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.25-02061 (E) 010425 010425
Human Rights Council
Working Group on Arbitrary Detention
Opinions adopted by the Working Group on Arbitrary
Detention at its 101st session, 11–15 November 2024
Opinion No. 69/2024 concerning Nino Colman Hoyos Henao (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 51/8.
2.
In accordance with its methods of work,1 on 31 October 2023 the Working Group
transmitted to the Government of Mexico a communication concerning Nino Colman Hoyos
Henao. The Government replied to the communication on 31 January 2024. 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).
* Mumba Malila did not participate in the discussion of the case.
1 A/HRC/36/38.
United Nations
A/HRC/WGAD/2024/69
General Assembly
Distr.: General
19 February 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Nino Colman Hoyos Henao, born on 24 May 1974, is a Colombian national and a
naturalized Mexican citizen. He is a computer systems engineer.
i.
Arrest and trial proceedings
5.
The source indicates that, on 11 December 2007, following the kidnapping of a
woman in what was then the Federal District (now Mexico City), the Office of the Special
Prosecutor for Kidnappings (the “anti-kidnapping unit”) of the Office of the Attorney General
of the Federal District opened preliminary investigation No. FSPI/T3/1758/07-12. Under a
prosecutorial decision of 25 May 2009, the prosecution service asked the police officers
leading the investigation to find Mr. Hoyos Henao immediately and bring him in for
questioning in connection with the investigation.
6.
On 11 August 2009, between 4 p.m. and 4.30 p.m., officers of the Federal District
Judicial Police Force arrived at Mr. Hoyos Henao’s place of work in the then Federal District
and intercepted him as he was leaving. One of them, without identifying himself as an officer,
showed Mr. Hoyos Henao a sheet of paper for a few seconds and told him that he was under
arrest. Mr. Hoyos Henao asked them to identify themselves as officers, and one of them,
without answering, showed him his badge. They grabbed hold of him by the arms, and at
least three officers put him into an unmarked private vehicle.
7.
Inside the vehicle, Mr. Hoyos Henao was guarded by the criminal investigation
officers, who searched his trouser pockets, took his mobile telephone and then immediately
handcuffed him. One of the police officers riding in the back of the vehicle pushed him down
until his head was between his legs. They then began to insult him, saying to him, for
example, “you’re screwed now, nobody knows we have you, so tell us where the girl is”,
“you fucked up, things are different here in Mexico”, “they’re paying us to kill you” and
“you’ll see how we’ll get you to confess”.
8.
In the incident report, the investigating officers falsely stated that, on the day that
Mr. Hoyos Henao was taken into custody, they had gone to his place of work in order to
arrest him, that upon seeing him they had identified themselves by showing him the document
referred to above, and that Mr. Hoyos Henao had then become upset and violent and had tried
to flee, as a result of which the police officers had had to use the minimum force necessary
to subdue him. They also stated that the arrest had taken place at 6 p.m. on 11 August.
9.
There is no indication in the statements of the criminal investigation officers that any
police officer had informed Mr. Hoyos Henao of the reason for his arrest, of where he was
being taken, of his rights as a detainee or of his right to assistance from the consular
authorities of his country of origin, although he had stated at the time of his arrest that he was
from Colombia. In addition, Mr. Hoyos Henao was arrested under a summons, not a warrant
for his arrest or apprehension. The source notes that, in the Mexican legal system, a summons
is not a legal document under which a person may be officially deprived of his or her liberty,
in accordance with article 16 of the Mexican Constitution.
10.
Subsequently, Mr. Hoyos Henao was taken to the anti-kidnapping unit, where his
physical and psychological torture at the hands of members of the judicial and other police
forces allegedly continued.
11.
According to the prosecutor’s statement of 11 August 2009, the criminal investigation
officers brought Mr. Hoyos Henao before the anti-kidnapping unit of the Office of the
Attorney General of the Federal District at 8.38 p.m., at which time the decision of the third
rota public prosecutor to proceed with preliminary investigation No. FSPI/T3/1758/07-12
with the suspect in custody was registered.
12.
The source indicates that Mr. Hoyos Henao did not appear before the prosecution
service until after 10.17 p.m.; that is, six hours after his arrest. At 10.17 p.m., a forensic
physician from the Directorate of Forensic Support for Central Prosecution Services issued
a certificate for him, after which he was brought before the third rota public prosecutor. The
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source adds that this was not the same prosecutor who had issued the summons of 25 May or
who had undertaken the preliminary investigation.
13.
