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A/HRC/WGAD/2022/21

Opinion No. 21/2022 concerning Juan Carlos Juárez Rivas (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.22-09192 (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

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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

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.

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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.