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A/HRC/WGAD/2022/1

Opinion No. 1/2022 concerning Andrew Armando Córdova (Mexico)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2022-04-08 · en UN

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.22-08069 (E) 160123 170123

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its ninety-third session, 30 March–8 April 2022

Opinion No. 1/2022 concerning Andrew Armando Córdova (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,1 on 26 November 2021 the Working Group

transmitted to the Government of Mexico a communication concerning Andrew Armando

Córdova. The Government replied to the communication on 20 January 2022. 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/2022/1

General Assembly

Distr.: General

27 May 2022

English

Original: Spanish

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Submissions

Communication from the source

4.

Andrew Armando Córdova is a national of the United States of America habitually

resident in Tijuana, Baja California, Mexico. At the time of his arrest, he was 21 years old.

He is now 35 years old.

5.

According to the information received, Mr. Córdova was arrested on Saturday, 26

April 2008 at the Red Cross hospital in Tijuana, where he went to seek and receive first aid

after being shot and wounded in the street.

6.

The source explains that, on that day, Mr. Córdova was driving on the Boulevard

Insurgentes when police officers stopped him and asked him to get out of his vehicle for a

routine check. As Mr. Córdova was complying with that order, there was an exchange of fire

and he sustained two gunshot wounds: one to the abdomen and one to the back of the left

hand. He took cover from the gunfire for about 10 minutes and was then able to get a taxi to

take him to the Red Cross hospital in Tijuana.

7.

After receiving the necessary first aid at the Red Cross hospital, Mr. Córdova was

informed by medical staff that the bullet wound to his left hand would require reconstructive

surgery. It was then that a municipal public security officer reportedly asked the staff for the

patient’s name and, upon being told that it was Mr. Córdova, ordered that he be placed on a

gurney, which other officers then used to remove the patient from the hospital. Mr. Córdova

was thus detained without being informed of the reasons for his arrest. He was not allowed

to contact his family or a consular representative of his country. He was transferred to the

General Hospital, where he remained handcuffed and under surveillance at all times, without

being able to contact his family, his consulate or his lawyer. The source alleges that all this

was done without informing Mr. Córdova of the reasons for the deprivation of his liberty and

without showing a warrant for his capture, arrest or detention.

8.

The source indicates that there is no record in the case file of his arrest at the Red

Cross hospital or of the grounds for the arrest. The public prosecutor indicated that Mr.

Córdova was arrested upon entering the General Hospital, which the source claims is false.

9.

The source claims that the grounds for the arrest were given subsequently as flagrante

delicto, under article 16 of the Constitution, which establishes that any person may arrest a

suspect at the time of or immediately after the commission of an offence and must hand him

or her over without delay to the nearest authorities, which must equally promptly bring the

suspect before the Public Prosecution Service. However, the source states that Mr. Córdova

was arrested while he was being treated for gunshot wounds at the Red Cross hospital in

Tijuana and that the authorities assumed that he had participated in unlawful acts.

10.

According to the information received, on 26 April 2008, at 11.10 p.m., the Public

Prosecution Service issued a decision in which it deemed the detention of Mr. Córdova to be

lawful.

11.

The source alleges that, on 27 April 2008, Mr. Córdova was transferred from the

General Hospital to the Aguaje de la Tuna facility of the Twenty-eighth Infantry Battalion,

where he was tortured physically and psychologically. He was held incommunicado for three

days and was not provided with a defence lawyer or informed of his rights. Officers at the

facility forced Mr. Córdova to sign several documents containing self-incriminating

statements. The source claims that it was subsequently proved, in an expert opinion, that the

only co-defendant to have made an accusation against Mr. Córdova had been forced under

torture to incriminate him.

12.

The following day, 28 April 2008, Mr. Córdova was transferred to the premises of the

Attorney General’s Office in Tijuana, where the Public Prosecution Service assigned him a

public defender. He remained in custody there for two days, until 30 April 2008. On 1 May

2008, he was transferred to a preventive custody unit in Mexico City, where he remained

until 20 July. He was subsequently imprisoned in Federal Social Rehabilitation Centre No. 1

(“Altiplano”); Federal Social Rehabilitation Centre No. 8 (“Norponiente”) in Guasave; and

Federal Social Rehabilitation Centre No. 11 (“CPS-Sonora”) in Hermosillo, where he is

currently held, after 13 years in pretrial detention.

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13.

The source indicates that on 18 July 2008, after Mr. Córdova had been detained for

almost three months, the Thirteenth District Court of Baja California issued an arrest warrant

on the grounds of alleged flagrante delicto. According to the source, the Court issued the

arrest warrant on the basis of information provided by the Municipal Public Security

Department and in the report of the investigative police force, namely the presumption that

Mr. Córdova had participated in criminal acts because he was among those people who had

been wounded at the scene of an armed confrontation in which several people lost their lives.

The authorities assumed that Mr. Córdova was guilty because two Red Cross first-aid

workers supposedly took him to the General Hospital, which the source claims is false. Based

on circumstantial evidence, it was presumed that a group of co-defendants including Mr.

Córdova had been involved in the offences of possession, use and stockpiling of firearms

reserved for the exclusive use of the army, navy and air force; vehicle theft committed abroad;

violation of the Federal Act on the Prevention of Organized Crime; and aggravated homicide

using a firearm. Based on articles 106, 108 and 123 of the Baja California State Code of

Criminal Procedure, the judge declared the arrest to be lawful as it had occurred within 72

hours of the offence.

14.

