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.22-09192 (E) 130323 140323
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. 21/2022 concerning Juan Carlos Juárez Rivas (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 3 November 2021, the Working Group
transmitted to the Government of Mexico a communication concerning Juan Carlos Juárez
Rivas. 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/2022/21
General Assembly
Distr.: General
14 June 2022
English
Original: Spanish
A/HRC/WGAD/2022/21
2
GE.22-09192
Submissions
Communication from the source
4.
Juan Carlos Juárez Rivas is a Mexican national and the holder of a law degree. At the
time of his arrest, he was 38 years old.
5.
According to the information received, Mr. Juárez Rivas was arrested on 8 March
2000, at approximately 1.30 p.m., as he was driving on Avenida 22 de Julio, near the corner
with Calle Agustín Melgar, in Tijuana, Mexico. Two vehicles blocked his way and several
people in civilian clothing, armed with rifles, got out of them. They did not identify
themselves or show any document such as an arrest warrant or court order. Mr. Juárez Rivas
was blindfolded and bound hand and foot before being forced into a vehicle and taken to an
unknown house or room, where he was laid on a couch or bed and had a plastic bag placed
over his nose and mouth to prevent him from breathing. He was beaten on different parts of
his body and questioned about the whereabouts of someone called “Güero”. Later, still
blindfolded, he was taken to the office of the Homicide Unit of the Office of the Attorney
General of the State of Baja California, where two police officers accused him of homicide,
which Mr. Juárez Rivas denied. The source claims that the file relating to case No. 210/2018
before the First Criminal Court of Tijuana contains documents attesting to the torture that
was inflicted upon Mr. Juárez Rivas, including medical reports on the injuries he sustained
during his violent arrest, the marks of which he still bears.
6.
The source asserts that, after Mr. Juárez Rivas refused to incriminate others in matters
unknown to him, he was threatened with dire consequences if he refused to cooperate. It is
alleged that he was then tortured. A bag was placed over his face and he was punched in the
stomach while being told that he had to sign documents or else members of his family would
suffer the same fate. In this way, he was forced to sign some documents that he was not
permitted to read. In addition, he was forced to declare that he knew certain detained persons,
who turned out to be his co-defendants.
7.
The source emphasizes that Mr. Juárez Rivas was never shown an arrest warrant, as
no such document existed at the time of his arrest by presumed police officers. Neither was
he shown any other document related to the offence in which he had allegedly participated,
nor given any reason for the arrest other than the fact that he was a neighbour of a person
named “Güero”.
8.
In view of the manner in which he was deprived of his liberty, Mr. Juárez Rivas’
relatives went to various federal, state and municipal police stations. When they could not
find him registered as a detainee at any of those stations, they requested the Office of the
Attorney General of the State of Baja California to open an investigation for kidnapping, a
request which was ignored.
9.
On 20 February 2019, the defence requested the judge of the First Criminal Court of
Tijuana to rule on the excessive pretrial detention of Mr. Juárez Rivas, given the unjustifiably
long period of time that had elapsed since his arrest. At the time, Mr. Juárez Rivas had been
imprisoned for 19 years, 9 months and 7 days, despite his not having perpetrated any of the
offences for which he had been committed to custody in March 2000 and his not having been
convicted, making his imprisonment a premature punishment. The source reports, however,
that the criminal court judge refused the defence’s request on procedural grounds, without
considering its merits, namely, the excessive and unjustified duration of the pretrial detention.
10.
The defence filed an appeal against the judge’s decision before the Third Chamber of
the Judicial Branch of the State of Baja California. On 30 October 2019, a hearing was held
regarding that appeal. However, this appeal has not been resolved, leaving the detainee in a
state of legal uncertainty.
11.
The source indicates that Mr. Juárez Rivas remains in detention at the “La Mesa”
Social Rehabilitation Centre in Tijuana. The facts of the case having occurred in March 2000,
Mr. Juárez Rivas has now been in pretrial detention for 21 years. In 2013, a judgment was
handed down ordering a review of the proceedings and an examination of the allegation of
torture, since the natural judge had neglected to consider the detainees’ statements, leaving
some defendants but not others at liberty. However, this judgment did not become final for
A/HRC/WGAD/2022/21
GE.22-09192
3
another three years. The source points out that the resolution of this matter was delayed not
because the accused exercised his right of defence, but because of the inaction of the criminal
justice system. Moreover, the latter was never able to maintain proper oversight of the
detainee because he was constantly being transferred between prisons all over the country,
until 2018, when, as a result of amparo proceedings, he was granted a transfer to Tijuana.
Even the judge sometimes had to ask the prisoners’ relatives where they were being held.
12.
The source claims that, by turning pretrial detention into a penalty, the State has
violated article 20 (B) (IX) of the Constitution and articles 7 and 8 of the American
Convention on Human Rights. Mr. Juárez Rivas was arrested on 8 March 2000, without any
arrest warrant or court order justifying his subsequent transfer to the offices of the Homicide
Unit of the Public Prosecution Service in Tijuana.
