its methods of work,
the Working Group transmitted the source’s allegations to the Government of Mexico on 22
April 2021, requesting a response by 21 June 2021. The Working Group also requested the
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Government to provide detailed information regarding the case of Ms. Alonzo Santizo,
clarify the legal and factual basis for her detention and comment on its compatibility with the
State’s international human rights obligations. The Working Group further requested the
Government to protect Ms. Alonzo Santizo’s physical and mental health.
24.
In the context of the global pandemic, and in accordance with the World Health
Organization recommendations of 15 March 2020 concerning the response to coronavirus
disease (COVID-19) in places of detention, the Working Group urged the Government to
prioritize the use of non-custodial measures at all stages of criminal proceedings, including
during the pretrial phase, the trial, sentencing and sentence enforcement.
25.
On 16 June 2021, the Government requested an extension, which was granted; it
submitted its response on 22 July 2021, within the time frame established in the methods of
work.
26.
In its response, the Government noted that, on 10 November 2014, Ms. Alonzo
Santizo was arrested by officials of the Special Unit for the Investigation and Prosecution of
Kidnapping of what was then the Office of the State Attorney General of Tamaulipas, as
reflected in the Unit’s logs, in which it is recorded that preliminary investigation No.
102/2014, regarding Ms. Alonzo Santizo, was assigned on 12 November 2014 to the Third
Court of First Instance of the criminal division of the Tamaulipas State Supreme Court in
Reynosa.
27.
The Government points out that the consular authorities of Guatemala were notified
of Ms. Alonzo Santizo’s arrest and of the date and time of her preliminary statement. The
statement was given in keeping with article 20 of the Constitution on 13 November 2014, at
which time she was informed of her rights. Counsel was appointed for Ms. Alonzo Santino,
who gave her statement without making any mention of torture and/or ill-treatment by the
arresting officers.
28.
The Government notes that an order for the detention of Ms. Alonzo Santino was
issued on 18 November 2014 for her probable commission of a kidnapping punishable in
accordance with article 9 (I) (a) of the Act for the Prevention and Punishment of Kidnapping
Offences and with the aggravating circumstances established in article 10 (I) (b) and (e), in
keeping with the requirements of article 19 of the Constitution, on the offences whose
seriousness warrants preventive detention. The Government also notes that the accused
lodged an appeal, but her detention was upheld in a decision of the Regional Chamber of the
Fifth Judicial District of 24 April 2015. The Government further notes that the accused’s
defence counsel was appointed on 13 July 2017. On 26 September 2018, she was brought
before the judge and an expert translator of the Chuj language was appointed. Also on 26
September 2016, at a public hearing attended by the parties, including representatives of the
Consulate of Guatemala, Ms. Alonzo Santizo gave an additional statement in which she
claimed to have been subjected to ill-treatment by her captors.
29.
The Government notes that, pursuant to decision No. 493/2018 bis of 6 September
2019 regarding the application for amparo, the proceedings were stayed until a constitutional
ruling could be rendered. Accordingly, the trial was set to resume on 10 September 2019, and
Ms. Alonzo Santizo was notified personally of this fact and of her fundamental right to
inform, communicate with and receive assistance from consular authorities as a means of
ensuring that foreign nationals can exercise their right to an adequate defence. According to
the Government, the detainee said that she did not need a translator because she understood
Spanish after practising it all this time and requested the presence only of her defence counsel
and the Consul of Guatemala; she signed the record of this statement. On 13 September 2019,
the proceedings resumed in the presence of the Vice-Consul of Guatemala and the
prosecution service. On this occasion, she refused to make a statement, as is her right under
the law. On 19 September 2019, the legal situation was resolved through the issuance of an
order for the detention of Ms. Alonzo Santizo on suspicion of a kidnapping punishable in
accordance with article 9 (I) (a) of the Act for the Prevention and Punishment of Kidnapping
Offences and with the aggravating circumstances listed in article 10 (I) (b) and (e). The order
was in keeping with article 19 of the Constitution, under which kidnapping is considered
serious and therefore warrants mandatory preventive detention.
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30.