The source contends that, for the past 13 years, the proceedings against Mr. Córdova

have entailed a struggle against the judicial system – a struggle in which he himself had to

learn the law in order to defend himself. The court-appointed public defence has proved

woefully inadequate; Mr. Córdova’s family had to request that the public defender be

replaced because she was not attached to the court that was hearing Mr. Córdova’s case and

did not have time to attend to it.

15.

Hearings have been held and motions and appeals filed, yet Mr. Córdova continues to

be detained without a first-instance judgment. In 2019, the court which initially heard the

case, the Sixth District Court for Federal Criminal Proceedings of the State of Mexico,

ordered the release on bail of Mr. Córdova and his co-defendants. The judge argued that they

had already been imprisoned for 11 years, whereas they had been charged with organized

crime offences carrying a maximum sentence of 8 years. However, Mr. Córdova and his co-

defendants remain in prison on homicide charges.

16.

The homicide case is currently at the investigation stage before the Fourth Criminal

Court of Tijuana, it having taken three months to reassign the case after the recent closure of

the Fifth Criminal Court. When the case came before the Fourth Criminal Court, Mr. Córdova

requested a review of the precautionary measures and their substitution for house arrest, since

he had been in pretrial detention for 11 years, while the Constitution sets a maximum of 2

years, regardless of the seriousness of the offence. However, this request has had no effect.

17.

The source alleges that Mr. Córdova’s detention by the Mexican authorities at the Red

Cross hospital in Tijuana was arbitrary, as they did not have an arrest warrant. Mr. Córdova

was deprived of his liberty on suspicion of having committed punishable acts in the early

hours of that day simply because he had sustained gunshot injuries. At the time of the arrest,

there was no evidence to suggest to the authorities that Mr. Córdova had previously

committed any offence or that he was committing a flagrant offence.

18.

The source emphasizes that the Supreme Court2 has ruled that the authorities must

carefully indicate the information on the facts and circumstances in their possession at the

time of the arrest that led them to suspect that the person in question was committing an

offence, and, if this was not the case, whether the affected person had authorized a check or

search. The Supreme Court held that “in matters of liberty of person, the State may not limit

the enjoyment of this right except in the situations foreseen expressly in the Constitution”.

One such situation is that of flagrant offences, meaning those offences which are evident and

unmistakable by any reckoning. Thus, the existence of a flagrant offence is a prerequisite for

detention, from which it follows that, unless they have an arrest warrant, the authorities do

not have the power to arrest persons merely on the suspicion that they may be committing an

offence, that they are about to commit an offence, or on the presumption that they may be

involved in committing an offence, nor to detain them pending investigation.

2 Direct amparo appeal No. 1596/2014, judgment of 3 September 2014.

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19.

Nevertheless, the Public Prosecution Service ignored these circumstances, arguing

that Mr. Córdova had been arrested in flagrante delicto because he was caught immediately

upon being admitted to the General Hospital with gunshot wounds, which the source claims

to be false. The case file shows that the investigative police officers indicated, in their

statement of 5 October 2016, that they were unaware of the above-mentioned events and did

not detain any person in connection with them, having arrived at the Red Cross hospital 24

hours after they had taken place.

20.

The Public Prosecution Service stated that Mr. Córdova was presumed to have

participated in the criminal acts because he was taken to hospital, together with other people

with gunshot wounds, by Red Cross paramedics, which the source denies. According to the

paramedics’ statements and a photograph recognition test, Mr. Córdova does not appear to

have been one of the persons who was transferred from the scene of the incident. The source

contends that witnesses saw Mr. Córdova entering the Red Cross hospital unaided and that

Public Prosecution Service officials falsified the facts and circumstances of Mr. Córdova’s

arrest and detention so that this detention might be deemed lawful, despite the fact that he

was admitted to the General Hospital after having been detained by the security officers who

transferred him from the Red Cross hospital. Furthermore, while in the custody of the Public

Prosecution Service, Mr. Córdova was not provided with a defence lawyer to assist him until

two days after his arrest.

21.

The source claims that the Constitution and national legislation outlaw the detention

of persons suspected of having committed an offence and detention pending investigation.

The source submits that Mr. Córdova’s right to a fair and impartial trial, recognized in articles

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

has not been respected.

22.

Regarding the steps taken and remedies exercised at the domestic level to challenge

the lawfulness of the detention, the source reports that Mr. Córdova, despite having been

detained for 13 years and prosecuted in a criminal trial, was only recently given access to the

case file, which is voluminous. As a result, Mr. Córdova’s family has detected several

irregularities, which have been ignored by the defence lawyer. Motions have been filed for a

review of the precautionary measure of pretrial detention.

23.

Furthermore, on 19 December 2020 and 16 March 2021, complaints were filed with

the National Human Rights Commission describing the procedural irregularities and lack of

timely consular assistance and demonstrating that torture occurred at the time of arrest. In

this regard, Mr. Córdova did not avail himself of the opportunity to undergo an examination

in conformity with the Manual on the Effective Investigation and Documentation of Torture

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

has not had an adequate defence and was poorly advised.

Response from the Government

24.

The Working Group transmitted the source’s allegations to the Government of Mexico

on 26 November 2021. The Working Group requested the Government to provide detailed

information regarding the case of Mr. Córdova, to clarify the legal and factual grounds for

his detention and to explain how it was in compliance with the international human rights

obligations of Mexico. The Working Group also requested the Government to protect Mr.

Córdova’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.

25.

