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.22-01088 (E) 160522 170522
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-second session, 15–19 November 2021
Opinion No. 67/2021 concerning Hugo Martínez Gorostieta (Mexico)
1.
The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42. By 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,1 on 11 August 2021 the Working Group
transmitted to the Government of Mexico a communication concerning Hugo Martínez
Gorostieta. The Government has not replied to the communication. 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/2021/67
General Assembly
Distr.: General
28 January 2022
English
Original: Spanish
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Submissions
Communication from the source
4.
Hugo Martínez Gorostieta is a national of Mexico who works as a vendor and has his
habitual residence in the neighbourhood of Pedregal de San Nicolás, in the borough of
Tlalpan, Mexico City.
Arrest and detention
5.
According to the information received, Mr. Martínez was arrested on 29 October 2008
at approximately 6.00 p.m. at his place of work in Mexico City by officers of the criminal
investigation police unit attached to the Office of the Attorney General of the Federal District
(now the Office of the Attorney General of Mexico City), who did not present an arrest
warrant or other court order. At first, Mr. Martínez noticed a lone person in plain clothes
standing next to the door of the van in which he was sitting; then, as he opened the door to
the van, several other persons rushed him and dragged him out of the vehicle with excessive
force. Mr. Martínez believed that he was being assaulted, robbed or kidnapped. The police
officers put him in a private vehicle and took him to a waste ground, the location of which is
unknown.
6.
The source claims that Mr. Martínez was tortured inside a wooden house located on
this waste ground: plastic bags were placed over his head, he received blows to the ribs and
electric shocks were applied to his testicles, among other acts. The torture was allegedly
intended to coerce him into stating that he recognized several people whose photographs
were shown to him and admitting to having participated in two kidnappings.
7.
According to the source, after being subjected to five hours of torture intended to make
him incriminate himself, Mr. Martínez was brought before the Central Investigations Unit of
the Prosecution Service of the Office of the Attorney General of the Federal District. On the
Service’s premises, he was placed in a chair, handcuffed with his arms behind his back and
again beaten in an attempt to force him to admit to participating in the kidnappings. During
his time in the custody of the Public Prosecution Service, he was presented to the media as a
member of a kidnapping gang, questioned on multiple occasions and forced to take part in an
identification procedure in a Gesell chamber, in the absence of defence counsel.
8.
The authorities reportedly claimed that the arrest was carried out in line with an
“emergency case” procedure, as a witness had allegedly reported, earlier that same day, on
29 October 2008, that Mr. Martínez had been involved in the two kidnappings. Without a
warrant, corroborating information, or any investigation or prior authorization, police officers
arrested Mr. Martínez based solely on the statement of an alleged witness.
9.
The source explains that Mr. Martínez was arrested without a court or prosecutorial
order and that, consequently, his arrest had no legal basis. However, the authorities claimed
that Mr. Martínez’s case qualified as an emergency and, as such, the arrest was authorized
under article 16 of the Constitution. Article 268 of the Code of Criminal Procedure of the
Federal District contains detailed legal provisions in this regard. The power of emergency
arrest allows the Public Prosecution Service to order an arrest without a court order; however,
by law, the Service must prove that three criteria have been met, namely that: (a) the case
involves a serious offence; (b) there is a substantiated risk that the suspected perpetrator
might abscond; and (c) the Public Prosecution Service cannot apply for prior authorization
from the judicial authorities owing to the time, place or other circumstances. When exercising
this power, the Service is required to issue a decision prior to the arrest justifying and
substantiating its course of action in accordance with a high standard of proof. In the case of
Mr. Martínez, the Supreme Court ruled that the requirements for the exercise of the power of
emergency arrest had not been met.
10.
On 30 October 2008, at 4.10 a.m., the Public Prosecution Service declared that Mr.
Martínez was being held in connection with an alleged emergency case. That same day, Mr.
Martínez gave a statement to the public prosecutor in which he pleaded guilty to the charges
against him.
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Criminal trial, conviction and legal remedies pursued
11.
The source indicates that, on 30 October 2008, following Mr. Martínez’s arrest and
once the Public Prosecution Service had obtained evidence unlawfully and arbitrarily, the
Office of the Attorney General of the Federal District initiated criminal proceedings. Trial
No. 242/2008 was held before the Forty-seventh Criminal Court of the Federal District,
which sentenced Mr. Martínez to 146 years in prison and ordered him to pay a fine of
350,564.94 Mexican pesos.
12.
Mr. Martínez lodged an appeal with the Fifth Criminal Chamber of the High Court of
Justice of the Federal District, which was filed under case No. 959/2010. On 20 August 2010,
the appellate court issued its decision, whereby it modified the sentence handed down by the
court of first instance, but only with respect to the degree of responsibility allegedly proven,
reducing his sentence to 113 years of imprisonment.
13.
The source explains that, since the ruling on Mr. Martínez’s appeal failed to uphold
his rights, amparo proceedings were filed before the Seventh Collegiate Criminal Court of
the First Circuit under case No. 191/2011. During the proceedings, the claims dismissed by
the appellate court were relitigated; these included the claims that Mr. Martínez’s arrest was
unlawful, that evidence had been illicitly gathered through the illegal interception of
communications and that evidence obtained while Mr. Martínez was being held in
incommunicado detention had been used improperly.
14.
On 29 September 2011, the Seventh Collegiate Criminal Court of the First Circuit
issued its decision, in which it upheld the appellate court’s ruling and denied constitutional
protection. Dissatisfied with this decision, Mr. Martínez’s legal counsel filed an application
for judicial review of the amparo decision, which was admitted by the First Chamber of the
Supreme Court of Justice of Mexico under case No. 2470/2011.