Finally, the Government repeats that Ms. Alonzo Santizo has an adequate defence
lawyer, whom she designated herself, which entailed a change of counsel, though the
previous appointees were not dismissed. The Government adds that the head of the Federal
Public Defender Service designated federal public defenders for Ms. Alonzo Santino but that
this designation was suspended until she could be informed and decide whether to accept
those public defenders or to choose her own. The decision to suspend the designation was
taken to protect Ms. Alonzo Santizo’s rights under article 20 (B) (VIII) of the Constitution.
Ms. Alonzo Santizo lodged a complaint with the Tamaulipas State Human Rights
Commission, which will see an investigation through to completion.
31.
The Government concludes by stating that Ms. Alonzo Santizo is deprived of her
liberty at the sentence enforcement and social rehabilitation centre of Reynosa, Tamaulipas
State, as a defendant.
Discussion
32.
The Working Group thanks the source and the Government for their submissions.
33.
The Working Group has in its jurisprudence established the ways in which it deals
with evidentiary issues. If the source has established a prima facie case for breach of
international requirements constituting arbitrary detention, the burden of proof should be
understood to rest upon the Government if it wishes to refute the allegations.2 In the present
case, the Government replied to the Working Group within the established period.
34.
The Working Group wishes to reaffirm that States have the obligation to respect,
protect and fulfil all human rights and fundamental freedoms, including liberty of person,
and that any national law allowing deprivation of liberty should be made and implemented
in conformity with the relevant international standards set forth in the Universal Declaration
of Human Rights, the International Covenant on Civil and Political Rights, the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and other
applicable international and regional instruments. Consequently, even if the detention is in
conformity with national legislation, regulations and practices, the Working Group must
assess the judicial proceedings and the law itself to determine whether the detention is also
consistent with the relevant provisions of international human rights law.
i.
Category I
35.
The Working Group has received information according to which Ms. Alonzo Santizo
was arrested on 10 November 2014 by officials of the Special Unit for the Investigation and
Prosecution of Kidnapping of what was then the Office of the State Attorney General of
Tamaulipas, who did not show an arrest warrant or other order issued by a government
authority. The source submits that, although the Constitution envisages flagrante delicto as a
situation in which the authorities may decide to deprive persons of their liberty, Ms. Alonzo
Santizo was not committing an unlawful act at the time of her arrest. The statement in which
she incriminated herself was given without a lawyer, interpreter or translator present and was
obtained through ill-treatment and torture. She did not benefit from consular assistance either.
According to the source, Ms. Alonzo Santizo was on her way from Guatemala to the United
States of America. The person who was supposed to help her complete this journey held her
captive in a house in Villa Diamante, a subdivision of Reynosa, Tamaulipas, together with
another migrant woman and her 6-year-old daughter. The source notes that the other woman
called the police to report that she was being unlawfully deprived of her liberty. After the
officials from the Office of the State Attorney General entered the house, the other migrant
woman was, according to the source, forced by representatives of the Office to accuse Ms.
Alonzo Santizo of kidnapping her. Ms. Alonzo Santizo was taken to a police station and then
to the premises of the Office of the State Attorney General of Tamaulipas, where she was
held for a week. On 12 November 2014, she was brought before the judicial authorities. On
18 November 2014, she was admitted to the social rehabilitation centre of Reynosa. The
Government notes that, on that date, Ms. Alonzo Santizo was ordered detained on suspicion
of a kidnapping punishable in accordance with article 9 (I) (a) of the Act for the Prevention
2 A/HRC/19/57, para. 68.
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and Punishment of Kidnapping Offences and with the aggravating circumstances listed in
article 10 (I) (b) and (e). The Government notes that the accused lodged an appeal, but her
detention was upheld by decision of the Regional Chamber of the Fifth Judicial District of
24 April 2015.
36.
The Working Group points out that the first detention order was suspended, meaning
that the accused reverted to her status as a person being held in automatic preventive
detention. According to the Government, following various procedural steps and five years
during which Ms. Alonzo Santizo remained detained, the resumption of the trial was ordered
by the Superior Court judge in decision No. 493/2018 bis of 6 September 2019. It was set to
resume on 10 September 2019, and the accused was personally notified of the new date and
of her right to inform, communicate with and receive assistance from the consular authorities.
37.