13.
The event that led to the arrest of Mr. Juárez Rivas was an aggravated murder
committed in February 2000 that had been the subject, together with several other unsolved
murders committed during that period, of a preliminary investigation by the Office of the
Attorney General of the State of Baja California. The detainees and co-defendants were
tortured and forced to incriminate themselves in respect of the acts under investigation.
14.
In March 2000, Mr. Juárez Rivas was committed to custody for aggravated murder
and criminal association – an offence for which the statute of limitations has expired. The
source adds that, at the time of the events which led to the opening of the investigation and
the consequent arrest of Mr. Juárez Rivas, article 126 of the Baja California Criminal Code
provided for a sentence of 16 to 30 years’ imprisonment for the crime of aggravated homicide.
15.
According to the source, the First Criminal Court of Tijuana was requested to rule on
the excessive nature of Mr. Juárez Rivas’ pretrial detention, given that the time he had spent
deprived of his liberty considerably exceeded the duration of the sentence, in violation of
article 20 (B) (IX) of the Constitution and article 8 of the American Convention on Human
Rights.
16.
The fact that the defence requested evidence in Mr. Juárez Rivas’s favour does not
preclude the finding that his being kept in pretrial detention has violated his human rights,
since justice must be served promptly and criminal proceedings must be concluded within
the time periods set forth in article 20 of the Constitution and articles 7 and 8 of the American
Convention on Human Rights. The defence furnished several pieces of evidence in support
of its case, but this does not mean that the proceedings should be delayed without just cause.
17.
The proceedings against Mr. Juárez Rivas have lasted more than 20 years, whereas
article 126 of the Baja California Criminal Code stipulates that the minimum penalty for the
crime of aggravated homicide is 16 years’ imprisonment.
18.
According to the source, the pretrial detention to which Mr. Juárez Rivas is being
subjected, without a first instance judgment having been issued, is arbitrary and amounts to
a premature punishment, having been stripped of its precautionary character and
reasonableness by its application and extension over time. The source claims that this is a
violation of the right to be tried within a reasonable time or released, the right to the periodic
judicial review of measures that restrict personal liberty, the right to an effective judicial
remedy, the principle that measures restricting liberty must not constitute premature
punishment, the right to be presumed innocent and the right to the prompt and efficient
administration of justice.
19.
The source contends that being held in pretrial detention for more than 20 years is an
exceptional situation that violates the right to challenge the lawfulness of detention before a
judge, as judicial oversight of deprivation of liberty is considered essential for ensuring that
the detention has a genuine legal basis. This was the responsibility of the judge who heard
the original criminal case, namely, the judge of the First Criminal Court of Tijuana, who
allegedly denied Mr. Juárez Rivas this right.
20.
The right of access to justice implies an obligation for the State to institute the
administration of justice as a public service, which must be free of unnecessary obstacles and
must be prompt and expeditious, as required by article 17 of the Constitution. In criminal
proceedings, the need for prompt justice is all the more evident, given the importance of the
A/HRC/WGAD/2022/21
4
GE.22-09192
rights at stake – liberty and property of the person – which is why the Constitution establishes
maximum time limits within which the courts must render judgment.
21.
The source indicates that the law provides for reasonable deadlines to ensure a balance
between the promptness of proceedings and sufficient time for the parties and the judge to
carry out their activities. In this regard, the main international human rights instruments
recognize the fundamental rights of the individual to legal certainty and to turn to the courts
of the State for the administration of justice.
22.
Articles 7 and 8 of the American Convention on Human Rights establish the right of
all detained persons to be tried within a reasonable period, during which they must be heard
by a judge with due process guarantees. Articles 17 and 20 (A) (VIII) of the Constitution
(prior to the reform of 18 June 2018) provide for the right to justice administered
expeditiously through the courts within the time limits and under the terms established by
law, with rulings issued in a prompt, complete and impartial manner. They also provide for
the right of defendants to be tried within four months if the offence carries a maximum
sentence that does not exceed 2 years’ imprisonment, and within one year if the
corresponding sentence exceeds that length of time, unless the defendant requests an
extension in connection with his or her right to a defence.
23.
The source claims that these provisions establish the obligation of the courts to
administer justice in a prompt, complete and impartial manner. In criminal proceedings, this
means not exceeding the time limits within or violating the terms under which a person must
be tried. For the source, it is evident that the State has violated Mr. Juárez Rivas’ rights, as it
failed to ensure the timely administration of justice and committed a breach of criminal
procedure by failing to comply with the time periods stipulated in article 20 of the
Constitution and articles 7 and 8 of the American Convention on Human Rights. That the
defence furnished various pieces of evidence in support of its case does not mean that the
proceedings should be delayed without just cause.
24.
