A/HRC/WGAD/2022/80

GE.23-05742 (E) 071223 071223

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. 80/2022 concerning Armando García Noguez (Mexico)

1.

The Working Group on Arbitrary Detention was established by the Commission on

Human Rights in its resolution 1991/42. 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 8 July 2022 the Working Group

transmitted to the Government of Mexico a communication concerning Armando García

Noguez. The Government replied to the communication on 1 September 2022. The State is

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

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General Assembly

Distr.: General

4 April 2023

English

Original: Spanish

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Submissions

Communication from the source

4.

Armando García Noguez is a 51-year-old Mexican national. He is incarcerated in the

Santiaguito Prison and Social Rehabilitation Centre in Almoloya de Juárez (State of Mexico).

He was deprived of his liberty in June 2000 and is serving a prison sentence of 34 years and

8 months for kidnapping.

5.

According to the information received, Mr. García Noguez was violently detained on

15 June 2000, at approximately 5 p.m., by persons who did not identify themselves. He was

not informed of the reason for the arrest or of his rights. He was put in a car and taken to an

unknown location, where he was allegedly tortured. It is reported that the torture stopped

only when he falsely confessed to having participated in a kidnapping. Later, in the early

hours of the morning, he was taken to the Texcoco District Attorney’s Office. He was

presented before the public prosecutor approximately 20 hours after his arrest, during the

afternoon of 16 June. At that time, he reserved his right to give evidence, in the face of death

threats from the criminal investigation police against him and his family. The source alleges

that he was tortured at the District Attorney’s Office before and after being presented to the

public prosecutor. After 72 hours, he was transferred to Ecatepec prison.

6.

It is alleged that Mr. García Noguez reported the acts of torture in his preliminary

statement, but neither the judge nor the prosecution service took any action in this regard.

Mr. García Noguez’s then lawyer told him that it was a waste of time to report acts of torture

in Mexico, because human rights had no value and torture was normal police practice. As a

result, Mr. García Noguez was sentenced in a process that was flawed from the beginning.

7.

It is reported that, notwithstanding the above, Mr. García Noguez’s custody report

indicates that the authorities alleged different reasons for his detention. According to this

document, Mr. García Noguez was arrested in Ecatepec, along with other persons, on the

morning of 16 June 2000 during a routine operation for “acting suspiciously”, and a small

amount of drugs, a gun and a knife were allegedly found in the vehicle. The report also states

that the detainees freely confessed that they were involved in kidnapping and that they had

committed that offence 14 days earlier, on 2 June. Mr. García Noguez was allegedly taken to

the Texcoco District Attorney’s Office, where he was presented to the public prosecutor and,

on 20 June 2000, he was placed in Ecatepec prison.

8.

The source states that Mr. García Noguez was arrested separately and at a different

place and time from the other individuals, who were later his co-defendants. It indicates that

the alleged discovery of incriminating material is spurious since it was “planted”. It claims

that Mr. García Noguez was tortured, first to get him to hand over money and then to confess

to participating in a kidnapping. It was not a case of flagrante delicto and there was no warrant

for the arrest, for which the source therefore alleges that there was no legal basis, since in

reality the police were searching for someone to blame for an offence that had been

committed.

9.

In contrast, the source highlights the content of the preliminary statement made by

Mr. García Noguez in 2000 in criminal case No. 119/2000, now No. 27/2015, and filed before

the then Third Criminal Court of First Instance, now the Criminal Court of First Instance, of

the Judicial District of Ecatepec. In this statement, the detainee asserted the following:

... on 15 June of this year at 5 p.m. when I was on my way to school, I was arrested

by 20 members of the criminal investigation police in a violent manner. They put me

in a car, threw me to the ground and then beat me all over my body. I gave my name

and my occupation and requested the advice of a lawyer, to which they responded

with more beatings. They took me to a place called “the site” (terreno) where they

began to torture me by tying my arms behind me, blindfolding me and lying me down

on the back seat where two people climbed onto my chest, stomach and testicles to

pour more water on me. They went on to question me about events I know nothing

about, hitting me with a stick and saying that, since nobody had seen when they had

picked me up, they could keep me for as long as they wanted. After being tortured, I

confessed to having participated in the robbery, which they claimed was a kidnapping,

and when I denied that they continued torturing me. At 1 a.m. they took me to the

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District Attorney’s Office in Texcoco, introduced me to the people involved and told

me that they were my accomplices. When I denied this, I was tortured again and when

I could no longer stand the torture and the threats to bring in my relative and rape her

in front of me, I admitted to having participated in the kidnapping, but I repeated that

I did not know any of them and I reserved the right to give evidence at the Office

because of the death threats made against me.

10.

Additionally, reference is made to Mr. García Noguez’s extended preliminary

statement, provided in 2019, since it allegedly includes reports of arbitrary and illegal

detention and claims of torture. The statement provides additional details about the situation

and the treatment that Mr. García Noguez received at the hands of the authorities immediately

after his arrest, including the torture he allegedly suffered in the course of the interrogations,

during which he had no legal assistance, to force him to admit guilt and accept the charges

they were trying to bring against him and of which he was eventually convicted.

11.

The source argues that Mr. García Noguez’s detention was illegal, since the police

arrested him at approximately 5 p.m. on 15 June 2000 but did not bring him before the public

prosecutor until the afternoon of 16 June, without reasonable grounds for not doing so

immediately. He was held incommunicado for approximately 20 hours, unable to make calls

and without knowledge of the accusations against him. The arrest did not occur during the

commission of an offence. In addition, he was not informed of the reasons for his arrest, nor

was he promptly informed of the charges against him. It is claimed that there was excessive

use of force and that acts of torture were committed by State agents.