The Government notes that Ms. Alonzo Santizo stated that she had no need for a
translator because she understood Spanish after practising it all this time and that she
requested the presence only of her defence counsel and the Consul of Guatemala; she signed
the record of this statement. On 13 September 2019, the proceedings were reinitiated in the
presence of the defence counsel and the Vice-Consul of Guatemala, and the accused refused
to make a statement, as is her right. On 19 September 2019, another order was issued to detain
Ms. Alonzo Santizo on suspicion of a kidnapping punishable in accordance with article 9 (I)
(a) of the Act for the Prevention and Punishment of Kidnapping Offences and with the
aggravating circumstances listed in article 10 (I) (b) and (e). The order was in keeping with
article 19 of the Constitution, under which kidnapping is considered serious and therefore
warrants preventive detention.
38.
The Government reaffirms that Ms. Alonzo Santizo has an adequate defence lawyer,
whom she designated herself, changing counsel without rescinding the previous appointment.
She was provided with a translator, whose services she refused, and public defenders. In
addition, the Government notes that Ms. Alonzo Santizo lodged a complaint with the
Tamaulipas State Human Rights Commission, which will see an investigation through to
completion.
39.
The source submits that Ms. Alonzo Santizo’s detention is arbitrary under categories
I, III and V. The Government denies these allegations and argues that her detention has been
carried out in keeping with national standards and domestic legislation. The Working Group
reiterates that even when a person is detained in conformity with national legislation, the
detention must also be consistent with the relevant provisions of international law. In this
case, Ms. Alonzo Santizo was placed in automatic pretrial detention, without a formal
detention order having been issued, in violation of her rights under article 9 (1) to (3) of the
Covenant.
40.
The Working Group wishes to make clear that the fact that a State complies with its
own domestic legislation does not mean that the legislation is in accordance with the
obligations that the State has undertaken under international human rights law. Compliance
with domestic legislation is not automatically considered compliance with international law.
Similarly, a State cannot legitimately avoid its obligations arising from international human
rights law by evoking its domestic laws and regulations. If it could, the usefulness of
international human rights norms would be negated.
41.
The Working Group stresses that, as it has repeatedly stated in its jurisprudence, for
there to be a legal basis for deprivation of liberty, not only must it be authorized by law but
the authorities must also invoke the law and apply it to the circumstances of a case through a
judicial order. The Working Group is of the view that, among the safeguards against arbitrary
detention, international law requires an arrest warrant be issued and shown to the person to
be arrested. This practice is procedurally inherent in the right to liberty and security of person
and the prohibition of arbitrary deprivation under articles 3 and 9 of the Universal Declaration
of Human Rights, article 9 (1) of the Covenant, as well as under principles 2, 4 and 10 of the
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment.
42.
Any form of detention or imprisonment should be ordered by a judicial authority in
keeping with the law or be immediately subjected to the effective control of this authority,
whose status and remit should afford the strongest possible guarantees of competence,
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impartiality and independence, in accordance with principle 4 of the Body of Principles for
the Protection of All Persons under Any Form of Detention or Imprisonment. The
Government has not demonstrated that such effective judicial control of the necessity and
proportionality of detention has been afforded to Ms. Alonzo Santizo.
43.
The Working Group also considers that the situation of flagrante delicto, which has
been specifically raised to justify the manner of Ms. Alonzo Santizo’s arrest, has not been
demonstrated either. Flagrante delicto arises when a person is detained at the moment of
committing an offence. The term comes from the Latin flagrans, meaning “in actual
perpetration”. Flagrante delicto can also arise when a person is arrested after a pursuit
immediately following on the commission of an offence. In the present case, the source
submits that Ms. Alonzo Santizo was accused by the other woman, who was in the same
circumstances as she was – they were both possible victims of human trafficking – after being
questioned by law enforcement officials and pressured by her captors. Ms. Alonzo Santizo
could not understand or protest any of what was happening because she did not speak
Spanish. The Working Group reiterates that admitting as evidence a statement that was
allegedly obtained through coercion, torture or ill-treatment renders unfair, and therefore
vitiates, a trial, irrespective of whether there is other evidence – there was not, as it happens
– to make a determination. Furthermore, the Government is responsible for proving that
statements were not made under duress; however, it did not provide this proof either.