The source adds that the delay in the proceedings cannot be justified by the defendants’
request for more time to mount a defence, as the judge had been passive in many aspects of
the proceedings, including in respect of that request. In 2005, no action was taken and the
proceedings were forgotten, to the detriment of the defendants. Under these circumstances,
pretrial detention became a punishment rather than a temporary and exceptional situation.
25.
Furthermore, it is evident that the reason for the excessive slowness of the proceedings
was not the defendants’ request for more time to mount a defence, but the opaque manner in
which the proceedings have been conducted. The source indicates that the original judge did
not have the defendants transferred to Tijuana and failed to take the steps necessary for such
a transfer to be carried out, thus contributing to the delay in the proceedings and the excessive
length of the pretrial detention.
26.
The source highlights that the appellate court also contributed to the delays, given that
a first instance judgment ordering a review of the proceedings was handed down on 29 May
2013 but that the higher court did not rule on the appeal until 4 November 2016, over three
years later. For the source, there is no justification whatsoever for the continued prolongation
of the pretrial detention, which is the responsibility of the courts as State bodies.
27.
The source contends that the abuse of pretrial detention is contrary to the essence of a
democratic State governed by the rule of law. On the one hand, it constitutes a breach of
international human rights law; on the other, it undermines the quality of administration of
justice. Irregular pretrial detention violates both the right to be presumed innocent and the
right to liberty of person, which together form the backbone of the right to due process.
28.
Pretrial detention, as a precautionary, non-punitive measure, must obey the principles
of legality, necessity and proportionality, must respect the principle of presumption of
innocence and must be ordered only insofar as it is strictly necessary in a democratic society.
Moreover, it may be applied only where strictly necessary for the purposes of ensuring that
investigations are not impeded and that justice is not evaded, and provided that the competent
authority can prove that those requisites are met.
29.
Due to the particularly restrictive nature of pretrial detention, it should be imposed as
an exception and not the rule, as stated in article 9 (3) of the Covenant. One of the
A/HRC/WGAD/2022/21
GE.22-09192
5
circumstances in which pretrial detention becomes the rule is when it is mandatory for all
defendants charged with a particular crime, without regard to individual circumstances. The
exceptional nature of pretrial detention is a consequence of the principle of the presumption
of innocence, which is enshrined in the American Convention on Human Rights and the
Covenant. In principle, all persons subjected to proceedings must be tried while at liberty. In
the interests of justice, liberty should be recognized as a general principle or rule, and
detention as an exception.
30.
The source alleges that, in this case, there is no distinction between the pretrial
detention and the imprisonment that would have followed a conviction. The deprivation of
liberty has become a punishment, having far exceeded the reasons for which it was imposed.
Automatic pretrial detention based on the type of offence violates the principle of
presumption of innocence and the right to liberty of person.
31.
The source recalls that the Working Group has established 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 the restrictive measures other than deprivation of liberty that may be used as alternatives
to imprisonment.2
32.
The source concludes by stating that mandatory pretrial detention is incompatible and
irreconcilable with international human rights standards. Its application is contrary to the
exceptional nature of pretrial detention; it disrupts proceedings; it impairs the rights to liberty
of person and to due process; and it compromises other basic rights, such as the right to
integrity of the person. Pretrial detention should be a non-punitive, precautionary measure,
which should not be applied for periods longer than are compatible with human rights. When
pretrial detention exceeds the reasonable period of time provided for in national laws and
international instruments, it becomes a disproportionate measure that is equivalent to
premature punishment. Therefore, extending pretrial detention beyond a reasonable period
of time may be considered a violation of the right of access to justice. The duration of the
application of the precautionary measure in the case of Mr. Juárez Rivas has been such that
he has been treated as though he were serving a sentence of imprisonment and not as though
he were in pretrial detention, in breach of national and international standards.
Response from the Government
33.
In accordance with its methods of work, the Working Group transmitted the source’s
allegations to the Government of Mexico on 3 November 2021. The Working Group
requested the Government to provide detailed information regarding the case of Mr. Juárez
Rivas, to clarify the legal and factual basis for his detention and to comment on its
compatibility with the State’s international human rights obligations. The Working Group
also requested the Government to safeguard Mr. Juárez Rivas’s physical and mental health,
especially in the context of the global pandemic. 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.
34.
The Government requested an extension on 15 December 2021. However, it did not
make use of the extended deadline and did not provide a response to the Working Group.
35.
The Working Group regrets that the Government of Mexico did not respond to its
communication within the stated time limit.
Discussion
36.
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.
37.
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
2 Opinion No. 1/2018, para. 64.
A/HRC/WGAD/2022/21
6
GE.22-09192
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 In the present
case, the Government has chosen not to challenge the prima facie credible allegations made
by the source.
38.
The Working Group wishes to reaffirm that States have the obligation to respect,
protect and fulfil all the human rights and fundamental freedoms of their inhabitants,
including liberty of person, ensuring that any national law allowing deprivation of liberty is
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. 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.