12.

It is alleged that, according to the Constitution, the detention of persons is lawful if

the following requirements are met: (a) the detention must be justified by the reasons and

under the conditions already set out in the Constitution and in law; (b) the detention must not

be arbitrary; (c) the authorities must inform detainees, at the time of their arrest, of the reasons

for the arrest and promptly notify them of the charges against them; (d) detainees must be

brought before the competent authority to verify the lawfulness of their detention; and (e) as

a guarantee of redress, the release of detainees must be ordered if their arrest was unlawful

or arbitrary. In the present case, none of these requirements were met.

13.

In addition, during arrests, the accused must be afforded the following guarantees:

(a) the use of force must be limited to that which is strictly necessary; (b) the officers

empowered to carry out the arrest must be identified; (c) the reasons for the arrest must be

stated, which includes not only the general legal basis for the arrest, but also sufficient factual

elements to support the complaint; (d) it must be clearly established which agents are

responsible for detainees’ deprivation of liberty; (e) detainees’ personal integrity and any

injuries sustained must be reviewed; and (f) a report must be drafted immediately containing

complete information on the detainee being handed over to the authorities. The source

indicates that in the present case all of these guarantees were disregarded.

14.

It is alleged that it is not legal for the police to deprive Mr. García Noguez of his

liberty in order to subsequently conduct an investigation. He was arrested for no reason

whatsoever, which constituted an illegal action that led to his sentencing for a false offence.

15.

It is alleged that Mr. García Noguez’s right to be immediately handed over to the

public prosecutor was violated, since after the arrest, and without any supervision of the

detainee, the police officers conducted an investigation, carried out acts of torture,

manipulated the facts and contrived a kidnapping using fabricated and illegal evidence and

accounts. It is alleged that there was an undue delay in handing the detainee over, when there

were no reasonable grounds not to do so immediately. The police may not detain persons for

longer than is strictly necessary to bring them before the public prosecutor, hence they may

not detain a person for the purpose of obtaining a confession or information related to an

investigation. This constitutional requirement is a guarantee for individuals to guard against

unlawful police action intended to coerce the detainee.

16.

The source alleges that as a consequence of the violation of this right, the suspect’s

confession and all of the evidence that directly arose from the unjustified delay are invalid

and cannot be used in the trial or evaluated by the judge.

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17.

The violation of the accused’s right to be informed of his rights and of the reasons for

his arrest affected the protections to which he was entitled, leaving him in a state of

defencelessness and undermining his right to an adequate defence from the moment of his

arrest.

18.

According to the source, under the Constitution, the authorities carrying out an arrest

are obliged to immediately inform the arrested persons of the allegations against them and of

their rights. Protecting this right is important because it prevents illegal and arbitrary

detentions and guarantees the right to a defence.

19.

The Supreme Court has reportedly stated that every person not only has the legitimate

expectation but also the right not to be inconvenienced by authorities except on justified

grounds, with the purpose of avoiding abuses by the authorities. For this reason, it is

understood that limitations to this right are of a highly exceptional nature and should be

interpreted narrowly. It is therefore up to the authority to prove that it had objective and

reasonable evidence to legitimately justify the infringement on personal freedom and

security.

20.

The source alleges that the detention of Mr. García Noguez was arbitrary and illegal,

inasmuch as he was not arrested in flagrante delicto or with an arrest warrant but was detained

without objective or justifiable cause and then subjected to an investigation and acts of torture

that proved the alleged “kidnapping” that had reportedly occurred days earlier and which

forms the basis of the criminal charge.

21.

The Supreme Court has reportedly established the principle that no authority may

detain a person without minimum justifying grounds, since to consider otherwise would mean

that any circumstance, such as physical appearance or the way in which people dress, speak

or behave, could justify their detention. It is not enough for the authority to allege that the

accused adopted a “suspicious” or “evasive” attitude in order to detain him without providing

other justification.

22.

The police authorities must explain in detail in each specific case the circumstances

of manner, time and place that reasonably led them to consider that the person was acting in

a suspicious manner and the considerations that led them to assume that the individual was

probably committing an offence or was about to do so.

23.

The mere suspicion that someone could be committing an offence, is about to commit

an offence or is simply presumed to be involved in the commission of an offence under

investigation does not make an arrest lawful. Detaining someone for investigation is not

lawful.

24.

The source alleges that the Government has violated article 7 of the American

Convention on Human Rights, in terms of the general protection that this standard offers by

providing for the right to personal liberty, as well as guarantees against arbitrary detention,

which include informing detainees of the reasons for their detention and the charges brought

against them, judicial oversight of the deprivation of liberty and the reasonableness of the

term of pretrial detention, as well as the right to challenge the legality of the detention.

25.

Article 7 (2) of the American Convention on Human Rights refers to the reasons and

conditions established in political constitutions, or the laws established pursuant thereto, to

determine the legality of deprivation of liberty. Therefore, the Inter-American Court of

Human Rights has indicated that if domestic law, both material and formal, is not observed

when depriving persons of their liberty, that deprivation of liberty will be illegal and contrary

to the Convention.2

26.

Article 7 of the Convention also establishes, inter alia, the guarantee that any persons

deprived of their liberty may challenge the legality of their detention before a competent

judge or court, so that the court may decide without delay on the lawfulness of the deprivation

of liberty and, if necessary, order their release. Such guarantees should not only exist formally

2 Galindo Cárdenas et al. v. Peru, Judgment of 2 October 2015, para. 181 and note 172.

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in the legislation, but they must also be effective, that is, they must fulfil the objective of

obtaining without delay a decision on the legality of the arrest or detention.3

27.