The Government submitted its response on 20 January 2022. It informed the Working

Group that Mr. Córdova was arrested on Saturday, 26 April 2008 at the Red Cross hospital

in Tijuana, where he had gone to seek and receive first aid after being shot and wounded in

the street. The Government considers that Mr. Córdova was arrested in flagrante delicto, as

was confirmed by the Public Prosecution Service that same day, 26 April 2008.

26.

The Government states that Mr. Córdova was transferred to the Attorney General’s

Office in Tijuana on 28 April 2008, where the Public Prosecution Service assigned him a

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public defender and he remained in custody for two days. On 1 May 2008, he was transferred

to a preventive custody unit in Mexico City, where he remained until 20 July 2008.

27.

The Government reports that on 17 July 2008, a federal prosecutor opened a

preliminary investigation into Mr. Córdova, among others, as the likely perpetrator of

organized crime offences, namely the stockpiling and trafficking of firearms, possession of a

vehicle stolen abroad, concealment of vehicle theft abroad, intentional homicide, and

carrying a firearm reserved for the exclusive use of the army, navy and air force.

28.

The First District Court for Federal Criminal Proceedings of the State of Mexico,

assigned by rotation to hear the case, received the accused’s preliminary statement and on 23

July 2008 ordered that he be committed to custody for organized crime offences, intentional

homicide and carrying a firearm reserved for the exclusive use of the army, navy and air

force. The Court also ordered Mr. Córdova’s release, for lack of evidence to proceed under

the conditions provided for by law, in connection with various arms-related offences,

including the stockpiling of firearms reserved for the exclusive use of the army, navy and air

force.

29.

The Government reports that Mr. Córdova was held at Federal Social Rehabilitation

Centre No. 1 (“Altiplano”), before being transferred to Federal Social Rehabilitation Centre

No. 8 (“Norponiente”) in Guasave and subsequently to Federal Social Rehabilitation Centre

No. 11 (“CPS-Sonora”) in Hermosillo, where he is currently being held, after almost 14 years

in mandatory pretrial detention.

30.

The Government reports that the Office of the Special Prosecutor for Regional

Oversight, attached to the Attorney General’s Office, reporting on Mr. Córdova’s legal

situation, stated that his detention had been ordered by the Public Prosecution Service under

ordinary law on 26 April 2008, based on articles 106, 123 and 208 bis of the Baja California

Code of Criminal Procedure.

31.

The Government has listed several pieces of evidence, including the results of a

sodium rhodizonate test that, according to the Attorney General’s Office, revealed gunshot

residue, conclusively proving that Mr. Córdova had actively participated in an incident in

which 13 people lost their lives.

32.

The Government reports that the Federal Prosecution Service, in accordance with the

Constitution (arts. 16, 21 and 102), the Federal Code of Criminal Procedure (arts. 102, 123,

193 and 194), the Federal Act on the Prevention of Organized Crime (arts. 1, 2, 7, 8, 72, 73,

194 bis and others relating to the Federal Code of Criminal Procedure), the Organic Act on

the Office of the Attorney General of the Republic (arts. 2 and 4) and the regulations

implementing the Organic Act on the Office of the Attorney General of the Republic (arts. 1,

2, 27 and 28), decided that the constitutional time limit for resolving Mr. Córdova’s legal

situation would be doubled, since the facts of the case related to organized crime. On 28 April

2008, Mr. Córdova was notified of this decision in person and informed of his rights and the

benefits available to him under various legal instruments. These steps were taken in the

presence of a federal public defender, who was also present, on the same date, when Mr.

Córdova made a statement before the Attorney General’s Office in which he acknowledged

his participation in acts related to the incident that claimed the lives of 13 people, without

mentioning any acts of torture committed against him.

33.

The Government maintains that on 29 April 2008, the Seventh District Judge of the

Fifteenth Circuit, acting in accordance with the Constitution, the Federal Code of Criminal

Procedure and the Federal Act on the Prevention of Organized Crime, ordered the

precautionary detention without charge (arraigo) of Mr. Córdova. He was notified of this on

30 April. With this measure, the detention ordered by the Federal Prosecution Service came

to an end and Mr. Córdova was placed in preventive custody under the jurisdiction of the

Thirteenth District Judge of the Fifteenth Circuit, sitting in Tijuana, who on 18 July 2008

issued an arrest warrant against him for various offences, including organized crime offences.

34.

The Government reports that this judge recused herself twice, declaring that she was

not competent to hear the case because it came under federal jurisdiction. So that this recusal

could take effect, the precautionary detention measure against Mr. Córdova was suspended;

the detention was not arbitrary because the procedures established by law were duly followed.

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The Government considers that the aforementioned proceedings are in line with the

Constitution and are compatible with articles 9 and 10 of the Universal Declaration of Human

Rights, articles 9 and 14 of the Covenant and articles 7 and 8 of the American Convention on

Human Rights. Mr. Córdova has been deprived of his physical freedom for reasons and under

the conditions defined previously in the Constitution and national laws, based on the findings

of the preliminary investigation.

35.

The Government maintains that the case file contains nothing to corroborate that Mr.

Córdova has been the victim of torture, rape or ill-treatment. It contends that the injuries

suffered were the result of an armed confrontation in which 13 people lost their lives, for

which reason no further investigation of the torture allegations, including medical or other

types of examinations, was carried out. Indeed, no further investigations were conducted

because the other detainees implicated and identified Mr. Córdova as a participant in the

commission of the offence.

36.

The Government states that officials from the Consulate of the United States of

America met with Mr. Córdova on 30 April 2008.

37.