44.
The Inter-American Court of Human Rights has expressed its position on flagrante
delicto on several occasions, stressing that flagrante delicto must be demonstrated by the
authority,3 which was not done in the case under discussion, not presumed.
45.
According to the source, Ms. Alonzo Santizo was arrested on 10 November 2014 and
her legal situation was not resolved until 20 September 2019, when a detention order was
issued. For the Working Group, there is no doubt that Ms. Alonzo Santizo was held in
preventive detention for an excessive length of time. Therefore, that Ms. Alonzo Santizo has
remained in preventive detention for five years is a violation of her rights under paragraph 9
(3) of the Covenant.
46.
The Working Group wishes to emphasize that in accordance with article 9 (3) of the
Covenant, pretrial detention should be the exception rather than the norm and should be
ordered for the shortest time possible. In other words, under article 9 (3) of the Covenant,
liberty should be the prime consideration and detention never more than an exception.
Detention pending trial must thus be based on an individualized determination that it is
reasonable and necessary for such purposes as to prevent flight, tampering with evidence or
the recurrence of crime. The information submitted to the Working Group in this case reveals
that Ms. Alonzo Santizo’s case has not been handled in keeping with the aforementioned
international standards. The Working Group stresses that the Government has not
convincingly refuted this assertion beyond stating that neither Ms. Alonzo Santizo’s arrest
nor her detention was arbitrary.
47.
Ms. Alonzo Santizo made allegations that she had been the victim of cruel and
humiliating treatment and that her arrest resulted from the sole witness’s being tortured and
coerced into accusing her. In such situations, the obligation to disprove the allegations rests
with the Government, which is also obliged to ensure that an effective investigation is
conducted into allegations of torture and that the perpetrators are prosecuted for their actions.
Fulfilling that obligation helps end impunity in general and is critical to ensuring
accountability before victims and society. For these reasons, the Working Group considers
that five years is an excessive amount of time for there not to have been an investigation. In
the light of these circumstances, the Working Group decides to refer the present case to the
Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment
for appropriate action.
48.
The Working Group notes that at no time was an alternative to the pretrial detention
of Ms. Alonzo Santizo considered, even though preventive detention must be a last resort,
3 Inter-American Court of Human Rights, Guerrero, Molina et al. v. Venezuela, judgment of 3 June
2021, para. 108, and Fernández Prieto and Tumbeiro v. Argentina, judgment of 1 September 2020,
paras. 88–101.
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meaning that it must be the exception rather than the rule. Moreover, it must be of short
duration – that is, imposed for the shortest possible period of time. Article 9 (3) of the
Covenant also stipulates that every time preventive detention is imposed, it must be justified
in a reasoned judicial decision; Ms. Alonzo Santizo was not afforded this safeguard.
49.
In addition, the Working Group stresses that preventive detention must be an
exceptional measure taken in the interest of justice and that accused persons must be released
when there are means of guaranteeing that they will appear for trial and serve their sentence.
When preventive detention is prolonged, as in the case under consideration, there is all the
more reason for the accused to be released pending trial.
50.
Having examined all of the procedural steps in the trial of Ms. Alonzo Santizo, as well
as the Government’s response to the source’s claims, the Working Group concludes that the
statutory requirements for an arrest to be lawful, legitimate, proportionate and necessary, as
established in the Universal Declaration of Human Rights, the Covenant and, in this case, the
jurisprudence of the Inter-American Court of Human Rights, were not met at any stage. The
Working Group refers the present case to the Special Rapporteur on the independence of
judges and lawyers and the Special Rapporteur on the human rights of migrants for
appropriate action within the scope of their mandates.
51.
The Working Group has found, in cases relating to Mexico, that the detainees tend to
report not having been shown an arrest warrant or informed of the reasons for their arrest and
that the provision on automatic preventive detention remains in the Constitution and is widely
applied. The Working Group has observed that failure to comply with detention procedures
is a systemic problem in Mexico. The Working Group notes that no State may take steps to
undermine the rights and freedoms enshrined in the Covenant, including the right not to be
subjected to arbitrary detention or torture.
52.