Thus, article 7 (2) of the Convention automatically refers to domestic law as the basis

for detention. Accordingly, any requirement established in domestic law that is not complied

with when depriving a person of his or her liberty will cause this deprivation to be unlawful

and contrary to the Convention.4

28.

The source recalls that no one may be subjected to arrest or imprisonment for reasons

and by methods which, although classified as legal, could be deemed to be incompatible with

the respect for the fundamental rights of the individual because, among other things, they are

unreasonable, unforeseeable or lacking in proportionality.5

29.

To comply with the basic requirements to restrict the right to personal liberty, the State

must justify and prove, in the specific case, the existence of sufficient indications that would

allow for reasonable suspicion of the criminal conduct of the individual and that the detention

is strictly necessary; consequently, this cannot be based on mere suspicion or personal

perceptions.6

30.

The prohibition of arbitrary deprivation of liberty is a non-derogable right which

cannot be suspended and is applicable even in cases in which detention is carried out to ensure

public safety.7

31.

Article 7 (4) of the Convention establishes that any persons who are detained shall be

informed of the reasons for their detention and shall be promptly notified of the charge or

charges against them. This article is a mechanism to avoid illegal or arbitrary detentions from

the very moment when persons are deprived of their liberty and ensures the right to defence

of the detainee.8

32.

When detainees are deprived of their liberty, and before making their first statement

before the authorities, they must be notified of their right to establish contact with another

person, either a family member or a lawyer, to inform them that they have been taken into

the custody of the State.9

33.

The obligation to inform people of the motives and reasons for their arrest and of their

rights must be complied with when the arrest takes place, does not allow for exceptions and

must be observed independently of the way in which the arrest occurs.10 In addition, the right

to be informed of the reasons for the detention enables the detainee to challenge the legality

of the detention, making use of the legal mechanisms that every State must offer in

accordance with article 7 (6) of the Convention.

34.

Communicating the motives and reasons for the arrest necessarily implies first

communicating the arrest itself. Arrested persons must clearly understand that they are being

arrested. Secondly, the arresting officer must communicate, in simple language and without

technical terms, the essential facts and legal grounds on which the arrest is based. Merely

mentioning the legal basis does not satisfy the provisions of article 7 (4) of the Convention.

3 Inter-American Court of Human Rights, Ruano Torres et al. v. El Salvador, Judgment of 5 October

2015, para. 140 and note 204.

4 Inter-American Court of Human Rights, Chaparro Álvarez and Lapo Íñiguez v. Ecuador, Judgment of

21 November 2007, para. 57.

5 Inter-American Court of Human Rights, Gangaram Panday v. Suriname, Judgment of 21 January

1994, para. 47.

6 Inter-American Court of Human Rights, Pacheco Teruel et al. v. Honduras, Judgment of 27 April

2012, para. 106 and note 112.

7 Inter-American Court of Human Rights, Rodríguez Vera et al. (the disappeared from the Palace of

Justice) v. Colombia, Judgment of 14 November 2014, para. 402 and footnote 609.

8 Inter-American Court of Human Rights, Juan Humberto Sánchez v. Honduras, judgment of 7 June

2003, para. 82.

9 Inter-American Court of Human Rights, Tibi v. Ecuador, Judgment of 7 September 2004, para. 112

and note 133.

10 Inter-American Court of Human Rights, López Álvarez v. Honduras, Judgment of 1 February 2006,

para. 84.

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The source alleges that Mr. García Noguez was not informed of the motives and reasons for

his arrest.

35.

Article 7 (4) of the Convention does not specify that the detainee must receive written

information about the arrest. This obligation can be fulfilled by providing the information

verbally. However, the second obligation contained in article 7 (4) of the Convention,

concerning prompt notification of the charges against the detainee, must be fulfilled in

writing.11 If persons do not receive adequate information on the reasons for their detention,

they do not know what charges they must defend themselves against, and consequently,

judicial oversight becomes meaningless.12 If the State did not inform the person of the causes

or reasons for their detention, the detention will be unlawful and therefore contrary to the

Convention.13

36.

The source claims that there has been a violation of article 8 (2) (b) of the Convention,

which requires the competent judicial authorities to notify accused persons prior to the trial

of the charges against them and the reasons for those charges, and of the offences or

infractions for which they are suspected to be responsible. In order for this right to be fully

effective and satisfy its inherent purposes, defendants must receive this information before

they make their first statement. Moreover, particular consideration should be given to the

application of this guarantee when adopting measures that restrict the right to personal

liberty.14

37.

It is alleged that it was during an interrogation under torture and in the context of the

police investigation that Mr. García Noguez learned of the reasons for his detention.

Therefore, the State failed to comply with the conventional obligation to communicate, orally

or in writing, the reasons for the detention. Mr. García Noguez was not notified that he was

being held for kidnapping until approximately 20 hours after his arrest. He was not informed

of the reasons for his detention, nor of the charges against him, which amounts to a violation

of article 7 (4) of the Convention.

38.

The case law of the European Court of Human Rights states that article 5 (3) of the

Convention for the Protection of Human Rights and Fundamental Freedoms (European

Convention on Human Rights), which provides that any person arrested must be brought

promptly before a judge, implies that any persons who have been deprived of their liberty

without any judicial oversight must be released or brought before a judge immediately, since

the essential purpose of that article is the protection of the liberty of the individual against

interference by the State. No situation, however grave, gives the authorities the power to

prolong incarceration unduly without violating article 5 (3) of the European Convention on

Human Rights.15

39.