15.
The source indicates that, in its findings, the Supreme Court of Justice applied an
interpretation of articles 14, 16 and 20 of the Constitution in respect of the issues of unlawful
and arbitrary detention, the invalidity of evidence obtained through the violation of human
rights and the interception of communications. The Supreme Court then requested the
Collegiate Court to issue a new decision in accordance with its ruling.
16.
According to the source, the Collegiate Court issued a new ruling but again denied the
application for amparo. A new application for judicial review was consequently filed with
the Supreme Court of Justice (No. 1428/2012). For the second time, the Supreme Court ruled
in favour of Mr. Martínez, stating that: (a) the arrest was unlawful because the required
criteria for making an arrest under the emergency procedure had not been met; (b) his
detention had been unjustifiably prolonged beyond the limit established by the Constitution
because the police officers concerned took additional steps before bringing Mr. Martínez
before the Public Prosecution Service; (c) Mr. Martínez’s detention was arbitrary; (d) the
appropriate remedy was for the Collegiate Court to revoke its decision and issue a new ruling
in accordance with the Supreme Court’s findings; and (e) owing to the arbitrary nature of the
detention, during the first few hours of which Mr. Martínez was held incommunicado, the
statements and evidence obtained before Mr. Martínez was brought before the judicial
authorities were null and void.
17.
According to the information provided by the source, in acting upon the ruling of the
Supreme Court of Justice, the Collegiate Court denied the application for amparo on the basis
of evidence obtained as a result of the arbitrary detention of Mr. Martínez and the illegal
interception of communications. Accordingly, another application for judicial review was
filed before the Supreme Court (No. 5531/2014); however, this time, instead of determining
whether the Collegiate Court had complied with its ruling, the Supreme Court dismissed the
appeal and did not review the case. An appeal was filed against this decision but was
dismissed. With this decision of 9 February 2016, the Supreme Court rendered the sentence
against Mr. Martínez final and unappealable.
18.
According to the source, members of Mr. Martínez’s family brought his case before
the Federal District Human Rights Commission in 2010, filing a complaint of human rights
violations. On 16 August 2018, the Federal District Human Rights Commission issued
recommendation No. 5/2018, in which it recognized that Mr. Martínez was the victim of
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violations of the following human rights: the rights to personal liberty, given his illegal
detention; to integrity of the person, given the torture inflicted on him; to due process; and to
access to justice.
19.
On the basis of recommendation No. 5/2018, Mr. Martínez’s defence counsel lodged
an application for recognition of innocence on 10 January 2019 before the Fifth Criminal
Chamber of the High Court of Justice of the Federal District, but this application was declared
unfounded because it supposedly did not meet any of the conditions established in article 614
of the Code of Criminal Procedure of the Federal District.
20.
An application for amparo was filed in respect of this decision but was found to be
unsubstantiated. An appeal for review (No. 129/2019) was then filed against this latest
decision, but the Seventh Collegiate Criminal Court of the First Circuit upheld the ruling of
the district court, stating that the recommendation of the Federal District Human Rights
Commission did not demonstrate Mr. Martínez’s innocence.
21.
On the basis of the recommendation of the Federal District Human Rights
Commission, Mr. Martínez’s defence counsel referred his case to the Executive Commission
for Victim Support of Mexico City in 2020, requesting that Mr. Martínez be granted
comprehensive reparation, including the restoration of his freedom, in accordance with the
Mexico City Victims Act. However, the Executive Commission notified Mr. Martínez and
his legal counsel on 9 July 2021 that it would not grant full reparation and that victims should
submit their case to the working groups of the Office of the Secretary General of the
Government of Mexico City, which are authorized to award only compensation, not
comprehensive reparation. Mr. Martínez’s defence counsel thus exhausted all ordinary and
extraordinary domestic remedies available in the Mexican legal system, without ever finding
an effective avenue of recourse with respect to Mr. Martínez’s arbitrary detention, which has
now lasted for over a decade. Despite the fact that the Supreme Court, the highest court in
the land, recognized that Mr. Martínez’s detention was arbitrary, he continues to be deprived
of his liberty based on a conviction against which no remedies remain.
22.
The source claims that, to date, Mr. Martínez has been arbitrarily deprived of his
liberty for more than 12 years and 8 months.
Arguments and legal analysis of the source
23.
The source claims that Mr. Martínez’s detention is arbitrary and falls within categories
I, III and V. It indicates that Mr. Martínez was arrested by officers of the criminal
investigation police unit attached to the Office of the Attorney General of the Federal District
on 29 October 2008; no warrant had been issued for his arrest or apprehension, and he had
not been caught in the act of committing the offences with which he was charged. After his
arrest, he was placed in the custody of the prosecution authorities, who detained him on the
ground that his case allegedly called for the application of an emergency procedure.
24.
Subsequently, Mr. Martínez was brought before a criminal court of the Federal
District, which ordered that he be remanded in pretrial detention because the offence with
which he had been charged – kidnapping – was classified as a serious offence. A formal arrest
warrant was then issued, on the basis of which he remained deprived of his liberty until his
conviction became final. He was ultimately sentenced to 113 years in prison for two
kidnappings that he did not commit.
25.
Article 9 of the Covenant recognizes the right of every person not to be arbitrarily
deprived of his or her liberty. Paragraph 5 of that article provides that: “Anyone who has
been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.” The Human Rights Committee interpreted this article in its general comment
No. 35 (2014), in which it established that both liberty and security of person require special
protection because they have intrinsic value and because deprivation of liberty and security
of person have historically been means for impairing the enjoyment of other rights. States
parties to the Covenant therefore have an obligation to protect the liberty of individuals and
to prevent lawfully established entities from carrying out arbitrary detentions.