Category I
39.
The source alleges that Mr. Juárez Rivas was arrested on 8 March 2000 by several
armed men in civilian clothing who did not identify themselves, show an arrest warrant or
give reasons for the arrest. These men blindfolded him, bound his hands and feet and forced
him into a vehicle. They took him to an unknown location where they placed a plastic bag
over his nose and mouth to prevent him from breathing and beat him on different parts of his
body, while interrogating him and pressuring him to incriminate himself. Later, still
blindfolded, he was taken to the office of the Homicide Unit of the Office of the Attorney
General of the State of Baja California, where he was accused of homicide – a charge that he
emphatically denied.
40.
The Working Group is alarmed that Mr. Juárez Rivas has been held in pretrial
detention for more than 20 years, a duration which is excessive and in violation of the
international human rights standards set forth in the Universal Declaration of Human Rights
and the Covenant.4 In this regard, it notes that, in order to avoid a characterization of
arbitrariness, detention must not continue beyond the period for which an appropriate
justification can be provided – a norm which evidently has been violated in this case, in which
pretrial detention has come to replace the penalty.
41.
The Working Group takes into consideration the source’s allegation that, by turning
pretrial detention into a penalty, the State has violated article 20 (B) (IX) of the Constitution
and articles 7 and 8 of the American Convention on Human Rights. These allegations have
not been refuted by the Government.
42.
The Working Group stresses that, under article 9 (1) of the Covenant, no one may be
deprived of liberty except on such grounds and in accordance with such procedure as are
established by law. Additionally, the source has made clear that Mr. Juárez Rivas was not
arrested in flagrante delicto, which makes the alleged violation of his rights to liberty and to
security of person all the more serious.5 The Working Group has maintained since its early
years that the practice of arresting persons without a warrant renders their detention
arbitrary.6
43.
The Working Group also stresses that, in accordance with article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the norm and should be ordered for the
shortest time possible. In other words, under article 9 (3) of the Covenant, liberty should be
the prime consideration and pretrial detention never more than an exception. Accordingly,
detention pending trial must be based on an individualized determination that it is reasonable
3 A/HRC/19/57, para. 68.
4 Ibid., paras. 48–58. See also opinions No. 5/2019, para. 26; and No. 62/2019, paras. 27–29; and
A/HRC/37/6, paras. 118.31–118.33.
5 See Human Rights Committee, general comment No. 35 (2014).
6 Opinions 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.
A/HRC/WGAD/2022/21
GE.22-09192
7
and necessary for such purposes as to prevent flight, tampering with evidence or the
recurrence of the offence.
44.
The Working Group recalls that, 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.7
45.
The situation has been exacerbated by the Government’s failure, for more than 20
years, to consider granting alternatives to detention to Mr. Juárez Rivas so that he could await
trial at liberty and its disregard for article 9 (3) of the Covenant. Moreover, the authorities
ordered his precautionary detention without charge (arraigo), which, according to the
Working Group’s jurisprudence, is incompatible with international human rights law.8
46.
The Working Group finds that a situation of pretrial detention that has lasted for 20
years is in absolute violation of fundamental principles relating to liberty and security of
person, as guaranteed in the Universal Declaration of Human Rights and the Covenant.
47.
The Working Group underscores that the presumption of innocence, which is
fundamental to the protection of human rights, means that the burden rests on the
Government to prove the charge and that a defendant cannot be presumed guilty until the
charge has been proved beyond reasonable doubt. This principle was not observed in the case
of Mr. Juárez Rivas, who has been held in pretrial detention for more than 20 years without
any evidence against him other than the incriminating evidence obtained under torture.
48.
The Working Group is alarmed by this situation and stresses that the fact of having
kept Mr. Juárez Rivas in pretrial detention for more than 20 years constitutes a blatant
violation of the principle of the presumption of innocence, as the pretrial detention has come
to replace the sentence. It is a breach of article 11 (1) of the Universal Declaration of Human
Rights and article 14 (2) of the Covenant.9 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. Yet,
in this case, the pretrial detention has endured to the extent that it has taken the place of the
penalty.
49.
In view of these circumstances, the Working Group insists on the right of Mr. Juárez
Rivas to be presumed innocent and reminds the State of its obligation to treat him as such
until his guilt has been established beyond all reasonable doubt.10
50.