Immediate judicial oversight is a measure aimed at avoiding arbitrary or illegal

detentions, taking into account that in a State governed by the rule of law it is the

responsibility of the judge to guarantee the rights of the detainee, to authorize the adoption

of precautionary or restrictive measures when strictly necessary and to ensure, in general,

that the accused is treated in a manner consistent with the presumption of innocence. The

mere knowledge by a judge that persons are detained does not imply compliance with this

guarantee, as detainees must appear personally and make their statements before the judge or

11 Inter-American Court of Human Rights, Cabrera García and Montiel Flores v. Mexico, Judgment of

26 November 2010; and Fleury et al. v. Haiti, Judgment of 23 November 2011.

12 Inter-American Court of Human Rights, Yvon Neptune v. Haiti, Judgment of 6 May 2008, para. 109.

13 Inter-American Court of Human Rights, J. v. Peru, Judgment of 27 November 2013, para. 149 and

note 255.

14 Inter-American Court of Human Rights, Palamara Iribarne v. Chile, Judgment of 22 November

2005, para. 225.

15 Inter-American Court of Human Rights, Castillo Petruzzi et al. v. Peru, Judgment of 30 May 1999,

para. 108 and note 85.

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a competent authority.16 Immediate judicial review of detention is particularly relevant when

applied to arrests made without a warrant.17

40.

The source emphasizes that the kidnapping of a person is a case of arbitrary

deprivation of liberty that also violates the right of detainees to be brought promptly before

a judge and to have adequate remedies to verify the lawfulness of their arrest, in violation of

article 7 of the American Convention on Human Rights. In the case of Mr. García Noguez, it

is alleged that he was the victim of arbitrary detention that deprived him of his physical liberty

without legal grounds and without being brought before a judge or the competent public

prosecutor. All of this violates the right to personal liberty under article 7 of the Convention.

41.

In connection with the allegations of a violation of the substantive standards of the

Convention, the source claims that articles 7, 9, 10 and 11 of the Universal Declaration of

Human Rights and articles 9 and 14 of the Covenant have also been violated in the present

case. Finally, it is claimed that Mexico has violated principles 1, 2, 6, 10, 11, 21 and 35 of

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

Imprisonment.

Response from the Government

42.

With a view to issuing an opinion in the present case, the Working Group transmitted

the source’s allegations to the Government on 8 July 2022, requesting detailed information

on the case of Mr. García Noguez to clarify the legal and factual basis for his detention, as

well as its compatibility with the international human rights obligations of Mexico.

43.

The Working Group further requested the Government of Mexico to safeguard

Mr. García Noguez’s physical and mental health. In the context of the coronavirus disease

(COVID-19) pandemic, and in accordance with the World Health Organization

recommendations of 15 March 2020 concerning the response to 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.

44.

The Government informed the Working Group that on 16 June 2000, at approximately

6 a.m., investigative police officers from the Prosecutor General’s Office of the State of

Mexico were carrying out an operation called “Presence and Prevention” in the Jardines de

Santa Clara neighbourhood of Ecatepec, when they noticed two vehicles driving along

Boulevard de los Aztecas.

45.

The Government claims that the drivers accelerated when they noticed the police

presence, so the police officers approached them and stopped them. After the officers

identified themselves as belonging to the then Attorney General’s Office of the State of

Mexico, four individuals, including Mr. García Noguez, exited the vehicles.

46.

The Government states that when the officers approached the vehicle, the individuals

tried to run away, so they chased them. When they caught them, their clothing was searched

for security reasons, and drugs and weapons were found. Specifically, Mr. García Noguez

was reportedly found to have a knife with a single-edged blade. When questioned about the

origin of these items, the individuals became nervous and began to contradict themselves,

first indicating that they were involved in robbing bank account holders and even confessing

to the offence of kidnapping.

47.

In the light of these confessions, the detainees were immediately handed over to the

public prosecutor, and the investigation was opened at 10 a.m. on 16 June 2000 by the

investigative agency of the justice centre at the Assistant District Attorney’s Office in

Texcoco de Mora. With this information, the Government indicates that it is possible to

affirm that Mr. García Noguez was arrested in flagrante delicto by criminal investigation

officers and immediately handed over to the investigating authority.

16 Inter-American Court of Human Rights, García Asto and Ramírez Rojas v. Peru, Judgment of 25

November 2005, para. 109 and notes 146 and 147.

17 Inter-American Court of Human Rights, Espinoza González v. Peru, judgment of 20 November 2014,

para. 129 and note 207.

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48.

Mr. García Noguez’s defence filed an appeal against this decision before the then

Tlalnepantla Collegiate Criminal Court No. 2 at the High Court of Justice of the State of

Mexico (now Tlalnepantla Criminal Court of Appeal No. 2). The Court, in a decision dated

5 October 2004, instructed that the proceedings be restarted from the preliminary statement.

Mr. García Noguez was subsequently convicted and given a prison sentence of 36 years,

8 months and 7 days as he was found guilty of the offences of kidnapping, organized crime

and possession of a prohibited weapon.

49.

The defendant appealed and was convicted again on the same charges. The prison

sentence was adjusted to 34 years, 8 months and 7 days.

50.

The Government denies that due process was violated, since Mr. García Noguez

challenged the evaluation and admission of evidence by the local judicial authorities on the

grounds that it was considered to be contradictory, false or altered. That challenge was

rejected by the courts, which concluded that the evidence complied with the applicable rules

in the matter and so continued to consider it, although the statements of the police officers

who apprehended Mr. García Noguez were declared unlawful.

51.

The Government also states that the application for review of the case filed by the

defence was rejected as inappropriate, because it would have increased rather than reduced

the sentence imposed on him. The general legislation at that time provided for a penalty of

between 40 and 80 years of imprisonment, while the Criminal Code for the State of Mexico,

on the basis of which the prison sentence was set, provided for between 30 and 50 years of

imprisonment.