In the light of the foregoing, the Working Group is of the view that Ms. Alonzo
Santizo’s detention was arbitrary under category I, in violation of article 9 (3) of the
Covenant.
ii.
Category III
53.
In the determination of any criminal charges or of rights and obligations, the right to
a fair and public hearing by a competent, independent and impartial court established by law
is guaranteed, in accordance with article 14 (1) of the Covenant.
54.
The Working Group wishes to reiterate its view that criminal charges refer, in
principle, to acts that are punishable in domestic criminal law. The source alleges that Ms.
Alonzo Santizo’s right to a fair and impartial trial was violated, a violation that would make
her detention arbitrary under category III.
55.
The source claims that, in Ms. Alonzo Santizo’s case, international standards
regarding the right to a fair and impartial trial have not been observed. Ms. Alonzo Santizo
was not provided with the assistance of a translator or interpreter at an opportune time, despite
being indigenous and not mastering the Spanish language, in violation of article 14 (3) of the
Covenant. In further violation of this article, Ms. Alonzo Santizo was forced to incriminate
herself, as, while detained on the premises of the Office of the State Attorney General, she
was tortured and threatened into confessing to the acts of which she was accused.
56.
Having closely examined the submissions of the source and the Government in
relation to the case of Ms. Alonzo Santizo and to what she experienced during her detention,
the Working Group does not believe that she was provided with the timely assistance of a
doctor, translator or legal professional within the time frame established in international law.
Nor was she afforded the required treatment for victims of trafficking – namely, immediate
psychological support, as provided for in articles 6, 7 and 8 of the Protocol to Prevent,
Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing
the United Nations Convention against Transnational Organized Crime. On the basis of all
the information it has received, the Working Group finds violations of article 14 (3) (a), (b),
(d), (e) and (f) of the Covenant, principles 1, 2, 3, 4, 6, 8, 9, 10, 13, 14, 17 and 18 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
as well as the United Nations Rules for the Treatment of Women Prisoners and Non-custodial
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Measures for Women Offenders (the Bangkok Rules) and the United Nations Standard
Minimum Rules for Non-custodial Measures (the Tokyo Rules).
57.
Under article 14 (3) (b) of the Covenant, Ms. Alonzo Santizo should have had
adequate time and facilities for the preparation of her defence and to communicate with
counsel of her own choosing. The Working Group points out that this safeguard is vital for a
trial to be considered fair and impartial. In this case, Ms. Alonzo Santizo’s right was infringed
inasmuch as she was not granted access to a lawyer prior to making her initial statement and
was later denied equality of arms at trial. The Government has not contested these assertions
either.
58.
The combination of these factors worsened the violation of the right to the
presumption of innocence, which, despite being enshrined in article 14 (2) of the Covenant,
was not afforded to Ms. Alonzo Santizo. The Working Group stresses that the presumption
of innocence, which is fundamental to the protection of human rights, means that the burden
rests on the Government to prove the charge brought against an accused person and that a
defendant cannot be presumed guilty until the charge has been proved beyond a reasonable
doubt. This safeguard also ensures that an accused person is given the benefit of the doubt
and requires that persons accused of an offence be treated in keeping with this principle. All
State authorities have a duty to refrain from prejudging the outcome of a trial.
59.
The source claims that Ms. Alonzo Santizo was subjected to ill-treatment and torture
to extract a confession. Furthermore, Ms. Alonzo Santizo told the judge and her consular
representative that the sole witness, whose statement was used to arrest her, had been
subjected to torture to compel her to accuse Ms. Alonzo Santizo. The Government did not
challenge the source’s claims. The Working Group believes that the source has made a prima
facie case for torture and ill-treatment. This conduct violates 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.
60.
In its response, the Government submitted that no such offence was committed and
that Ms. Alonzo Santizo lodged a complaint with the Tamaulipas State Human Rights
Commission, which will see the investigation through. This action does not satisfy the
requirements of international human rights law. The Working Group emphasizes that the
admission into evidence of a statement allegedly obtained through torture or ill-treatment
renders the entire proceedings unfair.4 The burden rests with the Government to prove that
the witness statements were given freely and voluntarily. Yet, as previously mentioned, the
Government has not refuted or challenged the allegation or remedied the situation. Worse
still, the statement of the sole witness against Ms. Alonzo Santizo, on the basis of which she
was arrested, was also obtained through ill-treatment and torture. The Working Group once
again stresses that the admission into evidence of a statement allegedly obtained through
torture or ill-treatment renders the entire proceedings unfair, regardless of whether there is
other evidence to support the verdict. 5 The Working Group wishes to emphasize that
intentional application of pressure to obtain a confession violates articles 2, 13, 15 and 16 of
the Convention against Torture.