The Government lists six complaints filed with the National Human Rights

Commission that have been promptly addressed and resolved, as the authorities informed the

petitioners after consulting the case file monitoring system. Furthermore, the Government

reports that the Ministry of Security and Citizen Protection has been kept informed of all

proceedings in order to ensure Mr. Córdova’s health and well-being. The Government

underscores its compliance with national and international law and argues that Mr. Córdova

is attempting to use the Working Group as a court of fourth instance in order that it might

examine the evidence and the decisions taken by the Mexican courts. It requests that the

Working Group decline to consider the case and dismiss it on the grounds that it is unfounded.

Additional comments from the source

38.

The Working Group transmitted the Government’s response to the source on 24

January 2021. The source insists that the accused has been left without a defence, as his

public defender did not support the submission of the information presented and has

constantly been denied access to the case file. According to the source, Mr. Córdova was a

passer-by who, upon being wounded, went unaided to the Red Cross hospital. The source

maintains that Mr. Córdova has been detained for 14 years without any proof that he

committed the offence of which he is accused and that he and his co-defendants were tortured

in order to incriminate themselves, as is evident from the case file and the statements given.

39.

The source states that Mr. Córdova received neither immediate legal assistance nor

consular assistance and was held incommunicado for three days, in arbitrary detention.

Having sustained a bullet wound to the hand, it is not unusual that gunshot residue should be

present. In any case, this test was carried out by unqualified persons without his consent.

40.

The source also states that in two preliminary statements, Mr. Córdova claimed to

have been physically, psychologically and emotionally tortured into signing a statement

without knowing its contents. There is evidence that Mr. Córdova sent a letter following up

on his claims of torture, which went unanswered. There are also witness statements affirming

that Mr. Córdova was indeed held at the facility of the Twenty-eighth Infantry Battalion

where, together with his co-defendants, he was tortured before being transferred to the

custody of the Attorney General’s Office. There he was forced to sign a statement without

knowing its contents and without the presence of the public defender, who was forced to

leave the place where Mr. Córdova was being held.

41.

Together with these additional comments, the source appended copies of witness

statements; supplementary witness statements; records of the cross-examination of witnesses;

documents certifying that the experts who conducted tests, without Mr. Córdova’s consent,

were unqualified; a document from the Red Cross hospital in Tijuana describing the

circumstances of Mr. Córdova’s admission; and several other official documents attesting to

the credibility and reliability of his claims.

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Discussion

42.

The Working Group thanks the parties for their contributions to the resolution of the

present case.

43.

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.3

44.

The Working Group wishes to reaffirm that States have an obligation to respect,

protect and uphold all human rights and fundamental freedoms, including liberty of person,

and that any national law allowing deprivation of liberty should be formulated and

implemented in conformity with the relevant international standards set forth in the Universal

Declaration of Human Rights, the Covenant and other applicable international and regional

instruments. Furthermore, even if the detention does conform to national law, regulations and

practices, the Working Group is mandated to assess the judicial proceedings and the law itself

to determine whether such detention is compatible with the relevant provisions of

international human rights law.

45.

As a preliminary matter, the Working Group wishes to address the Government’s

request to dismiss the communication as inadmissible. The Working Group recalls that its

methods of work take into account the specific characteristics of the mandate conferred upon

it by the resolutions of the Commission on Human Rights4 and the Human Rights Council.5

46.

Resolution 1991/42 of the Commission on Human Rights mandates the Working

Group to investigate cases of deprivation of liberty imposed arbitrarily. In fulfilling its

mandate, the Working Group refers to the international human rights standards set forth in

the Universal Declaration of Human Rights and the Covenant, among other relevant

voluntary and binding international instruments. The Working Group is the only international

mechanism that individuals can turn to without first exhausting domestic legal remedies.

Therefore, the suggestion that the Working Group could become a court of fourth instance is

respectfully dismissed. The Working Group, in fulfilling its mandate, receives information

from sources and Governments on the circumstances of detention and examines the legality

thereof in the light of international instruments. It does not interpret or characterize national

actions except in relation to international obligations.6

Category I

47.

The Working Group notes that the source has put forward extensive arguments under

categories I, III and V, described in the Working Group’s methods of work. These arguments

are examined below.

48.

The source alleges that Mr. Córdova was arrested on Saturday, 26 April 2008 at the

Tijuana Red Cross hospital, where he went to seek first aid after being shot and wounded

while driving on Boulevard Insurgentes, having been requested by persons who appeared to

be police officers to stop his vehicle for a routine check. As he was getting out of his vehicle,

there was an exchange of fire and he sustained two gunshot wounds, one to the abdomen and

one to the back of his left hand, and he was forced to take cover for about 10 minutes, until

he was able to get a taxi to take him to the Red Cross hospital.

49.

Officers from various branches of the Federal Police, the army and the security forces

subsequently arrived at the hospital. There they remained in Mr. Córdova’s presence at all

times, refused to allow him to leave and arrested him without showing an arrest warrant or

giving reasons for the deprivation of his liberty.7 The Working Group stresses that the reasons

given for the arrest must include not only the legal basis but also factual specifics indicating

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

4 Resolutions 1991/42, 1992/28, 1993/36, 1994/32, 1995/59, 1996/28, 1997/50, 1998/41, 1999/37,

2000/36, 2001/40, 2002/42, 2003/31 and 2004/39.

