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.23-04623 (E) 300323 300323
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its ninety-fifth session, 14–18 November 2022
Opinion No. 70/2022, concerning Víctor Hugo Aguilar Oliver (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 4 May 2022 the Working Group
transmitted to the Government of Mexico a communication concerning Víctor Hugo Aguilar
Oliver. The Government replied to the communication on 4 August 2022. The State is a party
to the International Covenant on Civil and Political Rights.
3.
The Working Group regards deprivation of liberty as arbitrary in the following cases:
(a)
When it is clearly impossible to invoke any legal basis justifying the
deprivation of liberty (as when a person is kept in detention after the completion of his or her
sentence or despite an amnesty law applicable to him or her) (category I);
(b)
When the deprivation of liberty results from the exercise of the rights or
freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of
Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25,
26 and 27 of the Covenant (category II);
(c)
When the total or partial non-observance of the international norms relating to
the right to a fair trial, established in the Universal Declaration of Human Rights and in the
relevant international instruments accepted by the States concerned, is of such gravity as to
give the deprivation of liberty an arbitrary character (category III);
(d)
When asylum-seekers, immigrants or refugees are subjected to prolonged
administrative custody without the possibility of administrative or judicial review or remedy
(category IV);
(e)
When the deprivation of liberty constitutes a violation of international law on
the grounds of discrimination based on birth, national, ethnic or social origin, language,
religion, economic condition, political or other opinion, gender, sexual orientation, disability,
or any other status, that aims towards or can result in ignoring the equality of human beings
(category V).
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2022/70
General Assembly
Distr.: General
23 March 2023
English
Original: Spanish
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Submissions
Communication from the source
4.
Victor Hugo Aguilar Oliver is a national of Mexico, born on 11 August 1977, and was
35 years old at the time of his arrest.
5.
According to the information received, Mr. Aguilar Oliver was arrested on 5 August
2013, between 7.30 and 8 p.m., at the door of a restaurant in the city of Tuxtla Gutiérrez, by
persons who did not identify themselves, but who claimed to be police officers of the then
Attorney General’s Office of the State of Chiapas. However, they failed to produce a suitable
document proving that they belonged to that agency or to produce an order or a decision of
any other kind issued by a public authority to carry out the deprivation of liberty. The source
states that the arrest, carried out with violence, was not supported by a judicial or ministerial
order or warrant ordering Mr. Aguilar Oliver to be deprived of his liberty. However, the
prosecutor produced a search and location order dated 6 August 2013, i.e., one day after the
arrest took place.
6.
The source indicates that Mr. Aguilar Oliver was taken to facilities that do not belong
to any official agency and, four hours after his arrest, was taken into the custody of the public
prosecutor. It is alleged that during that time he was tortured by the method known as the
“wet submarino”, being repeatedly asphyxiated with water, with the aim of forcing him to
sign an incriminating statement on facts of which he had no knowledge but which related to
the kidnapping and homicide of two of his relatives by marriage. In addition, they threatened
to attack women family members and inflict on them the same, or even worse, suffering. Mr.
Aguilar Oliver allegedly signed documents that are now known to be statements in which he
incriminated himself in the unfortunate events in which his in-laws lost their lives.
7.
The source reports that on 9 August 2013, Mr. Aguilar Oliver was transferred to the
State Social Rehabilitation Centre for Sentenced Persons No. 14, where he is being held.
8.
The source alleges that, in the first place, it was the prosecutor who illegally ordered
his detention, despite the fact that it was arbitrary, and tried to justify it with an illegitimate
urgent detention order.
9.
According to the information received, the then judge of the Third Criminal Court of
the Cintalapa Judicial District, without reviewing the legality of the arrest, ratified the formal
detention and then issued a formal arrest warrant, disregarding the arbitrary nature of the
detention and without looking into the violations of Mr. Aguilar Oliver’s human rights.
10.
The source states that, in March 2019, the judge of the First Criminal Court of the
Cintalapa Judicial District handed down a sentence of 110 years’ imprisonment. The trial
judge found Mr. Aguilar Oliver responsible for aggravated abduction, disregarding the
violations of Mr. Aguilar Oliver’s human rights during his detention, and thereby violating
due process in the criminal proceedings.
11.
An appeal was filed, and the higher court ordered the reconsideration of the
proceedings to allow further expert examinations in the investigation of torture.
12.
The source states that Mr. Aguilar Oliver’s defence filed an application for indirect
amparo since, during the criminal investigation, expert psychological evaluations had
already been carried out that concluded that he and another co-defendant presented symptoms
related to torture. As the amparo procedure did not give satisfactory results, Mr. Aguilar
Oliver did not agree to a further evaluation. A further evaluation was nevertheless carried
out, which concluded that with the passage of time the sequelae of torture had already faded.
13.
On 27 January 2020, the Appeal Court declared the judgment of 31 May 2019 legally
null and void. In addition, it struck down the lower court’s final judgment of 13 March 2019
and ordered reconsideration of the psychological evaluation procedure, noting that Mr.
Aguilar Oliver’s consent had to be obtained for a new expert examination.
14.
The source states that, once the appeal court ruling had been applied, the lower
criminal court again handed down a conviction, confirming the sentence of 110 years’
imprisonment and a fine. Dissatisfied with that ruling, Mr. Aguilar Oliver’s defence filed a
legal appeal. This time the case was tried by the First Regional Collegiate Criminal Court
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No. 1, Zone 01 Tuxtla. The judgment was found to be unconstitutional for violation of the
detainee’s human rights.