26.
Although the right to personal liberty is not absolute and the State may restrict this
right when doing so is justified, the power to restrict liberty that is vested in public authorities
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may not be exercised arbitrarily or in contravention of the principle of legality. Deprivation
of liberty may not be carried out without any justification, and no one may be deprived of his
or her liberty except on such grounds as are established by law and in accordance with
previously established due process.
27.
According to the source, the forms that arbitrary detention may take include detention
carried out with no justification whatsoever, even if there are legal precepts under which it
might be allowed in the abstract. The specific obligations for the protection of the right to
personal liberty that are assumed by States include the obligation to ensure that no one is
detained for longer than is strictly necessary and that there are effective mechanisms in place
for reviewing the proportionality of the duration of detention.
28.
States must ensure that, during detention, individuals enjoy other fundamental
safeguards, for example, that they have access to independent legal assistance and are
informed of their rights and, in criminal proceedings, of the charges against them. In the
specific case of criminal proceedings, persons deprived of liberty have the right to be brought
before a judge or other authorized official to establish the legality of their detention. This
must happen without delay, i.e., without exceeding the time reasonably necessary to bring
the detainee before a judicial authority.
29.
Moreover, pretrial detention must be a measure of last resort and may be used only
when it is proportional and strictly necessary. It may not be imposed automatically or as a
general rule. The right to personal liberty, which is linked to the right of access to an effective
judicial remedy, therefore requires States to establish adequate mechanisms for detainees to
challenge the restriction of their right to liberty on the grounds of its illegality and
arbitrariness and be provided with the appropriate remedy (release from detention). This
requires not only that an avenue of recourse must be formally established by law, but also
that this avenue must be sufficient to determine whether a person’s detention was unlawful,
arbitrary, or both, in which case a remedy must be provided. Lastly, deprivation of personal
liberty must be periodically evaluated to determine whether it remains justified.
30.
In the present case, the source claims that Mexico failed to comply with its obligations
under articles 2 (1) and (2) and 9 of the Covenant because it subjected Mr. Martínez to
arbitrary detention.
31.
The source notes that the Mexican legal system allows a person to be arrested only
under three circumstances: (a) pursuant to an arrest warrant; (b) in cases of flagrante delicto;
and (c) in emergency cases. In the present case, it is claimed that Mr. Martínez was arrested
without a warrant for his arrest or apprehension having been issued; that he had not been
caught in the act of committing an offence; and that the Supreme Court of Justice found that
the constitutional requirements for his arrest to be classified as an emergency situation had
not been met. Accordingly, the source claims that Mexico violated article 9 (1) of the
Covenant, since Mr. Martínez’s arrest was not carried out in accordance with the legally
established procedure. In addition, the source claims that Mr. Martínez was not immediately
informed of the reasons for his arrest or the charges against him, in violation of article 9 (2)
of the Covenant.
32.
The source adds that Mr. Martínez was unjustifiably detained for at least 10 hours,
from the moment of his arrest on 29 October until 4.10 a.m. the following day. The detention
lasted longer than was strictly necessary, since Mr. Martínez was not promptly brought before
the supervisory authority but was instead brought before that authority only after various
investigative measures had been carried out and after he had been subjected to acts of torture.
33.
The source notes that the Supreme Court found that Mr. Martínez had been held
incommunicado and placed outside the protection of the law for longer than strictly
necessary. These facts reveal a violation of article 9 (3) of the Covenant. In addition,
incommunicado detention violates detainees’ right to challenge the legality of their detention
before a judge. The combination of the fact that the arrest was carried out without a warrant
and the fact that Mr. Martínez was not promptly brought before a judge is deemed to be
particularly serious. These two facts of the case, which were recognized by the Supreme
Court, lead the source to conclude that the detention of Mr. Martínez is arbitrary under
category I.
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34.
The source also claims that, after his arrest, Mr. Martínez was subjected to acts of
torture, was presented by the Attorney General to the media as the leader of a kidnapping
gang and was not provided with legal assistance or representation either when called upon to
make a statement concerning the facts of the case and the offence with which he had been
charged or when he was made to take part in an identification procedure in a Gesell chamber.
The source claims that these acts amount to serious violations of the right to a fair trial and
that Mr. Martínez’s detention was therefore also arbitrary under category III.
35.
Moreover, on the basis of provisions established in the Constitution, Mr. Martínez
was subject to automatic pretrial detention because the offence with which he had been
charged is classified as a serious offence. In other words, pretrial detention was imposed as
an automatic measure, without being based on any legal reasoning and without an
individualized analysis of the proportionality and necessity of remanding Mr. Martínez in
custody.
36.
According to the source, the imposition of pretrial detention as a general rule in cases
that are legally classified as serious is particularly grave, not only because it violates article
9 (3) of the Covenant, but also because in Mexico there exists a policy of coercing defendants
into pleading guilty. The imposition of pretrial detention as a general rule in certain cases
results in the unauthorized deprivation of liberty of a large number of innocent people, who
are detained simply because the authorities accuse them of having committed an offence that
features on the list of offences warranting automatic pretrial detention. The source recalls
that:
The imposition of automatic pretrial detention for certain offences nullifies the
presumption of innocence, since persons accused of such offences are automatically
detained without a balanced consideration of restrictive measures other than
deprivation of liberty that may be used as alternatives to imprisonment. The Working
Group wishes to emphasize that international rules, in particular article 9 (3) of the
Covenant, do not preclude the imposition of pretrial detention for serious offences.
However, these rules require that such detention be imposed only after a judicial
authority has conducted an individualized review of the situation in question.2
37.