52.

The Government denies the violation of Mr. García Noguez’s human rights, as well

as any accusations of torture made by him, citing two medical reports certifying his good

physical condition, the first issued by staff of the Prosecutor General’s Office and the second

by judicial staff.

53.

The Government provides a long explanation of what torture means in Mexico,

concluding with the opinion of the Federal Public Defender Service that the accusation lacked

legal standing, since it was a matter of local jurisdiction and it was up to the relevant local

authorities to mount a defence against those accusations, if necessary.

54.

The Government’s response refers to the criteria set out in the Working Group’s

jurisprudence regarding the alleged situation, setting forth a series of conclusions according

to which all actions by State officials were in strict compliance with the law. The Government

makes an analysis of the different categories identified by the Working Group in an attempt

to demonstrate that the detention of Mr. García Noguez was not arbitrary under the provisions

of international law.

Deliberations

55.

The Working Group thanks the source and the Government for their submissions. The

Working Group has in its jurisprudence established the ways in which it deals with

evidentiary issues. If the source has established a prima facie case for breach of international

law constituting arbitrary detention, the burden of proof should be understood to rest upon

the Government if it wishes to refute the allegations.18

56.

The Working Group notes that the source has relied in its claim on the provisions of

the American Convention on Human Rights, the Universal Declaration of Human Rights and

the Covenant.

57.

The Working Group reaffirms that States have an obligation to respect, protect and

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

national law allowing deprivation of liberty should be made and implemented in conformity

with the relevant international standards. Consequently, even if the detention is in conformity

with national legislation, regulations and practices, the Working Group has a mandate to

assess the judicial proceedings and the law itself to determine whether the detention is also

consistent with the relevant provisions of international human rights law.

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

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Category I

58.

The Working Group received information from the source indicating that Mr. García

Noguez had been arrested by unidentified persons at approximately 5 p.m. on 15 June 2000.

He was not informed of the reason for his arrest or of his rights. He was placed in a car while

being violently beaten and was taken to a place or “site” (terreno) where he was allegedly

tortured. Later, in the early hours of the morning, he was taken to the Texcoco District

Attorney’s Office. He is currently serving a prison sentence of 34 years and 8 months in the

Santiaguito Prison and Social Rehabilitation Centre in Almoloya de Juárez. The source

affirms that he was not found in flagrante delicto and that there was no warrant for the arrest,

and therefore alleges that there was no legal basis to arrest him since in reality the police

were searching for someone to blame for an offence that had been committed.

59.

The Government has denied this claim, offering a different version of Mr. García

Noguez’s arrest and describing it as an arrest in flagrante delicto. It indicates that during a

surveillance operation some people travelling in a car were observed acting in a way that

appeared suspicious, because when they saw that they were being followed by the police they

sped up and then abandoned their vehicle. After their arrest, they were searched, and drugs

and weapons were found. Mr. García Noguez was found to have a knife. When questioned

about these items, the individuals became nervous, contradicted themselves, indicated that

they were involved in robbing bank account holders and even confessed to committing the

offence of kidnapping. As a result, they were immediately handed over to the public

prosecutor and, at 10 a.m. on 16 June 2000, a preliminary investigation was opened at the

investigative agency of the justice centre at the Assistant District Attorney’s Office in

Texcoco de Mora.

60.

The Working Group has not been persuaded by the Government’s explanations, in

part because it has not provided any evidence to support its assertions. Likewise, it is not

possible to consider that Mr. García Noguez was arrested in flagrante delicto, since the

Government itself indicates that he and his companions, when questioned after being

pursued, declared themselves to be the perpetrators of a kidnapping that was not occurring at

that particular time.

Absence of flagrante delicto

61.

The Working Group notes with concern that Mr. García Noguez was arrested without

a warrant from a competent authority, without knowledge of the reason for his arrest and in

the absence of the supposed situation of flagrante delicto. He was not arrested by the officers

in flagrante delicto. The arrest was also not carried out during the pursuit following the

commission of an offence. The Government has stated that the arrest was part of an operation

in which police officers allegedly found a passing car to be “suspicious” and began following

it.

62.

The Working Group recalls that it is clear from the Mexican Constitution that, in

matters of personal liberty, the State may not limit the enjoyment of this right except in the

circumstances expressly established therein.19 One of the established circumstances is that of

flagrante delicto, which refers to criminal conduct that is evident and entirely unmistakable,

and ongoing flagrant criminal conduct is therefore a condition that must be met before the

arrest. This implies that the authorities do not have the power to arrest persons on the mere

suspicion that they may be committing an offence or that they are about to do so, or because

it is presumed that they are involved in the commission of an offence, nor to detain them with

the sole intention of investigating them.

63.

The Working Group emphasizes that article 9 of the Universal Declaration of Human

Rights provides that no one shall be subjected to arbitrary arrest, detention or exile.

Deprivation of liberty is not only a matter of legal definition but also of fact, and it must be

justified as reasonable, necessary and proportionate in the circumstances. Substantive

grounds for arrest or detention must be prescribed by law and should be defined with

sufficient precision to avoid overly discretionary interpretation or application.20 Deprivation

19 Supreme Court, First Chamber, amparo appeal No. 1596/2014.

20 Human Rights Committee, general comment No. 35 (2014), para. 22.

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of liberty without such legal authorization is unlawful.21 It is obvious to the Working Group

that none of these elements applied to the decision to deprive Mr. García Noguez of his

liberty.

Information at the time of arrest and presentation before a judicial authority

64.