5 Resolutions 6/4, 10/9, 15/18, 24/7, 33/30 and 42/22.

6 Opinion No. 43/2021 and A/HRC/36/38, paras. 8–10.

7 Covenant, art. 9 (2).

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the substance of the complaint and the wrongful act committed. These reasons are understood

to be the official basis for the arrest, not the subjective motivations of the arresting officer.8

Mr. Córdova was not informed of the judicial avenues available for challenging the

lawfulness of the arrest, was not allowed to contact his family and was denied the right to be

assisted by the consular representatives of his country. The source claims that the authorities

gave a false account of the facts, as the public prosecutor stated that Mr. Córdova was arrested

upon entering the General Hospital, when in fact Mr. Córdova went to the Red Cross hospital

and had already been admitted to emergency care, examined, treated and diagnosed as

requiring surgery.

50.

The information provided to the Working Group is troubling, as it describes Mr.

Córdova’s being held in pretrial detention for 14 years, an unacceptable length of time and

in complete violation of the applicable international standards. 9 As the Human Rights

Committee has observed, in order to avoid a characterization of arbitrariness, detention must

not continue beyond the period for which the State can provide an appropriate justification –

a norm which has ostensibly been violated in this case, in which pretrial detention has come

to replace the sentence.

51.

Furthermore, the source reports that a court ordered Mr. Córdova’s release. That the

order was never enforced casts serious doubt over the independence and impartiality of the

judges, who violated articles 9 and 14 of the Covenant. Mr. Córdova should have been

released; keeping a person in detention in defiance of a judicial order for his or her release is

arbitrary and unlawful.10

Presumption of innocence

52.

As the source states, Mr. Córdova has been held in pretrial detention for 14 years

without evidence or a legal basis for his detention and without his guilt having been proved

beyond reasonable doubt, thus destroying his right to the presumption of innocence in

violation of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of

the Covenant.

53.

The Working Group is also concerned about the refusal to investigate Mr. Córdova’s

allegations that he was subjected to torture. The Government, in denying that his injuries

were the result of torture, makes it known that it decided not to conduct a further investigation

in respect of the allegations concerning torture and the medical examinations conducted,

because the other detainees implicated and identified him as a participant in the commission

of the offence of which he stands accused.

54.

The Working Group is concerned that the complaints of torture have not been

investigated because they were considered unnecessary, as the Government stated in its

response. This omission violates article 5 of the Universal Declaration of Human Rights and

article 7 of the Covenant. The information received from the source reveals a prima facie

breach of the absolute prohibition of torture, which is a peremptory norm of international

law, enshrined in the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, principle 6 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment and rule 1 of the United Nations

Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules).

55.

The Government refers to six complaints of torture filed with the National Human

Rights Commission that were promptly addressed and resolved, with the petitioners informed

of the outcome. However, the Government has not provided the Working Group with any

evidence to support this statement, whereas the source has credibly demonstrated that Mr.

Córdova was tortured and subjected to cruel and humiliating treatment.

56.

The situation is aggravated by the fact that Mr. Córdova was held incommunicado for

three days and questioned in the absence of a defence lawyer. Moreover, officers forced all

8 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 (A/HRC/30/37, annex, principle 7).

9 Human Rights Committee, general comment No. 35 (2014).

10 Ibid., para. 11; and Human Rights Committee, Chambala v. Zambia (CCPR/C/78/D/856/1999), para.

7.3.

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the detainees, including Mr. Córdova, to sign self-incriminating statements. The source states

that one of the co-defendants – the only one to make an accusation against Mr. Córdova –

obtained proof, in the form of an expert opinion, that he had been forced under torture to

incriminate him. The Working Group recalls that a forced confession obtained under torture

taints the entirety of the proceedings, regardless of whether other evidence is available to

support a legal decision or verdict.11 In the light of these circumstances, the Working Group

refers the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment.

57.

The Working Group stresses that the prosecutorial body cannot be considered a

judicial authority for the purposes of article 9 (3) of the Covenant. 12 Consequently, the

authorities have failed to establish the legal basis for Mr. Córdova’s detention in accordance

with the Covenant. It is not sufficient for there to be a law authorizing the arrest; the

authorities must invoke that legal basis and apply it to the circumstances of the case through

an arrest warrant.13 Articles 9 (2) and 14 (3) (a) of the Covenant guarantee the right of

detainees to be informed promptly of the nature and cause of the charges against them.14

These requirements have not been met in the case of Mr. Córdova.

58.

Detailed analysis of all of the above circumstances demonstrates a clear violation of

international human rights law due to the lack of a legal basis for the detention. The Working

Group is therefore persuaded that Mr. Córdova’s detention is arbitrary under category I.

Category III

59.

The Working Group will proceed to analyse whether, during the course of the judicial

proceedings, the fundamental elements of a fair, independent and impartial trial have been

respected in accordance with international human rights law, which establishes that everyone

has the right to be heard in a public trial at which they have all the guarantees necessary for

their defence.15 The rights to due process and to a fair and impartial trial are protected by

articles 10 and 11 of the Universal Declaration of Human Rights and article 14 of the

Covenant.16 They are supplemented by the right not to be arbitrarily deprived of liberty and

to the right to be presumed innocent until proved guilty.

60.

On 17 July 2008, an investigation was opened into Mr. Córdova as the likely

perpetrator of the organized crime offences of stockpiling and trafficking firearms,

possession of a vehicle stolen abroad, concealment of vehicle theft abroad, intentional

homicide and carrying a firearm reserved for the exclusive use of the army, navy and air

force.

61.

The Government reports that when the judge ordered the precautionary detention

without charge of Mr. Córdova, he and his public defender were notified of the decision in

person and he was placed under the jurisdiction of the Thirteenth District Judge of the

Fifteenth Circuit, sitting in Tijuana, who on 18 July 2008 issued an arrest warrant for Mr.