Mr. Martínez was charged with an offence that warrants automatic pretrial detention,
which meant that he was unable to benefit from alternative measures such as release on bail
and was subjected to a regime that imposed a distinction, exclusion and restriction against
him with the effect or purpose of nullifying the possibility of his regaining freedom while he
awaited sentencing. According to the source, the facts described above render Mr. Martínez’s
detention arbitrary under category V.
38.
Despite the existence of rulings and evidence that demonstrate that Mr. Martínez was
arbitrarily detained, and despite the fact that his defence counsel exhausted all possible
ordinary and extraordinary means of challenging his conviction, no authority provided Mr.
Martínez with an adequate remedy for the human rights violations that he had suffered, given
that his release was never ordered. The source claims that this situation constitutes a violation
of article 9 (5) of the Covenant.
39.
In this regard, the source claims that it is a serious failing on the part of the Supreme
Court to have neglected to assess the legal effects that should be triggered by the recognition
of a violation of the right to personal liberty and, specifically, the recognition that Mr.
Martínez had been arbitrarily detained. The Supreme Court failed to order that adequate
reparation be provided in accordance with international standards, inasmuch as it did not
order Mr. Martínez’s release, despite having determined that he was the victim of arbitrary
detention.
40.
According to the source, the events described above also constitute a violation of
international fair trial standards and a form of discrimination. The Supreme Court of Justice
itself has noted, in a similar case, that the appropriate remedy in such situations is to order
the release of the person concerned:
2 A/HRC/WGAD/2018/1, para. 64.
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If the police detain a person motu proprio, without a prior order from the Public
Prosecution Service justifying the urgent nature of the case, the prosecution authority
must declare the detention illegal once the person concerned has been brought before
it and must order that he or she be released immediately. The Public Prosecution
Service is also prohibited from admitting, considering or evaluating any piece of
evidence that has a direct link to or was obtained as a result of the illegal detention,
since this constitutes unlawfully obtained evidence.3
41.
The source considers that the fact that the Supreme Court of Justice did not order Mr.
Martínez’s release after having determined that he had been detained arbitrarily, despite the
fact that this is the internationally accepted form of reparation in such cases, constitutes a
form of discrimination that renders Mr. Martínez’s detention arbitrary under category V.
42.
The source claims that there has been no automatic review of Mr. Martínez’s custodial
sentence by the Mexican authorities to assess whether keeping him in prison is a reasonable
and proportional measure based on the existing body of evidence. The source highlights that
Mr. Martínez was sentenced to 113 years of imprisonment; given that he was 35 years old
when he was arrested, this means that Mr. Martínez would regain his freedom at 148 years
of age, while no possibility exists under domestic law for a review of his sentence. In this
regard, the source is of the view that the Working Group should establish that any prison
sentence that is excessive is, by its very nature, arbitrary.
43.
According to the source, it is clear that Mr. Martínez’s right to personal liberty and
the related safeguards under articles 2 (1) and (2) and 9 (1–5) of the Covenant have been
violated, given that: Mr. Martínez was deprived of his liberty in a manner that was not in
accordance with the applicable procedure established by law; he was not informed of the
reasons for his detention at the time of his arrest; he was kept in detention unlawfully,
inasmuch as he was not promptly brought before a judge; he was placed in pretrial detention
without an analysis of the proportionality and necessity of this measure; and, despite the fact
that the Supreme Court found that he had been arbitrarily and illegally detained, it did not
order his release or grant him reparation in accordance with international standards, i.e.
restitutio in integrum in respect of the violated right, including the re-establishment of his
situation prior to the violation, the elimination of the effects of the violation, compensation,
indemnity and access to an effective remedy.
Context and use of detention in Mexico
44.
According to the source, the national survey of persons deprived of their liberty4
published in 2017 reveals that during the six-year period from 2006 to 2012, more than
180,000 people were arrested. Of the arrests made during that period, more than 80,000 were
carried out without arrest warrants in circumstances marked by blatant injustice,
unpredictability and a lack of due process (for example, simply taking people away or
arresting bystanders). Moreover, the survey shows that more than 100,000 people claimed to
have been beaten during their arrest and before being brought before a judge or public
prosecutor.
45.
According to the source, data from the above-mentioned survey show that more than
65,000 people claimed to have been beaten after being brought before the Public Prosecution
Service. Psychological violence was also a serious problem during the period in question,
with more than 80,000 people reporting that they had been held incommunicado or in
isolation on the premises of the Public Prosecution Service, more than 70,000 saying that
they had been threatened with false charges and more than 80,000 claiming that they had
been tied up or had had their faces covered.
46.
The survey also reportedly indicates that almost 50,000 people were pressured by the
authorities to give an alternative version of the facts and more than 30,000 were questioned
in the absence of a lawyer. Moreover, the survey reveals that, at the national level, 50.2 per
3 Ruling handed down in amparo proceedings No. 3506/2014 by the First Chamber of the Supreme
Court of Justice.
4 National Survey of Population Deprived of Freedom 2016, National Institute of Statistics and
Geography. Available at https://www.inegi.org.mx/programas/enpol/2016/.
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cent of persons deprived of liberty in 2016 did not plead guilty and as many as 46.7 per cent
of those who did plead guilty did so under some form of undue influence.
47.
The source claims that the available evidence indicates that coercing defendants into
pleading guilty is a widespread practice in Mexico. Under the pretext of an abstract and
incessant threat to the security of the people and of the State itself, the idea of an internal
enemy that must be destroyed at all costs has been constructed. This policy has transformed
the core mandate of the police and public prosecutors into delivering observable and
spectacular results in the fight against the public enemy or in the campaign to suppress
whatever offence has been prioritized at that particular moment (kidnapping, organized
crime, narcotics offences, etc.) in order to convince the public that they are capable and
efficient institutions.