The Working Group considers it important to reiterate that anyone who is arrested

must be informed, at the time of their arrest, both of the reasons for the arrest and of the

judicial avenues available for challenging its legality. The reasons for the arrest must include

the legal basis for detention, the evidence on which the allegation is based and the wrongful

act committed. The reasons concern the official basis for the arrest, not the subjective

motivations of the arresting officer.22 In the view of the Working Group, the Covenant

requires that persons who are detained are informed by the arresting authority, upon

apprehension, of their right to a lawyer of their choice.23 In addition, detainees have the right

to be notified promptly of the charges against them. None of these prerequisites were met

either before or during the proceedings against Mr. García Noguez.

65.

In this regard, the Working Group notes that, according to the source, the custody

report for Mr. García Noguez indicates that the authorities invoked different reasons for his

arrest. According to this document, Mr. García Noguez was arrested along with other persons

on the morning of 16 June 2000 during a routine operation, and a small amount of drugs, a

gun and a knife were allegedly found in the vehicle. The document also states that the

detainees freely confessed that they were involved in kidnapping and that they had committed

that offence several days earlier, on 2 June 2000. Mr. García Noguez was allegedly taken to

the Texcoco District Attorney’s Office, where he was presented to the public prosecutor and,

on 20 June 2000, he was placed in Ecatepec prison.

66.

The source states that Mr. García Noguez was arrested separately and at a different

place and time from the other individuals. In addition, it is indicated that the alleged discovery

of incriminating material is spurious, since it was “planted” after torturing Mr. García Noguez

to get him to hand over money and then to get him to confess to participating in a kidnapping.

67.

The Working Group notes that Mr. García Noguez was initially brought before the

public prosecutor and not a competent judge, despite the fact that the Working Group has

noted in its jurisprudence that a public prosecutor cannot be considered as an officer

exercising judicial power under article 9 (3) of the Covenant.24 Any form of detention or

imprisonment should be ordered by a judicial or other authority in keeping with the law or

be subjected to the effective control of the judicial authority, the status and mandate of which

should afford the strongest possible guarantees of competence, impartiality and independence

in accordance with principle 4 of the Body of Principles for the Protection of All Persons

under Any Form of Detention or Imprisonment.25 These provisions were not complied with

in the case of Mr. García Noguez.

68.

The Working Group also reiterates 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.26 In this sense, liberty is recognized in article 9 (3) of

21 McLawrence v. Jamaica (CCPR/C/60/D/702/1996), para. 5.5.

22 United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone

Deprived of Their Liberty to Bring Proceedings Before a Court (A/HRC/30/37, annex), principle 7.

23 Ibid., principle 9.

24 Human Rights Committee, general comment No. 35 (2014), para. 32. See also Opinions No. 14/2015,

para. 28; No. 5/2020, para. 72; No. 6/2020, para. 47; and No. 41/2020, para. 60. See also

A/HRC/45/16/Add.1, para. 35.

25 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).

26 Opinions 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; Communication No. 18/2018, which is available in Spanish only at the

following address:

https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=24225;

CAT/C/MEX/CO/7, paras. 32 and 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.

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the Covenant as the prime consideration, with pretrial detention being 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 offence.

Disappearance, incommunicado detention and torture

69.

The Working Group expresses its concern at the source’s allegations that, following

his arrest in June 2000, Mr. García Noguez was disappeared and held incommunicado for

20 hours, during which time he was severely tortured so that he would incriminate himself.

Following those 20 hours, he was allegedly presented to the public prosecutor without the

torturers having achieved their goal of making him confess. The source alleges that he was

tortured at the District Attorney’s Office before and after being presented to the public

prosecutor. 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.27

70.

The Government, in its response, indicates that in 2019 some investigations were

conducted in relation to allegations of torture and evidence being obtained by unlawful

means. In November 2021, a request was made for the appointment of experts specialized in

the preparation of medical and psychological opinions for cases of possible torture, based on

the Manual on the Effective Investigation and Documentation of Torture and Other Cruel,

Inhuman or Degrading Treatment or Punishment (Istanbul Protocol). The Government also

indicated that in a separate amparo proceeding regarding the use of evidence obtained

through torture, it was explained that it was not possible to restart the criminal proceedings,

since a final conviction had already been handed down and had acquired the status of res

judicata. It was emphasized that the confession had not been taken into consideration in the

conviction since it was unlawful. Finally, the Federal Public Defender Service had filed

several amparo appeals in cases of torture, to which the judiciary responded on one occasion

that the Service did not have the legal standing to address the matter, since it was under local

jurisdiction.

71.

In the Working Group’s opinion, the source has credibly established that Mr. García

Noguez was tortured to make him confess to the offence of kidnapping. Mr. García Noguez

reported the acts of torture in his preliminary statement, but neither the judge nor the public

prosecutor took any action in this regard.

72.

The present case reveals a prima facie violation of the absolute prohibition of torture,

which is a peremptory norm of international law, as well as of the Convention against Torture

and Other Cruel, Inhuman or Degrading Treatment or Punishment; principle 6 of the Body

of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment;

and rule 1 of the United Nations Standard Minimum Rules for the Treatment of Prisoners

(the Nelson Mandela Rules).

73.

The Working Group is concerned about remarks such as those that the source claims

were made by Mr. García Noguez’s lawyer, who allegedly stated that it was a waste of time

to report acts of torture in Mexico because human rights had no value and because torture

was normal practice for the criminal investigation police. This is even more worrisome when

observing that neither the judge nor the prosecutor was willing to act on the complaints filed.

74.