The Working Group recalls that 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.11 Article 9 (2) of the Covenant provides that anyone who is
arrested is to be informed, at the time of arrest, of the reasons for his or her arrest. In the
present case, the Working Group considers that the source has reported credible allegations
that Mr. Juárez Rivas was arrested without being shown an arrest warrant, in violation of
article 9 (1) of the Covenant. In addition, Mr. Juárez Rivas was not informed at the time of
arrest of the reasons for his arrest, in violation of article 9 (2). The Working Group stresses
that the information provided to arrested persons should include not only the general legal
basis of the arrest, but also enough factual specifics to indicate the substance of the complaint,
such as the wrongful act itself.12 In the present case, the failure to provide information on the
nature of the offence allegedly committed by Mr. Juárez Rivas also constitutes a violation of
article 14 (3) (a) of the Covenant, which guarantees the right of detainees to be promptly
informed of the nature and cause of charges against them.13
7 Opinion No. 47/2012, para. 22.
8 Opinion No. 24/2020, para. 112.
9 See general comment No. 35 (2014). See also Madani v. Algeria (CCPR/C/89/D/1172/2003), para.
8.4.
10 See article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of the Covenant.
11 A/HRC/19/57, para. 68. See also opinions No. 36/2018, para. 40; No. 46/2018, para. 48; No. 44/2019,
para. 52; and No. 45/2019, para. 51.
12 General comment No. 35 (2014), para. 25. See also opinions No. 10/2015; No. 25/2018, para. 36; and
No. 46/2019.
13 Human Rights Committee, general comment No. 32 (2007), para. 31.
A/HRC/WGAD/2022/21
8
GE.22-09192
51.
The Working Group recalls that, for a detention to be lawful, any person deprived of
his or her liberty must be given an effective opportunity to challenge its lawfulness before a
court, as provided for in article 9 (4) of the Covenant and article 8 of the Universal
Declaration of Human Rights. The right to challenge the lawfulness of detention before a
court is a self-standing human right that is essential to preserve legality in a democratic
society.14 Failure to uphold this right violates principles 2, 4 and 10 of the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment. Moreover,
under 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
prohibition of all forms of arbitrary deprivation of liberty constitutes a peremptory norm of
international law.15
52.
The Working Group also 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. The Working Group notes that the
necessity and proportionality of Mr. Juárez Rivas’s detention has certainly not been subject
to effective oversight by the judiciary.16
53.
The Working Group is troubled by the source’s claims that Mr. Juárez Rivas was
disappeared and tortured for an unspecified period of time. The situation was such that his
relatives, who were unaware of his fate, reported his kidnapping to the authorities. The
Working Group recalls that enforced disappearances violate numerous substantive and
procedural provisions of the Covenant, including articles 9 and 14, and constitute a
particularly aggravated form of arbitrary detention.17
54.
The Working Group underscores that detaining a person in a manner that deprives the
person of access to the outside world, in particular to the person’s family and counsel,
constitutes a violation of the right to challenge the legality of the detention before a court
under article 9 (4) of the Covenant and of the right to recognition everywhere as a person
before the law under article 6 of the Universal Declaration of Human Rights and article 16
of the Covenant.18 Judicial oversight of deprivation of liberty is a fundamental safeguard of
personal liberty.19 Such oversight is essential to ensure that the detention has a legal basis.
The enforced disappearance of Mr. Juárez Rivas also violated his right to an effective remedy
under article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant.
55.
A further violation relates to the right of detainees to be brought promptly before a
judge, as guaranteed by article 9 (3) of the Covenant, considering that 48 hours is ordinarily
sufficient to satisfy this requirement. In this regard, any delay must be absolutely exceptional
and amply justified.20 The Working Group considers that this was not so in the case of Mr.
Juárez Rivas, as the authorities failed to establish the legal basis for his detention under the
terms required by the Covenant and the Universal Declaration of Human Rights.
56.
Furthermore, the information received reveals a prima facie violation of the
prohibition of torture, which is a peremptory norm of international law, as well as of the
Convention against Torture, the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment and the United Nations Standard Minimum Rules
for the Treatment of Prisoners (the Nelson Mandela Rules).
57.
The situation has been exacerbated by the Government’s failure to consider granting
Mr. Juárez Rivas alternatives to detention, despite the Working Group’s call for States to
14 A/HRC/30/37, paras. 2–3. 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 A/HRC/30/37, para. 11.
16 Ibid., para. 3 and annex (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), para. 47 (a)
and (b) (guideline 1).
17 General comment No. 35 (2014), para. 17. See also opinions No. 5/2020 and No. 6/2020.
18 See opinions No. 32/2019, No. 33/2019 and No. 45/2019.
19 A/HRC/30/37, para. 3.
20 See general comment No. 35 (2014). See also opinions No. 48/2018, para. 63; and No. 59/2018,
paras. 80–83.
A/HRC/WGAD/2022/21
GE.22-09192
9
adopt such measures in the light of the COVID-19 pandemic, and its disregard for article 9
(3) of the Covenant, which provides that the release of persons awaiting trial may be subject
to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should
occasion arise, for execution of the judgment.
58.
The seriousness of these findings leads the Working Group to refer the present case
to the Special Rapporteur on the independence of judges and lawyers and the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, for
appropriate action.
59.
In view of the clear violation of the rules of international human rights law that
occurred in the present case, the Working Group is persuaded that the detention of Mr. Juárez
Rivas is arbitrary and falls under category I.