At approximately 2 a.m. on 12 August 2009, at the premises of the anti-kidnapping
unit, Mr. Hoyos Henao was led to an office where his fingerprints were taken and he was
photographed from the front and side. The prosecutor then read him his rights, although his
right to consular assistance was never mentioned, and told him that he could make a telephone
call. However, the call was not put through because the telephone number that he tried to call
was long distance, and only local calls were allowed.
14.
Within 48 hours after the arrest, the prosecution service requested that Mr. Hoyos
Henao be placed in preventive custody (arraigo), since several inquiries were still pending,
even though one year and eight months had passed since the investigation into the kidnapping
had begun. A preventive custody order was approved by Criminal Court No. 28 of the Federal
District.
15.
During the period of preventive custody, which lasted until 7 September 2009, the
prosecution service continued its supposed investigation into the case. However, there is a
record of only one interview with a hearsay witness, which was later used as evidence against
Mr. Hoyos Henao at his trial.
16.
On 28 August 2009, the prosecutor brought criminal proceedings without custody
against Mr. Hoyos Henao for the offence of unlawful deprivation of liberty by kidnapping
and asked the court to issue an arrest warrant. The warrant was executed on 7 September
2009, leading to the opening, on 9 September 2009, of a criminal trial against Mr. Hoyos
Henao before Criminal Court No. 28 of the Federal District.
17.
The source reports that Mr. Hoyos Henao was initially defended by private counsel.
However, Mr. Hoyos Henao eventually turned to a public defender owing both to the cost of
private counsel and to the negligence of his earlier lawyer, who had failed to appear at
important appointments. On 1 December 2009, the lawyer had not appeared at a scheduled
hearing where Mr. Hoyos Henao was to face the victim’s relatives, leading to the termination
of the lawyer’s services. Mr. Hoyos Henao then asked to be assisted by the public defender
service of Criminal Court No. 28, and a lawyer was appointed for him. This lawyer merely
accepted the appointment and came to an agreement with the judge hearing the case to bring
the pretrial proceedings to an end, only 10 days after they had begun. This was the stage of
the proceedings during which evidence that Mr. Hoyos Henao had not been involved in the
crime of which he was accused should have been offered and examined.
18.
In January 2010, Mr. Hoyos Henao was appointed a new lawyer who, without being
fully informed about the case, put forward faulty arguments that harmed Mr. Hoyos Henao
and led, on 9 August 2010, to his being convicted and sentenced to 60 years’ imprisonment
for the offence of unlawful deprivation of liberty, because the evidence had been improperly
and inadequately assessed. The extent of the involvement attributed to Mr. Hoyos Henao was
the creation of two email accounts allegedly used by others to start negotiations for the release
of the kidnapping victim. However, in response to a request from the court for information
on the email accounts, Microsoft Mexico stated, in a report of 28 October 2009, that the
accounts with respect to which information on activity history and login dates had been
requested had not been found in its system. In other words, at the time that the report was
issued, there was no record that the accounts had existed. The source alleges that this report
went unnoticed by the court-appointed lawyers, was improperly assessed by the court and,
consequently, led to Mr. Hoyos Henao’s conviction.
19.
An appeal against the judgment was lodged with Division No. 9 of the High Court of
Justice of the Federal District, under file No. 242/2010, by a third court-appointed lawyer.
However, in a decision issued on 14 January 2011, the prison sentence handed down at first
instance was upheld, with the various irregularities in how the evidence used to convict
Mr. Hoyos Henao was obtained once again being overlooked.
20.
An application for direct amparo was lodged against the appellate judgment, under
file No. 112/2015, and a decision was issued by Collegiate Criminal Court No. 8 of the First
Circuit on 16 July 2015. In the decision, the Court granted Mr. Hoyos Henao’s application
for amparo, annulled the August 2010 and January 2011 judgments against him and, in the
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light of the violation of his right to consular assistance at the time of his arrest, ordered a
retrial in order to ensure that Mr. Hoyos Henao could receive legal assistance from the
Colombian consulate and to thereby safeguard his right to an adequate defence.
21.
As a result, the criminal proceedings were reopened at the point at which the trial
judge had decided to end the pretrial proceedings, in order to allow new evidence to be
offered. However, evidence that had been obtained under torture during the arbitrary
detention remained in the case file.
22.
After the case was retried and a new judgment handed down, on 1 April 2019,
Criminal Division No. 4 of the High Court of Justice of Mexico City sentenced Mr. Hoyos
Henao to 55 years’ imprisonment and the payment of a fine of 84,249.62 Mexican pesos.
ii.