15.
On 9 June 2021, the First Regional Collegiate Criminal Court amended the lower
court’s judgment, sentencing Mr. Aguilar Oliver to 90 years in prison, a decision that was
notified to the public defender on 11 June. This ruling is claimed to be illegal, being based
on evidence obtained in violation of human rights, such as the ministerial statements, which
are the only evidence against those who were convicted, including Mr. Aguilar Oliver.
16.
The source states that Mr. Aguilar Oliver’s defence filed a direct amparo suit against
this final judgment, a case that came before the Second Collegiate Court of the Twentieth
Circuit on 9 August 2021 as case No. 269/2021. The amparo suit is pending.
17.
Mr. Aguilar Oliver has been deprived of his liberty since 5 August 2013, the day of
his arbitrary arrest. He has been in prison for more than 3,000 days, accused of a crime he
did not commit and which there is no evidence that he committed it.
18.
The source states that Mr. Aguilar Oliver is accused of the crime of aggravated
abduction, for which he is being prosecuted. However, the criminal case file contains no
witness testimony or expert, documentary or material evidence showing that he participated
in the acts attributed to him. On the contrary, the prosecutor bases his accusation solely on
Mr. Aguilar Oliver’s self-incriminating statement and the statements of two co-defendants,
which were obtained after arbitrarily depriving them of their liberty and torturing them to
incriminate themselves.
19.
The source states that not only were Mr. Aguilar Oliver’s rights to liberty and personal
integrity and security violated, but also his judicial guarantees, namely to be read his rights,
to be informed of the reasons for his detention, to be able to communicate with his family
and to be assigned legal counsel.
20.
The source alleges that there is evidence of all these human rights violations in the
preliminary inquiry against Mr. Aguilar Oliver and in criminal case file No. 21/2017 of the
First Criminal Court of the Judicial District of Cintalapa.
21.
However, proceedings against Mr. Aguilar Oliver continue after more than eight
years’ deprivation of liberty.
22.
The source believes it is necessary to emphasize that Mr. Aguilar Oliver did not
participate in any criminal act. In no way, shape or form did he carry out the acts that the
prosecution accuses him of, meaning that he is innocent of the charges brought by the
prosecutor and for which he has been unjustly deprived of his liberty.
Response from the Government
23.
On 4 May 2022, the Working Group transmitted the source’s allegations to the
Government of Mexico, requesting detailed information on the case of Mr. Aguilar Oliver,
including clarification of the legal and factual grounds for his detention and an explanation
of how his detention is compatible with the international human rights obligations of Mexico.
The Working Group called on the Government to ensure Mr. Aguilar Oliver’s physical and
mental integrity. Given the context of the coronavirus disease (COVID-19) pandemic, and in
accordance with the recommendations of the World Health Organization regarding the
response to COVID-19 in places of detention, the Government was urged to prioritize the use
of alternative non-custodial measures at all stages of the criminal justice process.
24.
The Government states that, notwithstanding the source’s assertion, Mr. Aguilar
Oliver was arrested on 6 August 2013, under a search and locate warrant issued by the
prosecutor of the then Attorney General’s Office of the State of Chiapas, and not on 5 August
2013, as asserted by the source.
25.
The Government denies that Mr. Aguilar Oliver was repeatedly tortured by
asphyxiation with water in order to make him sign a statement incriminating himself for
abduction and murder. The Government reports that Mr. Aguilar Oliver was immediately
brought before the prosecutor and transferred on 9 August 2013 to the State Social
Rehabilitation Centre for Sentenced Persons No. 14, where he is being held.
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26.
The Government has submitted an explanation regarding the psychological treatment
for the torture inflicted on Mr. Aguilar Oliver. It was subsequently determined that he himself
had refused to pursue the rehabilitation treatment provided in accordance with the Manual on
the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (Istanbul Protocol).
27.
The Government states that, in March 2019, the judge of the First Criminal Court of
the Cintalapa Judicial District handed down a sentence of 110 years’ imprisonment.
However, Mr. Aguilar Oliver’s defence filed an appeal. On 27 January 2020 the higher court
ordered a review of the proceedings to permit further expert examinations in the torture
investigation.
28.
The First Criminal Court, applying the higher court’s ruling, issued a conviction
upholding the sentence of 110 years’ imprisonment and a fine. Mr. Aguilar Oliver’s defence
appealed the sentence. On 9 June 2021, the higher court ruled that it should be amended,
sentencing Mr. Aguilar Oliver to 90 years’ imprisonment. The same day the defence appealed
the decision, and this appeal has not yet been resolved.
29.
The Government describes the facts of the case in respect of the abduction and murder
and explains that, as established as a result of the investigations ordered in August 2013, the
Prosecution Service ordered the arrest of four individuals based on the preliminary
investigation filed, one of whom was Mr. Aguilar Oliver. The four were alleged to be the
perpetrators of femicide, a crime established and punishable under article 15 bis (A) (3), read
in conjunction with article 164 bis, of the Criminal Code of the State of Chiapas.
30.
The Government states that, on 14 August 2013, a formal arrest warrant was issued
against the four individuals, as the alleged perpetrators of the crime of femicide. They, in
turn, appealed the decision in an application for amparo, which was heard by the First District
Court of the State of Chiapas. In judgments dated 14 and 19 November 2014, amparo and
protection in federal court were granted for the purpose of issuing a new judgment, along the
lines described in the judgments.
31.