Córdova on organized crime charges. This judge later twice declared that she was not

competent to hear the case. The Working Group stresses that the legal safeguards against

arbitrary deprivation of liberty contained in articles 9, 10 and 11 of the Universal Declaration

of Human Rights and articles 9 and 14 of the Covenant have been violated.

Due process

62.

The Working Group stresses that one of the fundamental guarantees of due process is

the principle of legality, which includes: (a) the principle of non-retroactivity; (b) the

11 Opinions No. 34/2015, para. 28; and No. 54/2020.

12 Human Rights Committee, general comment No. 35 (2014), para. 32; opinions No. 14/2015, para. 28;

No. 5/2020, para. 72; No. 41/2020, para. 60; and No. 64/2020, para. 56; and A/HRC/45/16/Add.1,

para. 35.

13 A/HRC/19/57, para. 68; and opinions No. 36/2018, para. 40; No. 46/2018, para. 48; No. 44/2019,

para. 52; and No. 45/2019, para. 51.

14 A/HRC/30/37, paras. 2 and 3. See also opinions No. 1/2017, No. 6/2017, No. 8/2017, No. 30/2017,

No. 2/2018, No. 4/2018, No. 42/2018, No. 43/2018, No. 79/2018 and No. 49/2019.

15 Universal Declaration of Human Rights, arts. 9–11.

16 Human Rights Committee, general comment No. 32 (2014).

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prohibition against analogy; (c) the principle of certainty; and (d) the prohibition against

uncodified, that is, unwritten, or judge-made, criminal provisions. This means that an act can

be punished only if, at the time of its commission, it was the object of a valid, sufficiently

precise, written criminal law to which a sufficiently certain sanction was attached.17 Charges

that do not correspond to the reality of the facts fail to meet the requirement of legal certainty

and enable guilt by analogy.

63.

The Working Group notes with concern that in the case at hand, the fundamental rules

of a fair, independent and impartial trial and guarantees of due process have been violated.

According to the source, Mr. Córdova was arrested without an order from a competent

authority, and the arrest did not involve an urgent situation or flagrante delicto. The officers

who arrested Mr. Córdova did so in circumstances not involving flagrante delicto, a chase

following the commission of an offence or another urgent situation. The Working Group

points out that 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”.18

64.

The Government insists that the arrest was made in flagrante delicto and that this was

legally confirmed by the Public Prosecution Service on 26 April 2008. However, the Working

Group notes that Mr. Córdova was arrested in circumstances not involving flagrante delicto

or an urgent situation and that there was no arrest warrant. The State has failed to provide

any documentation to support its arguments. These actions violate article 9 (1) of the

Covenant. The Working Group stresses, as it has maintained since its early years, that the

practice of arresting persons without a warrant renders their detention arbitrary.19

Automatic pretrial detention

65.

The Working Group reminds the Government that the application of automatic pretrial

detention constitutes a clear form of arbitrary detention and is contrary to the human rights

obligations to which Mexico has voluntarily committed itself before the international

community. It violates, inter alia, the right to liberty of person, the presumption of innocence,

due process guarantees and the right to an effective remedy. Furthermore, automatic pretrial

detention increases the likelihood of a person being subjected to torture or other cruel,

inhuman or degrading treatment. The source alleges that Mr. Córdova has been subjected to

this measure and thereby deprived of his fundamental rights.

66.

The Working Group stresses its grave concern that Mr. Córdova has been held in

pretrial detention for almost 14 years and recalls that deprivation of liberty is not only a

question of legal definition, but also of fact, and must be justified as reasonable, necessary

and proportionate in the light of the circumstances and reassessed as it extends in time.20 It

must not be punitive in nature and should be based on an individual assessment of each

person’s case. Moreover, article 9 (3) of the Covenant requires that the justification for

pretrial detention must be analysed in a reasoned judicial decision in every case. This was

not done in the case of Mr. Córdova, who was arrested, held incommunicado and

disappeared, and who has been hindered and delayed throughout the proceedings.

67.

The Working Group recalls that, in accordance with article 9 (3) of the Covenant,

pretrial detention should be the exception rather than the rule and should be ordered for the

shortest possible time. In other words, under article 9 (3), liberty should be the prime

consideration and pretrial detention never more than an exception. Detention pending trial

must therefore be based strictly on an individualized determination and applied because it is

reasonable and necessary for such purposes as to prevent flight, tampering with evidence or

the recurrence of crime. The Government has not provided the Working Group with any

17 Claus Kreß, “Nulla poena nullum crimen sine lege”, Max Planck Encyclopedia of Public

International Law, vol. 7, Rüdiger Wolfrum, ed. (2010), pp. 889–890; and Payam Akhavan, “Judicial

guarantees”, The 1949 Geneva Conventions: A Commentary, Andrew Clapham et al., eds. (2015), p.

1227, cited in opinion No. 10/2018, para. 50.

18 Opinion No. 35/2021, para. 43.

19 Decisions No. 1/1993, paras. 6–7; No. 3/1993, paras. 6–7; No. 4/1993, para. 6; and No. 5/1993, paras.

6 and 8–9. See also opinions No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No.

51/2018, para. 80; No. 63/2018, para. 27; No. 68/2018, para. 39; and No. 82/2018, para. 29.

20 Human Rights Committee, general comment No. 35 (2014), para. 18.

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plausible explanation for the application of this measure in the case of Mr. Córdova, while

the source has attached documentation in support of the allegations.

68.