Category III
60.
The Working Group will proceed to determine whether, in the course of the judicial
proceedings, the key components of a fair, independent and impartial trial were respected.
The right to a fair trial has, since the proclamation of the Universal Declaration of Human
Rights, become established as one of the fundamental pillars of international law to protect
individuals against arbitrary treatment. The Working Group emphasizes that everyone is
entitled to a public hearing by a competent, independent and impartial tribunal with all
guarantees necessary for their defence.21
Absence of flagrancy
61.
The Working Group notes with concern that due process has not been observed in the
case of Mr. Juárez Rivas, as the fundamental rules of a fair, independent and impartial trial
were violated. According to the source, the arrest was made without a warrant from a
competent authority; Mr. Juárez Rivas was not notified of the reason for his arrest; and the
arrest did not involve an urgent situation or flagrante delicto. The officers who arrested Mr.
Juárez Rivas did so in circumstances not involving flagrancy, urgency, or a pursuit following
the commission of an offence.
62.
The Working Group recalls 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.22 One such situation is that of flagrant offences, meaning those offences which
are evident and unmistakable by any reckoning. Thus, the commission of a flagrant offence
is a prerequisite for detention, from which it follows that 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, unless they have an arrest warrant. Nor can they detain persons
pending investigation. All of these guarantees were violated in the case of Mr. Juárez Rivas.
Excessive and disproportionate pretrial detention
63.
Mr. Juárez Rivas has been held in pretrial detention for more than 20 years. It should
be recalled that deprivation of liberty is not only a matter 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.23 It must not be punitive in nature and
must be based on an individual assessment of each person’s case. 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 information received, this did not occur in
the case of Mr. Juárez Rivas, in which the judicial proceedings were obstructed or delayed to
the point where the courts took three years to rule on the appeal that was filed and the judge
hearing the case took no action for the whole of 2005.
21 Universal Declaration of Human Rights, arts. 9–11.
22 See the Mexican Constitution. See also First Chamber of the Supreme Court, Direct amparo appeal
No. 1596/2014.
23 General comment No. 35 (2014), para. 18.
A/HRC/WGAD/2022/21
10
GE.22-09192
64.
The Working Group reiterates that, in accordance with article 9 (3) of the Covenant,
pretrial detention should be the exception rather than the norm and should be ordered for the
shortest time possible.24 In other words, article 9 (3) of the Covenant protects liberty of person
as the prime consideration, with detention never being more than an exception. Accordingly,
detention pending trial must be based on an individualized determination that it is reasonable
and necessary for specific purposes such as to prevent flight, tampering with evidence or the
recurrence of the offence.
Due process
65.
The Working Group underscores that the rights to due process and to a fair trial by a
competent, independent and impartial tribunal are protected by article 14 of the Covenant25
and by the Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, which establish the
importance of a review, by an independent and impartial court, of the arbitrariness and
legality of the deprivation of liberty, as a means of safeguarding the right protected by article
9 of the Covenant.26
66.
In the case of Mr. Juárez Rivas, the Working Group points out that the judge hearing
the case recused herself twice, which casts doubt upon the strict observance of due process
guarantees. Due process was also undermined by the excessive delay in bringing Mr. Juárez
Rivas before a judge, which prevented him from exercising his right of defence, in breach of
the requirement that any delay must be absolutely exceptional and amply justified.27 Mr.
Juárez Rivas was entitled to trial within a reasonable time or to release, in accordance with
article 9 (3) of the Covenant.
67.
The Working Group reiterates that deprivation of liberty should not last longer than
necessary,28 since waiting for a trial to begin or end creates a prolonged state of uncertainty.29
In this context, the Working Group considers that the excessive use of pretrial detention is
contrary to the very essence of the democratic rule of law and therefore directly affects the
quality of democracy.
68.
The Working Group reaffirms that a substantial element of due process is the right to
have one’s conviction and sentence reviewed by a higher tribunal, in accordance with article
14 (5) of the Covenant. A first instance judgment was handed down on 29 May 2013, but the
higher court did not rule on the appeal until 4 November 2016, over three years later. The
unacceptable delay in instituting and advancing the judicial proceedings violates the right to
be tried without undue delay enshrined in article 14 (3) (c) of the Covenant.
69.
The Working Group reiterates that a trial’s promptness is integral to its overall fairness
and to due process in particular, since the longer it takes to hold a trial, the longer the
defendant remains in a situation of legal jeopardy and the greater the chances of witnesses
forgetting details or of evidence disappearing. In the case of Mr. Juárez Rivas, the right to
due process was violated in a situation where, at different stages of the proceedings, the
authorities did not even know where the defendant was being held.
70.