The Government asserts that, in compliance with these determinations, the Criminal
Court issued new judgments on 21 and 24 March 2014, ordering the release of the defendants,
including Mr. Aguilar Oliver, for lack of evidence to prosecute for femicide. However, at the
same time, the judge issued an arrest warrant against them as suspects in the crime of
aggravated abduction.
32.
According to the Government, on 14 August 2013, the judge at the Second Serious
Crimes Court of the Judicial Districts of Chiapas, Cintalapa and Tuxtla registered the
corresponding investigation. On 19 August 2013, an arrest warrant was issued, and on 23
September 2013, the corresponding detention order was issued. The provisions of article 19
of the Constitution in relation to serious crimes having been met, pretrial detention was
deemed appropriate in accordance with that article.
33.
The Government asserts that, as found by the First Regional Collegiate Criminal Court
of Tuxtla in its ruling on appeal, the detention was duly notified, since all the necessary
requirements of article 18 of the Constitution had been met and the investigation file
contained an order for search, location and presentation. The appeal ruling notes that the
order is substantiated and reasoned, and that the file contains the document signed by the
prosecutor ordering the search, location and presentation of Mr. Aguilar Oliver, and the
document ordering the transfer of the accused.
34.
The Government states that at the time of Mr. Aguilar Oliver’s arrest he was read his
rights, as can be seen from the investigation file, and concludes that the arrest was based on
his implication in the abduction and on the evidence considered by the judicial authority, and
was therefore justified.
35.
The Government states that the criminal case file shows that, by order dated 5 August
2013, signed by the specialized police officers, Mr. Aguilar Oliver was transferred to the
Prosecution Service.
36.
The Government gives an account of the facts, stating that Mr. Aguilar Oliver was
informed of the reasons for his arrest, for which there was a warrant, and of all his rights.
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Moreover, he was immediately brought before the prosecutor in the case, having been
arrested on the prosecutor’s orders as a result of all the investigations that had been carried
out. The legality of his detention was also upheld by the higher court, which issued the
detention order. This order was ratified by the judge in the Second Serious Crimes Court of
the Judicial Districts of Chiapas, Cintalapa and Tuxtla, as well as by the First Regional
Collegiate Criminal Court, Zone 01 Tuxtla.
37.
Since the offences of which he was accused are deemed serious crimes under the
Mexican legal system and there was a well-founded risk that Mr. Aguilar Oliver would evade
justice, the arrest was carried out under an urgent detention order and on 19 August 2013 the
Second Serious Crimes Court of the Judicial Districts of Chiapas, Cintalapa and Tuxtla issued
an arrest warrant.
38.
According to the Government, then, it cannot be said that Mr. Aguilar Oliver was
detained for exercising his rights or freedoms under articles 7, 13, 14, 18, 19, 20 and 21 of
the Universal Declaration of Human Rights, or under articles 12, 18, 19, 21, 22, 25, 26 and
27 of the Covenant; rather, he was detained on suspicion of the crime of abduction and his
detention is therefore not arbitrary under category II.
39.
The Government also denies that the detention is arbitrary under category III, as there
has been no violation of international provisions and standards relating to the right to a fair
trial.
40.
The Government states that Mr. Aguilar Oliver’s right to be heard by an independent
and impartial tribunal was respected at all times, as was his right to have an adequate defence
and to challenge the decisions taken as he deemed appropriate.
41.
In addition, the Government states that Mr. Aguilar Oliver’s arrest was based on a
statement by a person who admitted having participated with Mr. Aguilar Oliver in the
abduction of the victims, which led to the decision to arrest him as a matter of manifest
urgency; those circumstances were eventually confirmed by Mr. Aguilar Oliver in his own
statement, in which he admitted his part in depriving the victims of their liberty. For all these
reasons, the Prosecution Service ordered his arrest and brought criminal charges against him.
42.
The Government reports that on 14 August 2013 the legal situation was resolved
through the issuance of an order for the detention of Mr. Aguilar Oliver for the crime of
femicide. His counsel did not agree with that decision and filed an application for indirect
amparo, which was heard by the First District Court. The court granted amparo, a ruling that
was challenged by the Prosecution Service in an appeal for review before the Fourth
Collegiate Court of the Twentieth Circuit, which upheld the decision. For this reason, on 21
March 2014, an order was issued for his release in relation to the crime of femicide and a
detention order for aggravated abduction was issued.
43.
Mr. Aguilar Oliver’s counsel filed an application in amparo against that decision. The
First District Court of the State of Chiapas heard the case and granted protection in federal
court. This decision was again challenged by the Prosecution Service in an appeal for review,
leading the Fourth Collegiate Court of the Twentieth Circuit to amend the decision of the
First District Court. Accordingly, on 11 February 2016, a new constitutional order was issued
reinstating imprisonment for aggravated abduction.
44.
The Government states that all the requirements for due process under Category III
have therefore been met, and that none have been violated.
Additional comments from the source
45.
The Working Group transmitted the Government’s response to the source on 4 August
2022. The source provided its final comments and observations to the Government’s response
on 19 August, maintaining its original allegations and calling in question many of the
assertions made by the Government in its response, stressing that their veracity is not
officially substantiated.
46.
The source insists that Mr. Aguilar Oliver was deprived of his liberty on 5 August
2013 without a court order. It states that the case file itself contains evidence of this, such as
the statements dated 26 August 2016 by two witnesses, who both mentioned that Mr. Aguilar
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Oliver was deprived of his liberty against his will, with excessive use of force and by persons
unknown, at approximately 8 p.m. on 5 August 2013.