The Working Group emphasizes that any person arrested or detained on a criminal

charge must be brought promptly before a judge to exercise his or her rights and present his

or her defence. Any delay must be absolutely exceptional and amply justified.21 The Working

Group underscores that Mr. Córdova was detained by the Public Prosecution Service, which,

as the Working Group has stated, is not a judge. In addition, the judge subsequently twice

declined to hear the case. All of this casts doubts over whether due process was observed.

69.

Moreover, waiting for a trial to begin or end creates a prolonged state of uncertainty

for persons who have not been convicted of an offence. Given the importance of liberty of

person, the Working Group stresses that deprivation of liberty should not last longer than

necessary.22 The Inter-American Commission on Human Rights considers that the excessive

use of pretrial detention is contrary to the very essence of rule of law and therefore directly

affects the quality of democracy.23 Extremely prolonged pretrial detention also jeopardizes

the presumption of innocence.24 According to the resolutions adopted by the Eighth United

Nations Congress on the Prevention of Crime and the Treatment of Offenders, pretrial

detention should not be disproportionate to the alleged offence and the expected penalty. In

view of these circumstances, the Working Group refers the present case to the Special

Rapporteur on the independence of judges and lawyers for appropriate action.

70.

The Working Group recalls that, under certain circumstances, widespread or

systematic imprisonment or other severe deprivation of liberty in violation of fundamental

rules of international law may constitute crimes against humanity.25

71.

The situation has been exacerbated by the Government’s failure to consider granting

alternatives to detention to Mr. Córdova, thus disregarding article 9 (3) of the Covenant and

the Working Group’s call for States to adopt such measures in the light of the COVID-19

pandemic. In addition, Mr. Córdova was subjected to precautionary detention without charge,

which, according to the Working Group’s jurisprudence, should be eliminated26 as it is

incompatible with the human right to liberty and security of person.

Trial by an independent and impartial tribunal

72.

The Working Group notes that 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 clearly establish the importance of a review, by an independent

and impartial judicial authority, of the arbitrariness and lawfulness of the deprivation of

liberty, in order to safeguard the right protected by article 9 of the Covenant. 27 In Mr.

Córdova’s case, the initial legal proceedings against him were handled by the police officers

and the investigating officials of the Prosecution Service, who not only questioned him, but

also authorized his detention.

73.

The Working Group notes that the impetus of the proceedings has been controlled by

the Public Prosecution Service, which issued a decision in which it characterized Mr.

Córdova’s detention as lawful. The Working Group recalls that 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, 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 Working Group notes that Mr. Córdova

21 Ibid.; opinions Nos. 59/2018, paras. 80–83; and No. 76/2020, para. 53.

22 Human Rights Committee, general comment No. 35 (2014), para. 37; and Human Rights Committee,

Cagas et al. v. Philippines (CCPR/C/73/D/788/1997), para. 7.3.

23 Human Rights Committee, Madani v. Algeria (CCPR/C/89/D/1172/2003), para. 8.4.

24 Human Rights Committee, general comment No. 35 (2014).

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

26 Opinion No. 24/2020, para. 112.

27 A/HRC/30/37, annex, principle 6.

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certainly has not benefited from effective judicial oversight of the necessity and

proportionality of his detention.

74.

The Public Prosecution Service subsequently assigned Mr. Córdova a public defender.

On 1 May 2008, he was transferred to a preventive custody unit in Mexico City, where he

remained until 20 July. He was later transferred to Federal Social Rehabilitation Centre No.

11 (“CPS-Sonora”), where he is still being held in mandatory pretrial detention after 14 years.

75.

The Working Group recalls that all detained persons are entitled to challenge the

lawfulness of their detention before a court, as provided for in article 9 (4) of the Covenant

and articles 6 and 8 of the Universal Declaration of Human Rights. The provision of

information in respect of this self-standing human right is essential to preserve legality in a

democratic society. Failure to uphold this right constitutes a violation of principles 2, 4 and

10 of the Body of Principles for the Protection of All Persons under Any Form of Detention

or Imprisonment. Furthermore, in accordance with the 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 is a peremptory

norm of international law which applies to all forms of deprivation of liberty.28 Mr. Córdova

was deprived of this right, which prevented him from receiving a fair trial.

Right to consular assistance

76.

The Working Group notes that the Government appears not to have fully implemented

the formal procedures necessary to establish the legal basis for the arrest and detention of a

foreign national under the provisions of article 36 of the Vienna Convention on Consular

Relations, to which Mexico is a party.29

77.

Article 36 (1) (b) of the Vienna Convention provides that foreign nationals arrested

or committed to prison or to custody pending trial or detained in any other manner have the

rights to inform consular officials of their detention, to have any communication addressed

to the consular post forwarded without delay, and to be informed of these rights without

delay. This is in addition to the rights of consular officers to be informed of the detention of

nationals and to communicate with them, arrange for their legal representation and visit them

in prison (art. 36 (1) (c)).

78.

The Working Group notes that the General Assembly has emphatically reaffirmed the

duty of States parties to ensure full respect for and observance of the Vienna Convention, in

particular with regard to the right of all foreign nationals, regardless of their migration status,

to communicate with a consular official of the sending State in case of arrest, imprisonment,

custody or detention, and the obligation of the receiving State to inform the foreign national

without delay of his or her rights under the Convention.30

79.

Furthermore, principle 16 (2) of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment recognizes the importance of

consular assistance for a detained or imprisoned foreign national by specifically mentioning

his or her right to communicate by appropriate means with a consular post or the diplomatic

mission of the State of which he or she is a national. Rule 62 (1) of the Nelson Mandela Rules

stipulates that prisoners who are foreign nationals must be allowed reasonable facilities to

communicate with the diplomatic and consular representatives of the State to which they

belong.