The Working Group also expresses its deep concern that, after 19 years of detention,

a longer version of Mr. García Noguez’s preliminary statement appeared, in which the

remarks originally made by the detainee concerning torture and the unlawfulness of detention

appear. The statement covers the treatment that Mr. García Noguez received at the hands of

the authorities immediately after his arrest, including the torture he allegedly suffered in the

course of the interrogations, during which he had no legal assistance, to force him to plead

guilty and make a statement accepting the charges they were trying to bring against him and

of which he was eventually convicted. In the light of these dire circumstances, the Working

Group decides to refer the present case to the Special Rapporteur on torture and other cruel,

27 Human Rights Committee, general comment No. 35 (2014), para. 17. See also Opinions No. 5/2020

and No. 6/2020.

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inhuman or degrading treatment or punishment and the Special Rapporteur on the

independence of judges and lawyers.

75.

In view of the foregoing, the Working Group considers that in the present case a

violation of international human rights law has been established and the detention of

Mr. García Noguez is arbitrary, contrary to the provisions of articles 8, 9, 10 and 11 of the

Universal Declaration of Human Rights and articles 2 and 9 of the Covenant, and falls within

category I.

Category III

76.

The right to a fair trial is established in the Universal Declaration of Human Rights

and international human rights law as one of the fundamental pillars to protect individuals

against arbitrariness. In this regard, everyone has the right to be heard in a public trial in

proceedings in which their rights and obligations are defined and at which they have all the

guarantees necessary for their defence and where their right to be tried by a competent,

independent and impartial court is respected.

77.

The Working Group recalls that in order for detention to not be arbitrary, any detained

person must have 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.28 Denying this guarantee 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, in accordance with the United Nations Basic Principles and Guidelines on

Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring

Proceedings Before a Court, the right to habeas corpus constitutes a peremptory norm of

international law, which applies to all forms of deprivation of liberty.29

78.

Any form of detention or imprisonment should be ordered by a judicial or other

authority in accordance with the law or be immediately subjected to effective oversight by

that authority, whose status and remit should afford the strongest possible guarantees of

competence, impartiality and independence.30 Independent judicial oversight of the necessity

and proportionality of the detention has not been guaranteed to Mr. García Noguez.

79.

The Working Group emphasizes that immediate judicial oversight is a guarantee

against arbitrary or illegal detentions. In a State governed by the rule of law, it is the

responsibility of the judge to guarantee the rights of the detainee, to authorize the adoption

of precautionary or restrictive measures when strictly necessary and to ensure, in general,

that the accused is treated in a manner consistent with the presumption of innocence. The

mere knowledge by a judge that persons are detained does not imply compliance with that

guarantee, as detainees must appear personally and make their statement before the judge or

a competent authority.31 Immediate judicial review of detention is particularly relevant when

applied to arrests made without a warrant.32

80.

In the present case, the source has established that the facts were manipulated and a

kidnapping was “contrived” with unlawful and fabricated evidence and statements. It is

alleged that there was an undue delay in handing the detainee over when there were no

reasonable grounds for not doing so immediately. The police may not detain persons for

longer than is strictly necessary to bring them before the public prosecutor, let alone torture

them for the purpose of obtaining a confession or information related to an investigation.

28 A/HRC/30/37, paras. 2 and3. See also Opinions No. 2/2018, No. 4/2018, No. 42/2018, No. 43/2018,

No. 79/2018 and No. 49/2019.

29 A/HRC/30/37.

30 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

(guideline 1).

31 Inter-American Court of Human Rights, García Asto and Ramírez Rojas v. Peru, Judgment of

25 November 2005, para. 109 and notes 146 and 147.

32 Inter-American Court of Human Rights, Espinoza González v. Peru, Judgment of 20 November 2014,

para. 129 and note 207.

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This requirement is a guarantee for the liberty and security of persons and against arbitrary

police action that may be intended to coerce the detainee.

81.

The admission into evidence of a statement allegedly obtained through torture or

ill-treatment places the entire proceeding within the category of an unfair and arbitrary trial.33

Furthermore, the Working Group notes that the torture inflicted on Mr. García Noguez caused

him to be terribly afraid, so he refrained from testifying as he was threatened with death and

received threats against members of his family, which violated his right to equality of arms

under article 14 (1) of the Covenant.34

Due process

82.

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. 35 The United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before

a Court clearly establish the importance of a review, by an independent and impartial court,

of the arbitrariness and lawfulness of deprivation of liberty, as a means of safeguarding the

right protected under article 9 of the Covenant.36

83.

Mr. García Noguez was handed over to the judge of the Third Criminal Court of First

Instance of the Judicial District of Ecatepec, in the Dr. Sergio García Ramírez Remand and

Social Rehabilitation Centre, on 26 June 2000, as required by the arrest warrant issued by the

judge on 23 June 2000, for the offences of kidnapping, organized crime and carrying a

prohibited weapon.

84.

The Working Group notes with even greater alarm that the charges against Mr. García

Noguez have been changed and enhanced. Additionally, after 19 years of detention, an

extended version of Mr. García Noguez’s preliminary statement appeared. This casts serious

doubts as to whether his trial was conducted by an independent and impartial court, especially

as there is no evidence to support the charges laid.

Circumstances of detention, incommunicado detention and enforced disappearance

85.

The Working Group has already noted in its analysis under category I that the reasons

for detention must include the legal basis for the detention, the evidence on which the

allegation is based and the wrongful act committed. Thus, arrested persons have the right to

be informed by the authorities, at the time of arrest, of their right to have a lawyer of their

choice37 and to be promptly informed of the charges against them.38 The disappearance and

incommunicado detention suffered by Mr. García Noguez 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.39

86.

These arguments have been ignored by the Mexican judiciary, which has kept

Mr. García Noguez in pretrial detention, despite the fact that the Mexican legal system

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 offences for which the maximum penalty does not exceed two years’ imprisonment and

within one year if the penalty is longer, unless the accused seeks an extension for the purposes

of mounting a defence.