47.
In addition, the source points out that the Government omitted to mention in its
response that, in ruling on the appeal, the First Regional Criminal Chamber of the High Court
of Justice of the State of Chiapas issued a new decision on 2 June 2022 granting Mr. Aguilar
Oliver amparo and protection in federal court. In the new decision, the Regional Chamber
considered that the fundamental rights of the convicted persons, including Mr. Aguilar
Oliver, were violated from the moment the search, location and production order was issued,
since the minimum requirements justifying the order were not met, and it therefore found that
it was not issued in accordance with the constitutional provisions on the human right to
personal liberty.
48.
Similarly, the Regional Chamber that issued the new decision found that the urgent
detention order against Mr. Aguilar Oliver violated the rights under article 16 of the
Constitution, because the prosecutor’s office had failed to meet the necessary concurrent
requirements for its issuance or to duly substantiate the grounds for deprivation of liberty.
However, despite the absence of any evidence to prove that he was responsible for the crime
of which he was accused, the court sentenced Mr. Aguilar Oliver to 65 years in prison.
49.
The source adds that the torture undergone by Mr. Aguilar Oliver is recorded in the
court report on his injuries following an examination requested by counsel and carried out on
9 August 2013, and which described the injuries he presented as a result of torture. In
addition, a psychological examination (vol. IX, p. 559 of the file) performed by a professional
analyst assigned to the First Family Court of the Judicial District of Tuxtla found that Mr.
Aguilar Oliver showed symptoms of torture.
Discussion
50.
The Working Group thanks the source and the Government for their submissions.
51.
In determining whether Mr. Aguilar Oliver’s deprivation of liberty was arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
requirements constituting arbitrary detention, the burden of proof should be understood to
rest upon the Government if it wishes to refute the allegations.2
52.
The Working Group wishes to reaffirm that States have the obligation to respect,
protect and implement all human rights and fundamental freedoms, including liberty of the
person. This requires ensuring that any national law allowing deprivation of liberty is drafted
and implemented in accordance 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. Moreover, even if the detention is in conformity with
national legislation, regulations and practices, the Working Group is mandated to assess the
judicial proceedings and the law itself to determine whether the detention is also compatible
with the relevant provisions of international human rights law.
Category I
53.
The Working Group recalls 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. In this sense, 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 specific
case by means of a detention order issued by a competent, independent and impartial judicial
authority.3 The Working Group has maintained since its early years that the practice of
arresting persons without a warrant renders their detention arbitrary.4 Any form of detention
2 A/HRC/19/57, para. 68.
3 Ibid. See, in addition, Opinions No. 36/2018, para. 40; No. 46/2018, para. 48; No. 44/2019, para. 52;
and No. 45/2019, para. 51.
4 Opinions No. 30/2018, para. 39; No. 38/2018, para. 63; No. 47/2018, para. 56; No. 51/2018, para. 80;
and No. 63/2018, para. 27.
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or imprisonment should be ordered by a judicial or other authority in accordance with the
law or be immediately subjected to the effective oversight of that authority, whose status and
remit should afford the strongest possible guarantees of competence, impartiality and
independence. In the view of the Human Rights Committee, 48 hours is ordinarily sufficient
to transport the individual and to prepare for the judicial hearing;5 any delay longer than 48
hours must remain absolutely exceptional and be justified under the circumstances.6 Longer
detention in the custody of law enforcement officials without judicial control unnecessarily
increases the risk of ill-treatment.7
54.
In addition, article 9 (2) of the Covenant provides that anyone who is arrested shall be
informed, at the time of their arrest, of the reasons for the arrest. The information provided
to the detained person should include not only the general legal basis for the detention, but
also specifics of the event giving rise to the detention sufficient to establish both the legal
elements of the complaint and the description of the unlawful act itself.8
55.
The source alleges that Mr. Aguilar Oliver was arrested on 5 August 2013, by
unidentified persons. They detained him without presenting him with an arrest warrant or
court order mandating the deprivation of liberty, without giving him any kind of explanation
and with excessive use of force and violence. The source claims that, surprisingly, the case
file contains a search and location order with the date of the arrest altered to 6 August 2013,
i.e., one day after the detention took place. The source has made it clear that Mr. Aguilar
Oliver was not arrested in flagrante delicto. The Government has stated that the search was
treated as urgent.
56.
The source alleges that effective judicial oversight of the necessity and proportionality
of detention has not been guaranteed.9 The source states that Mr. Aguilar Oliver was taken to
facilities that do not belong to any official agency and, four hours after his arrest, was placed
in the custody of the public prosecutor. It is alleged that during that time he was tortured by
the method known as the “wet submarino”, i.e., being repeatedly asphyxiated with water,
with the aim of forcing him to sign an incriminating statement on facts of which he had no
knowledge but which related to the abduction and homicide of two of his relatives by
marriage. In addition, they threatened to attack women family members and inflict on them
the same, or even worse, suffering. Mr. Aguilar Oliver allegedly signed documents that are
now known to be statements in which he incriminated himself in the unfortunate events in
which his in-laws lost their lives.
57.
The Working Group notes that the Government has not effectively rebutted these
statements, as it has not provided any legal basis to substantiate the exact date of the arrest
warrant, beyond denying that the prosecutor produced a search and location warrant dated 6
August 2013, one day after the detention of Mr. Aguilar Oliver.
58.