80.

The Working Group has indicated that anyone who is arrested must be informed, at

the time of arrest, not only of the reasons for the arrest31 but also of the judicial avenue to

challenge the lawfulness of the deprivation of liberty.32 The reasons given for the arrest must

include not only the legal basis but also factual specifics indicating the substance of the

complaint and the wrongful act committed. These reasons are understood to be the official

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

29 See opinions No. 58/2017 and No. 30/2018.

30 General Assembly resolutions 72/179, para. 4 (k); 72/149, para. 32; and 73/180, para. 16 (g); and

Human Rights Council resolution 40/20, para. 2 (j).

31 Covenant, art. 9 (2).

32 A/HRC/30/37, annex, principle 7.

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basis for the arrest, not the subjective motivations of the arresting officer.33 Moreover, in the

view of the Working Group, persons deprived of their liberty have the right to be informed

by the authorities, at the time of arrest, of their right to counsel of their choosing.34 They also

have the right to be promptly informed of the charges against them. 35 None of these

guarantees were observed before or during the proceedings against Mr. Córdova.

81.

In addition, the disappearance to which Mr. Córdova was subjected prevented him

from exercising the aforementioned rights and in particular his right to an effective judicial

remedy to challenge his detention and request protection from the possible violation of his

right to personal liberty. This right is enshrined in article 8 of the Universal Declaration of

Human Rights, in article 2 (3) of the Covenant and in the Working Group’s jurisprudence.

Incommunicado detention also negates the essence of the right to legal assistance, preparation

for defence and free communication with legal counsel under article 11 (1) of the Universal

Declaration of Human Rights.

Torture and other cruel, inhuman or degrading treatment

82.

The Working Group considers that the source has established a credible case, which

has not been refuted by the Government, that Mr. Córdova was subjected to acts of torture

and ill-treatment, in violation of the absolute prohibition of torture as a peremptory norm of

international law and of article 5 of the Universal Declaration of Human Rights, article 7 of

the Covenant and articles 2 and 16 of the Convention against Torture, to which Mexico is a

party. This situation hindered his ability to participate in his own defence, in violation of his

right to equality of arms under article 14 (1) of the Covenant.36

83.

The Working Group considers that the admission into evidence of a statement

allegedly obtained through torture or ill-treatment causes the entirety of the proceedings to

fall into the category of an unfair trial.37 It is for the Government to prove that this statement

was freely and voluntarily given, yet the Government has commented that it decided not to

investigate these allegations, as the accused had already been identified by others and had

signed his confession. 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.38

84.

The Working Group is satisfied that in the present case, article 14 (3) (a), (b) and (d)

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, rules 24,

25, 26, 27, 29, 30, 31, 32, 33, 34, 35 and 119 of the Nelson Mandela Rules, and the United

Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules), have been

violated.

85.

The Working Group is persuaded that the Mexican authorities have committed serious

breaches of international norms relating to the right to a fair, independent and impartial trial,

in violation of articles 9 to 11 of the Universal Declaration of Human Rights. The information

provided by the source, which is not contested by the Government, has revealed that Mr.

Córdova’s ability to enjoy the right to a fair hearing, in accordance with international human

rights rules, including article 14 of the Covenant, has been seriously undermined. The

Working Group concludes that the above-mentioned violations of the right to a fair trial are

of such gravity as to give Mr. Córdova’s detention an arbitrary character under category III.

Category V

86.

The Working Group finds that the situations experienced by Mr. Córdova demonstrate

that he has been subjected to serious discrimination. It is important to note that States parties

33 Opinions No. 17/2020, para. 74, and No. 39/2020, para. 37.

34 A/HRC/30/37, annex, principle 9.

35 Covenant, art. 9 (2).

36 Opinions No. 46/2017, para. 25; No. 53/2018, para. 77; and No. 24/2020, para. 108.

37 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); and No. 32/2019,

para. 43.

38 CAT/C/BHR/CO/2-3, para. 16.

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have an obligation under article 2 of the Universal Declaration of Human Rights and article

26 of the Covenant, which state that all persons are equal before the law and are entitled

without any discrimination to the equal protection of the law. Accordingly, the law must

prohibit all discrimination, must guarantee to all persons equal and effective protection

against discrimination on any grounds, and must not only respect human rights, but also fulfil

the State’s obligation to ensure that these rights are enjoyed by all persons under its

jurisdiction,39 as stated in principle 5 of the Body of Principles for the Protection of All

Persons under Any Form of Detention or Imprisonment. The Working Group has observed

that these requirements were not met in the case of Mr. Córdova; therefore, his detention is

arbitrary and falls within category V.

Disposition

87.

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

The deprivation of liberty of Andrew Armando Córdova, 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.

88.

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

to remedy the situation of Mr. Córdova 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.

89.

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

case, the appropriate remedy would be to release Mr. Córdova immediately and accord him

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

law. This is especially relevant given the interpretative declaration on article 9 (5) of the

Covenant, entered by Mexico upon acceding thereto, which states 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 has, inter alia, under the provisions of the

appropriate laws, an enforceable right to just compensation.

90.

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

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

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

rights.

91.

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 and the Special Rapporteur on the independence of judges and

lawyers, for appropriate action.

92.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

93.

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. Córdova has been released and, if so, on what date;

(b)

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

39 Human Rights Committee, general comment No. 31 (2004).

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(c)

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

Córdova’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.

94.

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.

95.

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.

96.

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.40

[Adopted on 30 March 2022]

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