87.

The Government bases the charges on the statement that the source alleges was

obtained under torture. However, the burden of proof with regard to demonstrating that this

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

para. 43.

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

35 See Human Rights Committee, general comment No. 32 (2007).

36 A/HRC/30/37, annex (principle 6).

37 Ibid., principle 9.

38 Article 9 (2) of the Covenant.

39 Article 8 of the Universal Declaration of Human Rights and article 2 (3) of the Covenant.

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statement was given freely and voluntarily has not been satisfied.40 The Government has

limited itself to transcribing the medical reports assuring that Mr. García Noguez was in

perfect health and showed no signs of torture on his body. The Working Group wishes to

emphasize that the intentional application of pressure to obtain a confession violates

articles 2, 13, 15 and 16 of the Convention against Torture.41

88.

The Government and the Mexican authorities should have refuted the source’s claims

and ensured that an effective investigation into the allegations of mistreatment was carried

out so that the torturer could be prosecuted for human rights violations. Such action helps to

eliminate impunity in general and is of great importance in ensuring accountability to the

victim and to society. Nothing of this nature has been done in this case.

Excessive and disproportionate automatic pretrial detention

89.

The Working Group notes that Mr. García Noguez was held in pretrial detention for

nearly seven years. 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 the light

of the circumstances and reassessed as it extends in time.42 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 the merits of pretrial detention in each case to be examined in a reasoned judicial

decision, which did not occur in the case of Mr. García Noguez, who has been obstructed or

delayed in all procedural steps, to the point that proceedings are still ongoing after more than

22 years of detention.

90.

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

that Mexico has voluntarily assumed before the international community. Automatic pretrial

detention violates, inter alia, the rights to personal liberty, legality, presumption of innocence,

due process guarantees and an effective remedy. Automatic pretrial detention increases the

chances of a person being subjected to torture or other cruel, inhuman or degrading treatment.

Mr. García Noguez has been a victim of the application of this measure, thus depriving him

of the fundamental rights set out above.

91.

The Working Group underscores the urgent call made to the Government of Mexico

on 5 September 2022 to immediately abolish mandatory or automatic pretrial detention,

considering that one of its consequences is that many Mexican nationals spend more than a

decade deprived of their liberty, awaiting trial, without sentence and in conditions that place

their lives and personal integrity at serious risk,43 as has occurred in the case of Mr. García

Noguez.

92.

Disregarding the provisions of article 9 (3) of the Covenant, no consideration was ever

given to granting Mr. García Noguez alternative measures to serve his sentence, despite the

appeal made to States regarding the use of these measures in the context of the COVID-19

pandemic, which aggravated the situation.

93.

In addition, article 9 (2) of the Covenant provides that anyone who is arrested shall be

informed, at the time of the arrest, of the reasons for the arrest. In the present case, the

Working Group is convinced that Mr. García Noguez learned of the reasons for his arrest

only while he was being tortured, which violates the Convention against Torture and article 9

of the Covenant.

94.

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. García Noguez has been the

40 Human Rights Committee, general comment No. 32 (2007), para. 41.

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

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

43 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 at

www.ohchr.org/en/press-releases/2022/09/mexico-should-overturn-mandatory-pre-trial-detention-un-

experts.

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victim of an extreme violation of the right to due process, as the proceedings have dragged

on since his arrest in 2000.

95.

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

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

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

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

ability of Mr. García Noguez to enjoy the right to a fair hearing, in accordance with

international human rights rules, including article 14 of the Covenant, has been seriously

undermined. The above-mentioned violations are of such gravity that they lead the Working

Group to classify Mr. García Noguez’s detention as arbitrary under category III.

Concluding observations

96.

The Working Group is dismayed by the details of the deprivation of liberty of

Mr. García Noguez, the clearly impartial handling of his trial based on confessions obtained

under torture, the lack of guarantees and the manipulation of the proceedings. All these

circumstances resulted in a sentence of more than 34 years’ imprisonment.

97.

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.44

98.

The Working Group, noting that the list of offences carrying mandatory pretrial

detention was extended in 2019, urges the Government to amend or repeal the constitutional

and legal provisions that provide for mandatory pretrial detention, to bring them into line

with the State’s obligations.

99.

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 most recent visit to Mexico, the Working Group believes

that it is an opportune moment to continue its dialogue with the Government through another

visit to the country. The Working Group notes that the Government maintains a standing

invitation to all special procedure mandate holders of the Human Rights Council.

Decision

100.

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

The deprivation of liberty of Armando García Noguez 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.

101.

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

to remedy the situation of Mr. García Noguez 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.

102.

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

case, the appropriate remedy would be to release Mr. García Noguez immediately and accord

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

international law. In the context of the COVID-19 pandemic and the threat that it poses in

places of detention, the Working Group calls upon the Government to take urgent action to

ensure the immediate release of Mr. García Noguez.

103.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

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

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Mr. García Noguez and to take appropriate measures against those responsible for the

violation of his rights.

104.

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.

105.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

Follow-up procedure

106.

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

(b)

Whether compensation or other reparations have been made to Mr. García

Noguez;

(c)

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

Noguez’s rights and, if so, the outcome of that investigation;

(d)

Whether any legislative amendments or changes in practice have been made to

harmonize the laws and practices of Mexico with its international obligations in line with the

present opinion;

(e)

Whether any other action has been taken to implement the present opinion.

107.

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.

108.

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.

109.

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.45

[Adopted on 17 November 2022]

45 Human Rights Council resolution 51/8, paras. 6 and 9.