According to the Government, the arrest was ordered by the Prosecution Service and
carried out by its agents, which the Government justifies by stating that such actions are
guaranteed by the national legal system and are compliant with applicable international
standards. It is important to note here that when the Working Group analyses a complaint in
this category, it must establish whether or not the actions mentioned by the Government are
in line not only with national law, but also with international legal standards.10
59.
The source reports that on 9 August 2013, Mr. Aguilar Oliver was transferred to the
State Social Rehabilitation Centre for Sentenced Persons No. 14. Mr. Aguilar Oliver is still
5 Kovsh v. Belarus (CCPR/C/107/D/1787/2008), paras. 7.3–7.5.
6 Ibid. See also Fillastre and Bizouarn v. Bolivia (CCPR/C/43/D/336/1988), para. 6.4 (budgetary
constraints did not justify 10-day delay).
7 CCPR/CO/74/HUN, para. 8.
8 Human Rights Committee general comment No. 35 (2014), para. 25. See also Opinions No. 10/2015;
No. 25/2018, para. 36; and No. 46/2019.
9 A/HRC/30/37, 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 (Guideline 1).
10 E/CN.4/2005/6/Add.4, para. 54.
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detained as of the date of receipt of this case, and has not received a final judgment or a
definitive solution to his situation.
60.
In the present case, the Working Group considers that the source has provided credible
information to the effect that Mr. Aguilar Oliver was detained without being shown an arrest
warrant. He was also not informed of the reasons for his detention at the time of his arrest
and was not immediately brought before a judge, in violation of article 9 of the Covenant.
61.
The Working Group notes with concern that Mr. Aguilar Oliver, after being detained
without an arrest warrant, was not immediately brought before a judge for judicial review of
the legality of his detention. On the contrary, it is alleged that he was taken for several hours
to an unknown location, where he was subjected to torture and forced to sign incriminating
statements. He was subsequently handed over to the prosecutor. Even though Mr. Aguilar
Oliver’s counsel subsequently filed a writ of amparo to challenge the legality of his
deprivation of liberty, this is not a substitute for the judicial review that must take place
immediately after the arrest, especially if the arrest is made without a warrant, and which
must take place within 48 hours.
62.
In addition, the Working Group reiterates that, in accordance with its established
jurisprudence and practice, the Public Prosecutor’s Office is not considered an independent
judicial authority and does not meet the criteria of article 9 of the Covenant to review the
legality of detention.11 The legal system should provide for a separation between the authority
conducting the investigation and the authorities responsible for detention and for ruling on
questions related to pretrial detention. This separation is a necessary requirement to prevent
conditions of detention from being used to impair the effective exercise of the right to defend
oneself, favour self-incrimination or allow pretrial detention to amount to a form of advance
punishment. The intervention of the prosecutor in this way in urgent cases or serious crimes,
despite what it entails for the protection of the human rights of citizens, implies an action
incompatible with the standards of protection of international human rights law. According
to international human rights law, not everything that is lawful in the domestic legal order is
lawful in the international legal system, and even more so when freedom and justice are at
stake.12
63.
What the source describes in its complaint violates the rights guaranteed in articles 3
and 9 of the Universal Declaration of Human Rights; article 9 (2) of the Covenant; principle
10 of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment; and principle 7 of 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.13
Mandatory or automatic pretrial detention
64.
The Working Group recognizes the obligation of States to investigate and prosecute
those responsible for crimes under their national legislation and, in this regard, wishes to
emphasize that this opinion is adopted without prejudice to the guilt or otherwise of Mr.
Aguilar Oliver. However, the Working Group is extremely concerned that, according to the
information received from the source, Mr. Aguilar Oliver has been held in prison for more
than 3,000 days, accused of a crime that he has not been proved to have committed and
without effective evidence of his guilt. This length of time is not only excessive, but also
means that the detention violates the international human rights standards contained in the
Universal Declaration of Human Rights and the Covenant. The Working Group also notes
that this violation of Mr. Aguilar Oliver’s human rights contravenes the requirement that, in
order not to be qualified as arbitrary, detention must not be prolonged beyond the period for
11 Human Rights Committee general comment No. 35 (2014), para. 32. See also Opinions No. 14/2015,
para. 28; No. 5/2020, para. 72; and No. 41/2020, para. 60. See also A/HRC/45/16/Add.1, para. 35.
12 American Convention on Human Rights, arts. 2, 8 and 25;
13 See also E/CN.4/2005/6/Add.4, para. 54.
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which the State party can provide appropriate justification;14 this limit has been exceeded in
this case and pretrial detention has become a substitute for punishment.
65.
The Working Group also emphasizes that, in accordance with article 9 (3) of the
Covenant, pretrial detention should be the exception rather than the rule and should be
ordered for the shortest possible time. In other words, liberty should be the prime
consideration and pretrial detention an exception. Detention pending trial must thus be based
strictly on an individualized determination that it is reasonable and necessary for such
purposes as to prevent flight, tampering with evidence or the recurrence of the crime.
66.
Disregarding the provisions of article 9 (3), of the Covenant, no consideration was
ever given to granting Mr. Aguilar Oliver alternative measures to serve his sentence, despite
the appeal made to States regarding the use of these measures in context of the COVID-19
pandemic, which aggravated the situation. Moreover, he was placed in mandatory pretrial
detention, which, according to the Working Group’s jurisprudence, should be abolished.15
67.