48.
The source claims that this coercion of defendants into pleading guilty is evidence of
the selective application of the rule of law, which has destroyed countless lives and,
moreover, attests to the existence of a State plan or policy to arbitrarily detain innocent
people, in flagrant violation of the fundamental norms of international law, with the aim of
inflating the number of arrests carried out in the context of the crisis associated with the lack
of security and the extreme level of violence in the country. The source argues that this
practice constitutes a crime against humanity.
49.
According to the source, there are currently no effective remedies in Mexico that
would allow the victims of arbitrary detention to regain their freedom. On the contrary, the
judicial authorities have developed standards that make it possible for the victims of arbitrary
detention and other serious human rights violations to be denied their freedom. In line with
these standards, all that is done is to exclude certain pieces of evidence that might be tainted
by the arbitrary detention from the legal proceedings, as has been done in the case of Mr.
Martínez.
50.
The source claims that the shortcomings of the justice system, deficient laws, a context
of impunity and a policy of coercing defendants into pleading guilty have made arbitrary
arrests and detention a daily reality, opening the door to further human rights violations,
including torture and other ill-treatment, enforced disappearances and extrajudicial
executions. The lack of an adequate public policy and efficient mechanisms to address this
crisis of human rights violations and impunity further aggravates the situation.
51.
The source concludes by noting that Mexico, through the Supreme Court, has already
recognized that Mr. Martínez was arbitrarily detained and convicted in an unlawful trial that
followed on from his detention. However, Mr. Martínez has not been provided with
appropriate relief, since he has not been released, despite the fact that he has exhausted all
domestic remedies.
Request for release and other forms of reparation
52.
In view of the above, the source requests that Mr. Martínez be released and granted
other appropriate forms of reparation, stressing that there are no further domestic remedies
or legal mechanisms or procedures that would allow Mr. Martínez to regain his freedom. The
source believes that, with a view to granting Mr. Martínez’s release and ensuring the effective
implementation of the Universal Declaration of Human Rights and the Covenant, the head of
the executive branch of the Federal Government should grant a pardon pursuant to article 97
bis of the Federal Criminal Code, since there is consistent evidence of serious human rights
violations in Mr. Martínez’s case.
Response from the Government
53.
In accordance with its methods of work, the Working Group transmitted the source’s
allegations to the Government of Mexico on 11 August 2021, requesting a response by 11
October 2021. The Working Group also requested the Government to provide detailed
information regarding the case of Mr. Martínez, to clarify the legal and factual basis for his
detention and to comment on its compatibility with the State’s international human rights
obligations.
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54.
The Working Group further requested the Government of Mexico to safeguard Mr.
Martínez’s physical and mental health. In the context of the global pandemic, and in
accordance with the World Health Organization recommendations concerning the response
to the 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.
55.
The Working Group regrets that the Government of Mexico did not respond to its
communication within the stated time limit.
Discussion
56.
In the absence of a response from the Government, the Working Group has decided
to render the present opinion, in conformity with paragraph 15 of its methods of work.
57.
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.5 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source.
58.
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 Covenant, 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 is entitled and obligated to 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.
Category I
59.
The Working Group received information from the source on the case of Mr.
Martínez, who was arrested on 29 October 2008, at approximately 6 p.m., at his place of
work in Mexico City, by officers of the criminal investigation police unit attached to the
Office of the Attorney General of the Federal District (now the Office of the Attorney General
of Mexico City).
60.
The source states that the arrest was conducted in the absence of an arrest warrant or
other court order. The authorities later claimed that the arrest had been carried out in line
with an “emergency case” procedure, as a witness had allegedly reported, earlier that day,
that Mr. Martínez had been involved in two kidnappings; the arrest had therefore been
conducted without a court order, corroborating evidence or any form of investigation or prior
authorization. The criminal investigation police arrested Mr. Martínez based solely on the
statement of an alleged witness, without informing him of the reasons for his arrest. At first,
Mr. Martínez noticed a lone person in plain clothes standing next to the door of the van in
which he was sitting; then, as he opened the door to the van, several other persons rushed
him and violently dragged him out of the vehicle. Mr. Martínez has said that he believed that
he was being assaulted, robbed or kidnapped. The police officers put Mr. Martínez in a
private vehicle and took him to an unidentified waste ground.
61.
The source claims that, in this waste ground, Mr. Martínez was tortured: plastic bags
were placed over his head, he received blows to the ribs and electric shocks were applied to
his testicles, among other methods. The torture was allegedly intended to coerce Mr. Martínez
into declaring that he recognized several people whose photographs were shown to him and
admitting to having participated in two kidnappings.
5 A/HRC/19/57, para. 68.
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62.
According to the information received by the Working Group, after being subjected
to five hours of torture intended to make him incriminate himself, Mr. Martínez was taken to
the premises of the then Central Investigations Unit of the Prosecution Service. There he was
again beaten in an effort to force him to admit to participating in the kidnappings. Mr.
Martínez’s torture thus continued beyond those first five hours, extending into his time in the
custody of the Public Prosecution Service.
63.
On 30 October 2008, at 4.10 a.m., the Public Prosecution Service declared that Mr.
Martínez was being held in connection with an alleged emergency case. That same day he
gave a statement to the public prosecutor in which he pleaded guilty to the charges against
him.
64.
Furthermore, the Public Prosecution Service presented Mr. Martínez to the media as
a member of a kidnapping gang, questioned him on multiple occasions and forced him to
take part in an identification procedure in a Gesell chamber in the absence of defence counsel.