61.
In the Working Group’s view, the above-mentioned violations of the right to a fair,
independent and impartial trial are of such seriousness in this case as to render Ms. Alonzo
Santizo’s detention arbitrary under category III.
iii.
Category V
62.
Lastly, the source claims that, as an indigenous migrant woman who is not fluent in
Spanish, Ms. Alonzo Santizo was at a disadvantage in terms of her ability to exercise her
rights to an adequate defence and due process. The source alleges therefore that she was
4 Opinion No. 86/2020.
5 Opinions No. 73/2019, para. 91, No. 59/2019, para. 71, No. 32/2019, para. 43, No. 52/2018, para. 79
(i), No. 34/2015, para. 28, and No. 43/2012, para. 41.
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GE.21-16046
discriminated against in the exercise of these rights, rendering her detention arbitrary under
category V.
63.
The Working Group contends that deprivation of liberty is arbitrary when it
constitutes a violation of norms of international law regarding the equality of human beings
and the prohibition of discrimination. In the present case, the Working Group has already
noted that the detention was ordered pursuant to article 19 of the Constitution and other
Mexican laws that provide for automatic detention of a specific group of individuals accused
of certain offences, causing them to be treated in a disproportionately discriminatory
manner.6 The Working Group, in accordance with its jurisprudence, is therefore of the view
that as the detention of Ms. Alonzo Santino involves violations of articles 1, 2 and 7 of the
Universal Declaration of Human Rights and articles 2 and 26 of the Covenant, it is also
arbitrary under category V.7
64.
The Working Group decides to refer the present case to the Special Rapporteur on the
rights of indigenous peoples, the Special Rapporteur on trafficking in persons, especially
women and children, and the Working Group on discrimination against women and girls for
appropriate action within the scope of their respective mandates.
Disposition
65.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Juana Alonzo Santizo, being in contravention of articles
1, 2, 3, 5, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and articles
2, 7, 9, 10, 14 and 26 of the International Covenant on Civil and Political Rights, is
arbitrary and falls within categories I, III and V.
66.
The Working Group requests the Government of Mexico to take the steps necessary
to remedy the situation of Ms. Alonzo Santizo 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.
67.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Ms. Alonzo Santizo immediately and accord
her an enforceable right to compensation and other reparations, in accordance with
international law. Such a remedy would be especially appropriate given the interpretative
statement of Mexico regarding article 9 (5) of the Covenant, which reads:
Under the Political Constitution of the United Mexican States and the relevant
implementing legislation, every individual enjoys the guarantees relating to penal
matters embodied therein, and consequently no person may be unlawfully arrested or
detained. However, if by reason of false accusation or complaint any individual suffers
an infringement of this basic right, he has, inter alia, under the provisions of the
appropriate laws, an enforceable right to just compensation.
68.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Ms.
Alonzo Santizo and to take appropriate measures against those responsible for the violation
of her rights.
69.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment, the Special Rapporteur on the independence of judges and lawyers,
the Special Rapporteur on the rights of indigenous peoples, the Special Rapporteur on the
human rights of migrants, the Special Rapporteur on trafficking in persons, especially women
and children, and the Working Group on discrimination against women and girls for
appropriate action.
6 Opinion No. 64/2019, paras. 91–93.
7 Opinion No. 55/2020 and A/HRC/36/37, para. 48.
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70.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
71.
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 Ms. Alonzo Santizo has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Ms. Alonzo
Santizo;
(c)
Whether an investigation has been conducted into the violation of Ms. Alonzo
Santizo’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.
72.
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.
73.
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.
74.
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.8
[Adopted on 8 September 2021]
8 Human Rights Council resolution 42/22, paras. 3 and 7.