Legal analysis
23.
The source argues that Mr. Hoyos Henao’s detention is arbitrary and falls within
categories I, III and V of the Working Group.
a.
Categories I and III
24.
The source alleges that Mr. Hoyos Henao was taken into custody on 11 August 2009
by members of the criminal investigation police of the then Federal District, even though no
warrant had been issued beforehand for his arrest and he had not been caught in the act of
committing the offences with which he was charged. He was then brought before the
prosecution service, which placed him in preventive custody. It was not until 29 August 2009
that the State brought criminal proceedings without custody – that is, without acknowledging
that Mr. Hoyos Henao had already been deprived of his liberty by that time – and not until
7 September 2009 that an arrest warrant was executed. The foregoing violates the most basic
principles of the prevention of arbitrariness in the administration of justice, correctness and
predictability, since there was no legal basis for Mr. Hoyos Henao’s arrest. He was then
placed in preventive custody – a measure that violates international law – which allowed the
State to fabricate evidence against him on the basis of torture. Finally, for show, an arrest
warrant was executed when Mr. Hoyos Henao had already been deprived of his liberty in a
preventive custody unit for almost a month.
25.
According to the source, Mr. Hoyos Henao was a victim of arbitrary detention, and
the deprivation of his liberty was unjustified. While it is recognized that the right to personal
liberty under article 9 of the Covenant is not absolute and that States may deprive persons of
their liberty where justified, this power must not be exercised arbitrarily or in contravention
of the principle of legality. Therefore, a deprivation of liberty must not be carried out if there
is no justification for it or if it is not based on the grounds established by law, in accordance
with due process. The specific obligations for the protection of the right to personal liberty
that are assumed by States include the obligation to ensure that no one is detained for longer
than is strictly necessary and that there are effective mechanisms in place for reviewing the
proportionality of the period of time that a person has been deprived of his or her liberty.
26.
The source alleges that, in the present case, the State failed to comply with its
obligations under articles 2 (1) and (2) and 9 of the Covenant because it subjected Mr. Hoyos
Henao to arbitrary detention.
27.
The source notes that the Mexican legal system allows a person to be arrested only
under three circumstances: (a) pursuant to an arrest warrant; (b) in cases of flagrante delicto;
and (c) in emergencies. In the case at hand, when Mr. Hoyos Henao was arrested by members
of the criminal investigation police of the Federal District at his place of work, there was no
order for his arrest or apprehension, he had not been caught in the act of committing an
offence and there was no emergency. Accordingly, the source claims that the State violated
article 9 (1) of the Covenant, since the arrest was not carried out in accordance with the
procedure established under Mexican law. 2 In addition, Mr. Hoyos Henao was not
2 Bakur v. Belarus (CCPR/C/114/D/1902/2009), para. 7.2; Amanklychev v. Turkmenistan
(CCPR/C/116/D/2078/2011), para. 7.3; Askarov v. Kyrgyzstan (CCPR/C/116/D/2231/2012),
para. 8.4; Ortikov v. Uzbekistan (CCPR/C/118/D/2317/2013), para. 10.3; and Allaberdiev v.
Uzbekistan (CCPR/C/119/D/2555/2015), paras. 8.4 and 8.5.
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immediately informed of the reasons for his arrest or the charges against him – the charges
did not even exist at the time of his arrest – in violation of article 9 (2) of the Covenant.3
28.
The source alleges that Mr. Hoyos Henao was deprived of his liberty by the police
and the prosecution service for at least six hours before he was taken to the premises of the
Office of the Attorney General of the Federal District. Thus, the detention lasted longer than
was strictly necessary, since Mr. Hoyos Henao was not brought before the supervisory
authority until after various investigative measures had been carried out and after he had been
subjected to acts of torture – what is, according to the source, a common practice in Mexico.
29.
Beyond the violation of article 9 (3) of the Covenant resulting from these facts, the
source recalls that incommunicado detention violates detainees’ right to challenge the legality
of their detention before a judge.4 The combination of the fact that the arrest was carried out
without a warrant and the fact that Mr. Hoyos Henao was not promptly brought before a
judge is particularly serious. In the light of these facts, the detention is arbitrary under
category I.
30.