65.
As the Working Group has previously stated, in order for deprivation of liberty to
have a legal basis, it is not sufficient simply for there to be a law pursuant to which the arrest
might be made. The authorities must invoke that legal basis and apply it to the circumstances
of the case by means of an arrest warrant. The provisions of international law on deprivation
of liberty include the right to be presented with an arrest warrant, which is a procedurally
inherent component of the right to liberty and security of person and the prohibition of
arbitrary detention under articles 3 and 9 of the Universal Declaration of Human Rights,
article 9 of the Covenant and principles 2, 4 and 10 of the Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment.
66.
Any form of detention or imprisonment should be ordered by a judicial or other
authority in keeping with the law or be subjected to the effective control of this authority,
whose status and mandate should afford the strongest possible guarantees of competence,
impartiality and independence in accordance with the Body of Principles for the Protection
of All Persons under Any Form of Detention or Imprisonment.
67.
The Working Group is concerned that Mr. Martínez was disappeared, detained
without charge and tortured over a timespan of nearly 24 hours. The Working Group recalls
that legal safeguards against arbitrary deprivation of liberty, as set out in article 9 of the
Universal Declaration of Human Rights and article 9 of the Covenant, require that anyone
arrested or detained on a criminal charge be brought promptly before a judge to exercise his
or her rights and present his or her defence before the courts. As the Human Rights
Committee has noted, 48 hours is sufficient to satisfy the requirement of bringing a detainee
“promptly” before a judge or other officer authorized by law following his or her arrest; any
delay longer than that must remain absolutely exceptional and be justified under the
circumstances.6 The Working Group finds that Mr. Martínez was not brought promptly
before a judicial authority and that no legal basis for his detention was established, in
violation of article 9 of the Universal Declaration of Human Rights and article 9 of the
Covenant. In view of the above, the Working Group refers the present case to the Working
Group on Enforced or Involuntary Disappearances.
68.
In accordance with the United Nations Basic Principles and Guidelines on Remedies
and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings
Before a Court, the right to challenge the lawfulness of detention before a court is a self-
standing human right, the absence of which constitutes a human rights violation.7 The State
must ensure the effective exercise of this fundamental safeguard of personal liberty in all
situations of deprivation of liberty, without delay and without exception, since it is essential
to preserve legality in a democratic society.8 That right, which is in fact a peremptory norm
of international law, applies to all forms of deprivation of liberty, including not only detention
for the purposes of criminal proceedings but also situations of detention under administrative
and other fields of law, including military detention, security detention and detention under
6 General comment No. 35 (2014), para. 33. See also opinions No. 6/2017, No. 30/2017, No. 49/2019,
No. 60/2020 and No. 66/2020.
7 A/HRC/30/37.
8 Ibid., paras. 2 and 3.
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GE.22-01088
11
counter-terrorism measures.9 Moreover, it also applies irrespective of the place of detention
or the legal terminology used in the legislation.10 Any form of deprivation of liberty on any
ground must be subject to effective oversight and control by the judiciary. According to the
source, these rights were denied on several occasions during Mr. Martínez’s detention, trial
and sentencing.
69.
In conclusion, the Working Group is convinced that the pretrial detention of Mr.
Martínez constitutes a violation of the rule of international law which provides that pretrial
detention should be an ultima ratio precautionary measure, which means that it should be the
exception rather than the rule and should be adopted only as a last resort and only
exceptionally. Moreover, it must be of short duration – that is, imposed for the shortest
possible period of time.11 Article 9 (3) of the Covenant requires that the justification for
pretrial detention be analysed in a reasoned judicial decision in every case. According to the
source, this did not occur in the case of Mr. Martínez. The Working Group wishes to
emphasize that the automatic imposition of pretrial detention, without an individualized
consideration of its necessity and proportionality in the specific case, is considered arbitrary
and contrary to article 9 (3) of the Covenant, as it makes the use of pretrial detention a rule
rather than an exception made in the interests of justice.
70.
The Working Group notes with concern that, in cases involving Mexico, detainees
have clearly stated that they were not shown an arrest warrant or informed of the reasons for
their arrest; moreover, the legal concepts of “automatic pretrial detention” and “emergency
cases” have been given constitutional status. It therefore concludes that non-compliance with
detention procedures constitutes a systemic problem in Mexico. The Working Group notes
that no State may engage in activities that extinguish the rights and freedoms recognized in
the Covenant, including the right not to be subjected to arbitrary detention or torture.
71.
In the light of the foregoing, the Working Group is of the view that the detention of
Mr. Martínez was arbitrary, in violation of articles 9, 10 and 11 of the Universal Declaration
of Human Rights and article 9 of the Covenant, and falls within category I.
Category III
72.
With regard to category III and respect for due process, the Working Group notes that,
in the present case, the fundamental rules of a fair, independent and impartial trial have not
been observed, since, following Mr. Martínez’s arrest, and after the Public Prosecution
Service had illegally and arbitrarily obtained evidence, the Office of the Attorney General of
the Federal District brought criminal proceedings against Mr. Martínez on 30 October 2008.
On that basis, he stood trial before the Forty-seventh Criminal Court of the Federal District,
which sentenced Mr. Martínez to 146 years in prison and ordered him to pay a fine.
73.