The Working Group emphasizes that the right to be tried without undue delay is one
of the fundamental aspects of the right to a fair trial. Thus, the time it takes to initiate legal
24 Opinions No. 57/2014, No. 24/2015, No. 16/2018, No. 53/2018, No. 75/2018, No. 14/2019 and No.
64/2019. See also A/HRC/19/57, paras. 48–58; letter No. 18/2018, available at
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24225;
CAT/C/MEX/CO/7, paras. 32–33; and Inter-American Commission on Human Rights, Report on the
Use of Pretrial Detention in the Americas (OEA/Ser.L/V/II. Doc. 46/13), 2013, p. 126.
25 See general comment No. 32 (2007).
26 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, para. 9 (principle 6).
27 See general comment No. 35 (2014). See also opinions No. 48/2018, para. 63; and No. 59/2018,
paras. 80–83.
28 General comment No. 35 (2014), para. 37. See also Cagas et al. v. Philippines
(CCPR/C/73/D/788/1997), para. 7.3.
29 Madani v. Algeria, para. 8.4.
A/HRC/WGAD/2022/21
GE.22-09192
11
proceedings should not exceed a few days.30 In the view of the Human Rights Committee, 48
hours is ordinarily sufficient to transport the individual and to prepare for the judicial
hearing;31 any delay longer than 48 hours must remain absolutely exceptional and be justified
under the circumstances.32 Longer detention in the custody of law enforcement officials
without judicial control unnecessarily increases the risk of ill-treatment.33 Laws in most
States parties fix precise time limits, sometimes shorter than 48 hours, and those limits should
also not be exceeded.34
Circumstances of detention and enforced disappearance
71.
The Working Group has indicated that 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 basis for the
arrest, not the subjective motivations of the arresting officer.35 Moreover, persons deprived
of their liberty have the right to be informed by the authorities, upon apprehension, of their
right to legal assistance by counsel of their choice.36 They also have the right to be informed
promptly of the charges against them.37 The disappearance to which Mr. Juárez Rivas was
subjected prevented him from exercising the aforementioned rights, particularly his right to
an effective judicial remedy to challenge his detention and request the protection of his right
to liberty of person.38
72.
These arguments have been ignored by the judiciary, which has kept Mr. Juárez Rivas
in pretrial detention for more than 20 years. As stated above, pretrial detention of such a
duration is excessive and unacceptable. It violates the right of the accused to justice
administered expeditiously through the courts within the time limits and under the terms
established by law, and the right, established in national law, to be tried within four months
if the offence carries a maximum sentence that does not exceed 2 years’ imprisonment, and
within one year if the corresponding sentence exceeds that length of time, unless the
defendant requests an extension.
Torture and other cruel, inhuman or degrading treatment
73.
The Working Group considers that the source has credibly established that Mr. Juárez
Rivas was forced to incriminate himself under torture. It 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 and arbitrary trial.39
74.
The torture inflicted on Mr. Juárez Rivas, which left permanent marks on his body, is
in violation of the absolute prohibition of torture as a peremptory norm of international law,
of article 5 of the Universal Declaration of Human Rights, of article 7 of the Covenant and
of articles 2 and 16 of the Convention against Torture. Furthermore, the torture inflicted upon
Mr. Juárez Rivas seriously 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.40
75.
The Working Group stresses that it is unacceptable that more than 20 years have
passed without an investigation having been opened into the detainee’s allegations of torture.
30 Marques de Morais v. Angola (CCPR/C/83/D/1128/2002), para. 6.3; Terán Jijón v. Ecuador
(CCPR/C/44/D/277/1988), para. 5.3 (five days is excessive); Freemantle v. Jamaica
(CCPR/C/68/D/625/1995), para. 7.4 (four days is excessive).
31 Kovsh v. Belarus (CCPR/C/107/D/1787/2008), paras. 7.3–7.5.
32 Ibid.; see also Fillastre and Bizouarn v. Bolivia (CCPR/C/43/D/336/1988), para. 6.4 (budgetary
constraints do not justify a 10-day delay).
33 CCPR/CO/74/HUN, para. 8.
34 General comment No. 35 (2014), para. 33.
35 Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
Their Liberty to Bring Proceedings Before a Court, principle 7.
36 Ibid., principle 9.
37 See art. 9 (2) of the Covenant.
38 See art. 8 of the Universal Declaration of Human Rights and art. 2 (3) of the Covenant.
39 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); and No. 32/2019,
para. 43.
40 Opinions No. 46/2017, para. 25; No. 53/2018, para. 77; and No. 24/2020, para. 108.
A/HRC/WGAD/2022/21
12
GE.22-09192
In the light of these circumstances, the Working Group decides to refer the present case to
the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, for appropriate action.
76.
The burden is on the State to prove that statements made by the accused have been
given of their own free will.41 The source has made clear that torture, coercion, threats and
ill-treatment were used to obtain a statement from Mr. Juárez Rivas. 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.42
77.
The Working Group reiterates that the Government should have ensured that an
effective investigation was carried out into the allegations of torture with a view to
prosecuting the torturer. Such activities help to eliminate impunity in general and play a key
role in delivering accountability for victims and society, which did not happen in the present
case.