The Working Group recalls that the application of automatic pretrial detention
constitutes a form of arbitrary detention, which is contrary to the human rights obligations
contained in the Universal Declaration of Human Rights and the Covenant. In addition,
automatic pretrial detention increases the chances of a person being subjected to torture or
other cruel, inhuman or degrading treatment. The source insists that Mr. Aguilar Oliver has
been a victim of the application of this measure, thus depriving him of the fundamental rights
enumerated above.
68.
In 2018, the Working Group found that mandatory pretrial detention in Mexico
violated the presumption of innocence, due process, the right to an effective remedy and
equality before the law, and was contrary to the provisions of articles 9 and 14 of the
Covenant.16 That same year the Working Group sent a warning to the Government in respect
of the plans for legislative reforms aiming to extend the list of crimes subject to mandatory
pretrial detention under article 19 of the Constitution.17 However, the legal amendments were
carried out.18 Since then, the Working Group has repeatedly found in its jurisprudence on
Mexico that the problem of automatic pretrial detention is widespread and occurs in most
cases of arbitrary detention.19 On 5 September 2022, the Working Group urged Mexico to
abolish as a matter of urgency the “mandatory” or “automatic” pretrial detention enshrined
in the Constitution, in view of the fact that one of its most serious consequences was that
many Mexicans spend more than a decade deprived of their liberty awaiting trial, without
having been sentenced and in conditions that represent a serious risk to their lives and
personal integrity,20 as in the case of Mr. Aguilar Oliver.
69.
The Working Group reiterates its call to the Government of Mexico to bring the
provisions of domestic law, regardless of rank in the legal order and including article 19 of
the Constitution, into line with the international obligations that the State has assumed, and
in particular articles 9 and 14 of the Covenant.
Incommunicado detention and torture
70.
The Working Group is concerned at the source’s claims that Mr. Aguilar Oliver was
held incommunicado for four hours, during which time he was allegedly severely tortured
for the purpose of self-incrimination. Denying a family information about the fate and
whereabouts of a detained person, even for a short time, may constitute enforced
14 A/HRC/19/57, paras. 48–58. See also Opinions No. 5/2019, para. 26; and No. 62/2019, paras. 27–29.
See also A/HRC/37/6, paras. 118.31–118.33.
15 Opinion No. 24/2020, para. 112.
16 See Opinion No. 1/2018.
17 Communication 18/2018, dated 30 November 2018. May be consulted at the following address:
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24225.
18 Opinions No. 64/2019, para. 87; and No. 24/2020, para. 112.
19 Opinion No. 1/2022, paras. 65–71.
20 Office of the United Nations High Commissioner for Human Rights, “Mexico should overturn
mandatory pre-trial detention: UN experts,” press release, 5 September 2022. Available from
www.ohchr.org/es/press-releases/2022/09/mexico-should-overturn-mandatory-pre-trial-detention-un-
experts.
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disappearance. 21 Enforced disappearances violate several substantive and procedural
provisions of the Covenant, including articles 9 and 14, and constitute a particularly serious
form of arbitrary detention.22 The Government has provided a lengthy explanation about the
way in which Mr. Aguilar Oliver was treated and the reasons why he refused to follow the
psychological procedure in relation to torture, and acknowledges that Mr. Aguilar Oliver
showed symptoms of having suffered torture and was therefore granted a judicial review.
71.
The source’s allegations reveal a prima facie violation of the absolute prohibition of
torture, a peremptory norm of international law that is, moreover, enshrined in the Covenant,
the Convention against Torture, the Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment (principle 6) and the United Nations Standard
Minimum Rules for the Treatment of Prisoners (Nelson Mandela Rules) (rule 1).
72.
Obtaining evidence by means of a confession under torture confers an arbitrary
character on the detention, according to international standards that prohibit the practice of
torture under any circumstances and specifically those provisions that refer to the
inadmissibility of evidence obtained under torture. This implies that no one should be
compelled to testify against him or herself or to confess guilt, as provided for in article 14 (3)
(g), of the Covenant; principle 10 of the Body of Principles for the Protection of All Persons
under Any Form of Detention or Imprisonment; and article 15 of the Convention against
Torture.
73.
Depriving a person of liberty and holding them incommunicado, so that they have no
access to the outside world, in particular to their family or lawyer, exposes them to torture
and violates their right to challenge the lawfulness of their detention before a court,
recognized in article 9 (4) of the Covenant, as well as their right to recognition everywhere
as a person before the law, enshrined in article 6 of the Universal Declaration of Human
Rights and article 16 of the Covenant.23 Judicial oversight of the deprivation of liberty is a
fundamental guarantee of individual freedom and personal integrity. 24 This oversight is
essential to ensure that the deprivation of liberty has a legal basis. In this sense, the
incommunicado detention of Mr. Aguilar Oliver violated his right to an effective remedy,
recognized in article 8 of the Universal Declaration of Human Rights and article 2 (3) of the
Covenant.
74.
Without regard for the provisions of article 9 (3) of the Covenant – which establish
that the release of persons who are to be tried may be subject to guarantees to appear for trial,
at any other stage of the judicial proceedings, or for execution of the judgment – no thought
has ever been given to granting Mr. Aguilar Oliver alternative means of serving his sentence,
which aggravated the situation; this despite the appeal made to States regarding the use of
these measures in light of the COVID-19 pandemic.
75.
The seriousness of this analysis leads the Working Group to conclude that the
detention of Mr. Aguilar Oliver is arbitrary, in violation of articles 8, 9, 10 and 11 of the
Universal Declaration of Human Rights and articles 9, 14 and 16 of the Covenant, and falls
under category I. The Working Group decides to refer the present case to the Special
Rapporteur on the independence of judges and lawyers and to the Special Rapporteur on
torture and other cruel, inhuman or degrading treatment or punishment.