According to the source, the authorities justified the actions of the Public Prosecution
Service on the ground that they took place within the context of an “emergency case”, the
declaration of which is provided for by article 16 of the Constitution and article 268 of the
Code of Criminal Procedure of the Federal District. The power of emergency arrest allows
the Public Prosecutor Service to order the arrest of a person without a court order; however,
by law, the Service must prove that three criteria have been met, namely that: (a) the case
involves a serious offence; (b) there is a substantiated risk that the suspected perpetrator
might abscond; and (c) the Public Prosecution Service cannot apply for prior authorization
from the judicial authorities owing to the time, place or other circumstances. However, when
exercising this power, the Public Prosecution Service is required to issue a decision prior to
the arrest justifying and substantiating its course of action to a high standard of proof. When
Mr. Martínez filed an appeal before the Supreme Court of Justice, the Court found that his
case did not meet the required criteria for classification as an “emergency case”.
74.
The Working Group notes that the standards of due process and the right to a fair and
impartial trial have been violated, not only because the obligation to grant and enforce the
9 Ibid., para. 47 (a).
10 Ibid., para. 47 (b).
11 A/HRC/19/57, paras. 48–58; opinions No. 5/2019, para. 26, and No. 62/2019, paras. 27–29; and
A/HRC/37/6, paras. 118.31–118.33.
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legal remedies guaranteed by law was breached, but also because of the failure to heed the
ruling of the Supreme Court of Justice, which found that Mr. Martínez had been arbitrarily
detained but did not order that he be released and granted adequate reparation in accordance
with international standards. This decision prevented Mr. Martínez from exercising his rights
as a victim of unlawful detention, in accordance with articles 3 and 9 of the Universal
Declaration of Human Rights, articles 9 and 14 of the Covenant and principle 32 of the Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.
In view of these circumstances, the Working Group is referring this case to the Special
Rapporteur on the independence of judges and lawyers.
75.
The Working Group also notes that Mr. Martínez was held incommunicado and
tortured for 24 hours, despite the fact that both the Working Group and other human rights
mechanisms have stated that holding individuals incommunicado violates their right to
challenge the lawfulness of their detention before a court in accordance with article 9 (3) and
(4) of the Covenant. Moreover, the Working Group recalls that solitary confinement is a
violation of article 9 (4) of the Covenant and the right to an effective remedy under article 2
(3) of the Covenant and article 8 of the Universal Declaration of Human Rights. Judicial
oversight of detention is a fundamental safeguard of personal liberty and is essential in order
to ensure that detention has a legal basis.
76.
Given that Mr. Martínez was unable to challenge his detention before a court, his right
to an effective remedy under article 8 of the Universal Declaration of Human Rights and
article 2 (3) of the Covenant has been violated.12 In view of the serious circumstances of Mr.
Martínez’s situation and its consequences in terms of the legal safeguards due to him and his
trial, the Working Group hereby decides to refer this case to the Working Group on Enforced
or Involuntary Disappearances and to the Special Rapporteur on torture and other cruel,
inhuman or degrading treatment or punishment.
77.
Moreover, the Public Prosecution Service cannot be considered to be a judicial
authority for the purposes of article 10 of the Universal Declaration of Human Rights and
therefore fails to fulfil this essential judicial function in the preparatory phase of criminal
proceedings, especially when it denies remedies proposed by the detainee. In addition, the
Working Group has established that, in the area of criminal law, when coercive measures are
imposed, the right to defend oneself must be guaranteed during all phases of the proceedings.
This requires equality of arms for both the prosecution and the person charged. In order to
ensure this equality, the legal system must provide for a separation between the authority
driving the investigation and the authorities in charge of the detention and ruling on the
conditions of the pretrial detention. This separation is a necessary requirement to prevent
conditions of detention from being used to impair the effective exercise of the right to defend
oneself, favour self-incrimination or allow pretrial detention to amount to a form of advance
punishment.13
78.
Furthermore, according to the source, the Public Prosecution Service presented Mr.
Martínez to the media as a member of a kidnapping gang, questioned him on multiple
occasions and forced him to take part in an identification procedure in a Gesell chamber in
the absence of defence counsel. The Working Group and the Human Rights Committee are
of the view that public authorities should refrain from prejudging the outcome of a trial by
abstaining from making public statements affirming the guilt of the accused. In the present
case, the Working Group is of the view that the Public Prosecution Service has breached this
obligation. The public presentation of Mr. Martínez prior to his trial seriously violated his
right to be presumed innocent under articles 10 and 11 of the Universal Declaration of Human
Rights and article 14 (2) of the Covenant.
79.
The Working Group has been informed by the source that Mr. Martínez was subjected
to torture for 24 hours by the Public Prosecution Service and its agents with the purpose of
coercing him into pleading guilty to the offence of which he was accused. These statements
convince the Working Group that the source has made a prima facie case that Mr. Martínez
was subjected to torture and ill-treatment. This conduct violates the absolute prohibition of
12 Opinions No. 45/2017, No. 46/2017, No. 79/2017, No. 11/2018 and No. 35/2018.
13 E/CN.4/2005/6, para. 79.
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13
torture as a peremptory norm of international law, article 5 of the Universal Declaration of
Human Rights, article 7 of the Covenant and articles 2 and 16 of the Convention against
Torture, for which reason the Working Group is referring the present case to the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment.
80.
The Working Group also notes that Mr. Martínez issued a self-incriminating statement
in the absence of legal counsel, was not assigned legal representation nor assisted by legal
counsel during his detention or trial and did not receive legal advice regarding the illegality
of obtaining evidence under torture and the inadmissibility at trial of evidence obtained in
such a way. The Working Group is of the view that the right of all persons charged with an
offence to have adequate time and facilities to prepare their defence and to communicate with
a lawyer of their choosing is vital in order to ensure that the trial can be considered fair and
impartial. In the present case, this right, which is enshrined in article 14 (3) (b) of the
Covenant, has also been violated in the case of Mr. Martínez, since he was denied equality
of arms at trial.
81.