Automatic pretrial detention
78.
The Working Group reminds the Government that the application of automatic pretrial
detention constitutes a form of arbitrary detention and is contrary to the human rights
obligations to which Mexico has voluntarily committed itself before the international
community. Automatic pretrial detention violates, inter alia, the right to liberty of person, the
principle of legality, the presumption of innocence, due process guarantees and the right to
an effective remedy. It also increases the likelihood of a person’s being subjected to torture
or other cruel, inhuman or degrading treatment. The source alleges that Mr. Juárez Rivas has
been subjected to automatic pretrial detention and has thus been deprived of the
aforementioned fundamental rights.
79.
The Working Group is satisfied that, in the case of Mr. Juárez Rivas, 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.
80.
The Working Group concludes that the Mexican authorities have committed serious
breaches of international norms relating to the right to a fair, independent and impartial trial,
in contravention of articles 9, 10 and 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. Juárez Rivas’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. These violations are of such gravity as to lead the Working Group to
characterize the detention of Mr. Juárez Rivas as arbitrary under category III.
Category V
81.
The Working Group cannot help but note that the situations experienced by Mr. Juárez
Rivas are indicative of serious discrimination, in violation of the State party’s obligations
under the Universal Declaration of Human Rights and articles 2 and 26 of the Covenant. The
latter article states that all persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the law must prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any grounds. These provisions are consistent with and are reinforced by
the Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, in particular principle 5 (2).
82.
In its Opinion No. 1/2018, the Working Group established that the constitutional
provisions allowing for automatic pretrial detention are discriminatory as they draw a
distinction between persons who may apply for alternatives to imprisonment and those who
41 General comment No. 32 (2007), para. 41.
42 CAT/C/BHR/CO/2-3, para. 16.
A/HRC/WGAD/2022/21
GE.22-09192
13
may not, thereby ignoring the equality of human beings. The Working Group concluded that
discrimination based on the “different status” of certain defendants (those charged with
offences for which alternatives to detention are not permitted) is prohibited under articles 2
and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.
83.
The Working Group considers that the facts examined in the present case constitute a
violation of international law as they relate to discrimination, with the result that the detention
of Mr. Juárez Rivas is deemed arbitrary under category V.
Concluding remarks
84.
The Working Group is concerned that Mr. Juárez Rivas has been held in pretrial
detention for more than 20 years. It reiterates its opinion that mandatory or automatic pretrial
detention is in breach of the State’s obligations under international human rights law.
85.
The present case is one of many the Working Group has received in recent years in
connection with arbitrary deprivation of liberty in Mexico. The Working Group is concerned
that this may reflect a systemic problem of arbitrary detention, which, should it continue,
may constitute a serious violation of international law. The Working Group reiterates that,
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.43
86.
The Working Group, noting that the list of offences for which mandatory pretrial
detention is required was expanded in 2019, urges the Government to amend, derogate from
or revoke the constitutional and legal provisions governing mandatory pretrial detention with
a view to eradicating this practice and bringing its crime policies into line with the obligations
of Mexico under international law.
87.
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 considerable period of time has elapsed since its last visit to Mexico in
November 2002, the Working Group considers that it would be timely to continue its
dialogue with the Government by means of another official visit. The Working Group notes
that the Government extended a standing invitation to all thematic special procedure mandate
holders of the Human Rights Council in March 2001. Since Mexico is currently a member of
the Council, it would also be timely for the Government to reaffirm its standing invitation.
Since 2015, the Working Group has submitted 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 give a positive response to these requests without
delay.
Disposition
88.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Juan Carlos Juárez Rivas, 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.
89.
The Working Group requests the Government of Mexico to take the steps necessary
to remedy the situation of Mr. Juárez Rivas without delay and bring it into conformity with
the relevant international norms, including those set out in the Universal Declaration of
Human Rights and the International Covenant on Civil and Political Rights.
90.
The Working Group urges the Government to take all necessary measures to prevent
the recurrence of situations of this nature.
91.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Juárez Rivas immediately and accord
him an enforceable right to compensation and other reparations, in accordance with
43 Opinion No. 47/2012, para. 22.
A/HRC/WGAD/2022/21
14
GE.22-09192
international law. Such a remedy would be especially appropriate given the interpretative
declaration of Mexico regarding article 9 (5) of the Covenant, which it entered upon acceding
thereto, according to which:
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.
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.
Juárez Rivas and to take appropriate measures against those responsible for the violation of
his rights.
93.
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.
94.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
95.
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. Juárez Rivas has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Juárez
Rivas;
(c)
Whether an investigation has been conducted into the violation of Mr. Juárez
Rivas’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.
96.
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.
97.
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.
98.
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.44
[Adopted on 4 April 2022]
44 Human Rights Council resolution 42/22, paras. 3 and 7.