Category III
76.
The Working Group will next analyse whether the fundamental elements of a fair,
independent and impartial trial have been respected during the course of the judicial
proceedings. Since the proclamation of the Universal Declaration of Human Rights, the right
to a fair trial has been established as one of the fundamental pillars of international law to
protect human rights against abuse and arbitrary actions. To that end, everyone has the right
to be heard in a public trial at which they have all the guarantees necessary for their defence
21 A/HRC/7/2, para. 26; and A/HRC/16/48, para. 39.
22 Human Rights Committee general comment No. 35 (2014), para. 17. See also Opinions No. 5/2020
and No. 6/2020.
23 See Opinions No. 32/2019, No. 33/2019 and No. 45/2019.
24 A/HRC/30/37, para. 3.
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and where their right to be tried by a competent, independent and impartial court is
respected.25
77.
The Working Group recalls that in order to demonstrate that detention is indeed
lawful, any detained person has the right to challenge the lawfulness of their detention before
a court, as provided for in article 9 (4) of the Covenant and articles 6 and 8 of the Universal
Declaration of Human Rights. This is a self-standing human right essential to preserve
legality in a democratic society.26 Failure to uphold this right constitutes a violation of
principles 2, 4 and 10 of the Body of Principles for the Protection of All Persons under Any
Form of Detention or Imprisonment. Moreover, in accordance with the United Nations Basic
Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of
Their Liberty to Bring Proceedings Before a Court, the prohibition of all forms of arbitrary
deprivation of liberty constitutes a peremptory norm of international law.27
Due process
78.
The Working Group stresses that the right to due process and to a fair trial by a
competent, independent and impartial court or tribunal is protected by article 14 of the
Covenant, 28 which provides that everyone has the right to be heard by a competent,
independent and impartial tribunal, affording such guarantees as are appropriate to the right
of defence and the right to review the lawfulness of the deprivation of liberty, as a safeguard
of the rights protected by article 9 of the Covenant.29
79.
The Working Group insists that detainees have the right to be notified promptly of the
charges against them.30 The reasons for the arrest must include not only the general legal
basis but also factual specifics to indicate the substance of the complaint and the wrongful
act committed. Detained persons are entitled to be informed, at the time of their arrest, of
their right to assistance by a lawyer of their choosing.31 Likewise, the right to be tried without
delay is one of the fundamental aspects of the right to a fair trial.32
80.
In the instant case, the failure to provide Mr. Aguilar Oliver with information on the
nature of the crime he was alleged to have committed also constitutes a violation of article
14 (3) (a) of the Covenant, which guarantees a detainee the right to be promptly informed of
the nature and cause of the charges against them. 33 Additionally, Mr. Aguilar Oliver’s
disappearance prevented him from exercising the above-mentioned rights, and particularly
his right to an effective judicial remedy to challenge his detention and request protection from
a possible violation of his right to personal liberty.34
81.
These arguments have been ignored by the judiciary, which has kept Mr. Aguilar
Oliver imprisoned in pretrial detention with excessive delays in the proceedings that have not
been justified, and this despite the fact that the Constitution, in articles 17 and 20 (A) (VIII)
(prior to the reform of 18 June 2018), provides for the right to have justice expeditiously
administered by courts, within the time limits set by the laws, and the right of the accused to
be tried within four months in the case of crimes whose maximum penalty does not exceed
25 Universal Declaration of Human Rights, arts. 9–11;
26 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.
27 A/HRC/30/37, para. 11.
28 Human Rights Committee general comment No. 32 (2007).
29 A/HRC/30/37, 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. 9
(principle 6).
30 See article 9 (2) of the Covenant.
31 A/HRC/30/37, 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), principle 9.
32 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); and Freemantle v. Jamaica
(CCPR/C/68/D/625/1995), para. 7.4 (four days is excessive).
33 Human Rights Committee general comment No. 32 (2007), para. 31.
34 See article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant.
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two years’ imprisonment and within one year if the penalty is longer, unless the accused
seeks an extension for the purposes of defence.
82.
Furthermore, the Working Group has already established that the source presented a
credible case that Mr. Aguilar Oliver was tortured into incriminating himself. The admission
into evidence of a statement allegedly obtained through torture or ill-treatment places the
entire proceeding within the category of unfair and arbitrary trial.35 The torture inflicted on
Mr. Aguilar Oliver impaired his ability to participate in his own defence under the same
conditions as the prosecuting party, which violated his right to equality of arms, recognized
in article 14 (1) of the Covenant.36
83.
The Government claims that the accusation against the detainee was based on the
statement of a witness. However, in view of the allegations made by the source, the burden
of proof that these testimonies were given freely and voluntarily falls on the Government.37
The Working Group wishes to emphasize that inflicting pressure, coercion, harm or suffering
on a person in order to obtain a confession from them violates articles 2, 13, 15 and 16 of the
Convention against Torture.38
84.
The Working Group reiterates that the Government was required to refute such
allegations and should have ensured that an effective investigation was carried out into this
allegation so that the torturer would be prosecuted for his conduct. Such action helps to
eliminate impunity in general and is of great importance in ensuring accountability to the
victim and to society. None of this has been done.
85.