The Working Group recalls that article 9 of the Universal Declaration of Human
Rights provides that no one may be subjected to arbitrary arrest, detention or exile; that
deprivation of liberty is not only a question of legal definition, but also of fact; and, as stated
by the Human Rights Committee in its general comment No. 35 (2014), detention must be
justified as reasonable, necessary and proportionate in light of the circumstances and must be
reassessed as it extends in time. It must not be punitive in nature and should be based on an
individual assessment of each person’s case.14
82.
In view of the foregoing, it is unacceptable and in violation of the principles of a fair
and impartial trial that Mr. Martínez was given a custodial sentence of 113 years’
imprisonment without any possibility under domestic law for an effective review of the entire
procedure that led to this prison sentence. In this regard, the Working Group is of the view
that a penalty as excessive as the one imposed in the present case is, by nature, arbitrary.
83.
The Working Group has carefully examined the information submitted by the source
concerning the situation that Mr. Martínez endured during his detention and trial and recalls
that, in the determination of any criminal charges, the right to a fair and public hearing by a
competent, independent and impartial tribunal established by law is guaranteed by article 14
of the Covenant.
84.
The source has analysed and presented to the Working Group information regarding
several remedies and appeals filed on behalf of Mr. Martínez, which were systematically
denied, resulting in a conviction carrying a sentence of 113 years of imprisonment. This
sentence was issued despite the existence of legal contradictions, the intervention of the
Public Prosecution Service, the lack of witnesses, allegations of torture, insufficient and
unlawful use of evidence and dismissal on the part of all national legal bodies, recourse to
which has been exhausted. In view of these circumstances, the Working Group is referring
the case to the Special Rapporteur on the independence of judges and lawyers.
85.
The Working Group therefore concludes that, in the present case, the violations of the
rights to due process and to a fair trial that have been committed are of such gravity as to
render Mr. Martínez’s detention arbitrary under category III.
Category V
86.
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 notes that the
detention of Mr. Martínez was ordered pursuant to article 19 of the Constitution and other
Mexican laws that provide for the automatic detention of a specific group of individuals
accused of certain offences, causing them to be treated in a disproportionately discriminatory
manner. In accordance with its jurisprudence, the Working Group is therefore of the view
that, as the detention of Mr. Martínez involves violations of articles 1, 2 and 7 of the Universal
14 Opinion 42/2017, para. 36.
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Declaration of Human Rights and articles 2 and 26 of the Covenant, it is also arbitrary under
category V.15
Concluding remarks
87.
The present case is one of many submitted to the Working Group in recent years in
connection with arbitrary deprivation of liberty in Mexico. The Working Group 16 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.17
88.
The Working Group would welcome the opportunity to engage constructively with
the Government in addressing its concerns surrounding the arbitrary deprivation of liberty.
Given that a significant length of time has elapsed since its last visit to Mexico, in November
2002, the Working Group deems now to be an appropriate time to conduct another visit to
the country. In March 2001, the Government issued a standing invitation to all thematic
special procedure mandate holders. As Mexico currently holds the Presidency of the Security
Council, this would be a suitable time for the Government to reaffirm its standing 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
89.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Hugo Martínez Gorostieta, being in contravention
of articles 3, 5, 8, 9, 10, 11 and 12 of the Universal Declaration of Human Rights and
articles 2, 7, 9, 10 and 14 of the International Covenant on Civil and Political Rights,
is arbitrary and falls within categories I, III and V.
90.
The Working Group requests the Government of Mexico to take the steps necessary
to remedy the situation of Mr. Martínez 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.
91.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Martínez immediately and accord him
an enforceable right to compensation and other reparations in accordance with international
law.
92.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Martínez, including the allegations that he was tortured, and to take appropriate measures
against those responsible for the violation of his rights. In the current context of the global
COVID-19 pandemic and the threat that it poses in places of detention, the Working Group
calls upon the Government to take urgent action to ensure his immediate release.
93.
The Working Group respectfully reminds the Government of Mexico of the
interpretative statement issued by Mexico regarding article 9 (5) of the Covenant, which
establishes that, under the Political Constitution of the United Mexican States and the relevant
implementing legislation, every individual enjoys the guarantees relating to penal matters
embodied therein, and consequently no person may be unlawfully arrested or detained.
However, if by reason of false accusation or complaint any individual suffers an infringement
of this basic right, he or she has, inter alia, under the provisions of the appropriate laws, an
15 Opinions No. 1/2018 and No. 35/2021.
16 Opinions No. 18/2015, No. 19/2015, No. 55/2015, No. 56/2015, No. 17/2016, No. 58/2016, No.
23/2017, No. 24/2017, No. 65/2017, No. 66/2017, No. 1/2018, No. 16/2018, No. 53/2018, No.
75/2018, No. 88/2018, No. 14/2019, No. 54/2019, No. 64/2019, No. 24/2020 and No. 28/2020.
17 Opinion No. 47/2012, para. 22.
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15
enforceable right to just compensation. The Working Group therefore considers that there are
additional grounds for compensation under the State party’s laws.
94.
In accordance with paragraph 33 (a) of its methods of work, the Working Group is
referring the present case to the Special Rapporteur on the independence of judges and
lawyers, the Special Rapporteur on torture and other cruel, inhuman or degrading treatment
or punishment and the Working Group on Enforced or Involuntary Disappearances for
appropriate action.
95.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
96.
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. Martínez has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Martínez;
(c)
Whether an investigation has been conducted into the violation of Mr.
Martínez’s rights and, if so, the outcome of that 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.
97.
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.
98.
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.
99.
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.18
[Adopted on 17 November 2021]
18 Human Rights Council resolution 42/22, paras. 3 and 7.