The Working Group notes that Mr. Aguilar Oliver has been held in pretrial detention
for more than 3,000 days. It recalls 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 light of the circumstances and re-evaluated as long as it continues.39 It must not be punitive
in nature and must be based on an individual evaluation of each case. Article 9 (3) of the
Covenant requires a reasoned judicial decision that examines the merits of pretrial detention
in each case, which, according to the information received, has not occurred in the case of
Mr. Aguilar Oliver, who has been obstructed or delayed at every stage of the procedure.
86.
The Working Group reiterates that the promptness of a trial is integral to its
impartiality in general and to due process in particular, as the longer a trial takes, the longer
the defendant remains in a situation of legal jeopardy, in addition to increasing the chances
of witnesses forgetting details or evidence disappearing. Mr. Aguilar Oliver has been the
victim of a violation of the right to due process, as the proceedings have dragged on since his
arrest in 2013.
87.
The Working Group is convinced that Mr. Aguilar Oliver’s case reveals a violation of
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; and rules 24, 25, 26, 27, 29, 30, 31, 32, 33, 34, 35 and 119 of the Nelson
Mandela Rules, in addition to the United Nations Standard Minimum Rules for Non-custodial
Measures (Tokyo Rules).
88.
The Working Group is persuaded that the Mexican authorities have committed serious
breaches of international norms relating to the right to a fair, independent and impartial trial,
in violation of articles 9 to 11 of the Universal Declaration of Human Rights. The information
provided by the source, which has not been refuted by the Government inasmuch as it has
not replied to the Working Group’s request, has revealed a serious impact on Mr. Aguilar
Oliver’s ability to benefit from international human rights standards of fair trial, as provided
for in article 14 of the Covenant. The above-mentioned violations are of such gravity that
35 Opinions No. 43/2012, para. 51; No. 34/2015, para. 28; No. 52/2018, para. 79 (i); and No. 32/2019,
para. 43.
36 See, for example, Opinions No. 46/2017, para. 25; No. 53/2018, para. 77; and No. 24/2020, para. 108.
37 Human Rights Committee general comment No. 32 (2007), para. 41.
38 CAT/C/BHR/CO/2-3, para. 16.
39 Human Rights Committee general comment No. 35 (2014), para. 18.
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they lead the Working Group to classify Mr. Aguilar Oliver’s detention as arbitrary under
category III.
Concluding remarks
89.
The Working Group expresses its concern about the pretrial deprivation of liberty of
Mr. Aguilar Oliver, ordered ex officio and excessively prolonged, while reiterating its view
that mandatory pretrial detention violates the Government’s obligations under international
human rights law.
90.
This is one of many cases of arbitrary deprivation of liberty of persons in Mexico that
have been submitted to the Working Group in recent years. It is concerned that the situation
indicates the existence of a systemic problem with respect to arbitrary detention which, if it
continues, could constitute a serious violation of international law. The Working Group
recalls that, under certain circumstances, widespread or systematic imprisonment or other
severe deprivation of liberty in violation of fundamental rules of international law may
constitute crimes against humanity.40
91.
The Working Group, noting that the list of offences carrying mandatory pretrial
detention was extended in 2019, urges the Government to repeal the provisions of the
Mexican Constitution and law that provide for mandatory pretrial detention, or to amend
them in accordance with the State’s obligations under the Covenant and international law.
92.
The Working Group would welcome the opportunity to work constructively with the
Government to address its concerns relating to arbitrary detention. Given that a significant
period of time has passed since its last visit to Mexico in November 2002, the Working Group
believes that it is an opportune moment to continue its dialogue with the Government and
institutions through another visit to the country. The Working Group notes that the
Government maintains a standing invitation to all Human Rights Council special procedures
mandate holders. As a current member of the Council, it would also be appropriate for the
Government to confirm its standing invitation. Since 2015, the Working Group has made
several requests to visit Mexico and has received assurances from the Government that its
requests are being considered. The Working Group urges the Government to consider its
requests and awaits a positive response.
Decision
93.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Victor Hugo Aguilar Oliver is arbitrary, 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, and falls into categories I and III.
94.
The Working Group requests the Government of Mexico to take the necessary steps
to remedy the situation of Mr. Aguilar Oliver without delay and to bring it into conformity
with the relevant international standards, including those set forth in the Universal
Declaration of Human Rights and the International Covenant on Civil and Political Rights.
95.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. Aguilar Oliver immediately and to grant
him the effective right to obtain compensation and other types of reparation, in accordance
with international law. In particular, account is taken of the interpretative declaration on
article 9 (5) made by Mexico when acceding to the Covenant, which states:
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.
40 Opinion No. 47/2012, para. 22.
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96.
In addition, in the current context of the COVID-19 pandemic and given the threat
that it poses in places of detention, the Working Group calls upon the Government to take
urgent action to ensure the immediate release of Mr. Aguilar Oliver.
97.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr.
Aguilar Oliver and to take appropriate measures against those responsible for the violation
of his rights.
98.
In accordance with paragraph 33 (a) of its methods of work, the Working Group refers
the present case to the Working Group on Enforced or Involuntary Disappearances, 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.
99.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
Follow-up procedure
100.
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. Aguilar Oliver has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. Aguilar
Oliver;
(c)
Whether an investigation has been conducted into the violation of Mr. Aguilar
Oliver’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.
101.
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.
102.
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.
103.
The Working Group notes that the Human Rights Council has encouraged all States
to cooperate with the Working Group and 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.41
[Adopted on 15 November 2022]
41 Human Rights Council Resolution 51/8, paras. 6 and 9.