According to the source, after his arrest, Mr. Hoyos Henao was subjected to acts of
torture; he was not brought before the appropriate authorities immediately after his arrest; his
fate and whereabouts were unknown during that time, and he can therefore be considered a
victim of enforced disappearance; he was presented to the media as a kidnapper; he was not
provided with high-quality legal assistance or representation at key moments of the
proceedings; and he did not receive consular assistance even though he is a Colombian
national. The source points out that these facts, taken together, amount to serious violations
of the right to a fair, independent and impartial trial and that Mr. Hoyos Henao’s detention is
therefore also arbitrary under category III.5
31.
The source adds that, under domestic law, Mr. Hoyos Henao was placed in preventive
custody for the time needed to conduct an investigation. The measure was applied
automatically, in advance, with no legal or factual basis for it and no analysis of the
proportionality or necessity of continuing to deprive him of his liberty as a preventive
measure.
32.
In the opinion of the source, the use of preventive custody is particularly serious, not
only because it violates article 9 (3) of the Covenant, but also because there is disturbing,
documented evidence of the existence of a policy of coercing defendants into pleading guilty.
In Mexico, the imposition of preventive custody as a general rule in certain cases results in
the unauthorized deprivation of liberty of a large number of innocent people.
33.
In this regard, the source refers to paragraph 125 of the judgment of 7 November 2022
of the Inter-American Court of Human Rights in the case of Tzompaxtle Tecpile et al. v.
Mexico, in which the Court stated that:
Every person, who, as a result of any investigation or proceedings, is believed
to be a perpetrator of or participant in an imprisonable act, is the holder of the
guarantees of due process. The institution of arraigo of a pre-procedural nature for
the purposes of investigation is an absolute denial of such guarantees since the
detainee is stripped of protection. Therefore, no restrictions of any kind to liberty may
be imposed other than in criminal proceedings. Otherwise, this would constitute the
very denial of due process.
34.
According to the source, Mr. Hoyos Henao’s placement in preventive custody violated
his rights to the presumption of innocence and to personal liberty and the absolute prohibition
of arbitrary detention.
35.
Despite the existence of rulings and evidence that demonstrate that Mr. Hoyos Henao
was arbitrarily detained, no authority has provided him with an adequate remedy for his
arbitrary detention, given that his release was never ordered. The source claims that this
situation constitutes a violation of article 9 (5) of the Covenant. In addition, the Mexican
3 Opinions No. 23/2017, para. 23; and No. 10/2015, para. 34.
4 See opinions No. 67/2021, No. 10/2017, No. 6/2017, No. 56/2016 and No. 53/2016.
5 See opinion No. 66/2017.
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courts are alleged to have considered and based their judgments on unlawful evidence
obtained through the torture of Mr. Hoyos Henao.
36.
The source emphasizes that State authorities have undertaken no ex officio review of
Mr. Hoyos Henao’s custodial sentence to assess whether, given the existing body of evidence,
his continued imprisonment is reasonable and proportional. Mr. Hoyos Henao was sentenced
to 55 years’ imprisonment; given his age when he was arrested, this means that he will not
be able to regain his freedom until he is 90 years old, unless a review of his sentence is made
possible under domestic law. In the source’s view, any prison sentence that is excessive is,
by its very nature, arbitrary.6
37.
According to the source, it is clear that Mr. Hoyos Henao’s right to personal liberty
and the safeguards under articles 2 (1) and (2) and 9 (1–5) of the Covenant have been violated,
given that: he was deprived of his liberty in a manner that was not in accordance with the
applicable procedure established by law; he was not informed of the reasons for his detention
at the time of his arrest; he was kept in detention unlawfully, inasmuch as he was not promptly
brought before a judge; he was placed in preventive custody without an analysis of the
proportionality and necessity of this measure; his right to consular assistance was not
guaranteed; the warrant for his arrest was issued after the State had already had him in
preventive custody for a month; and other serious violations of his human rights had
occurred.
38.
The State itself, through the Federal District Human Rights Commission, has already
determined that there was a violation of Mr. Hoyos Henao’s human right not to be subjected
to arbitrary detention; however, an adequate remedy has not been provided, as he has not
been released. In addition, Mr. Hoyos Henao was tortured, as shown in the decision adopted
by the Committee against Torture on communication No. 893/2018,7 and he was subjected to
cruel, inhuman and degrading treatment. It is also claimed that Mr. Hoyos Henao did not
receive adequate medical care.
39.
The source claims that Mr. Hoyos Henao was not assisted by counsel who diligently
advocated for his interests and needs. This was confirmed by the Federal District Human
Rights Commission in its recommendation No. 10/2014.
b.
Category V
40.
The source considers that, while it is true that Mr. Hoyos Henao was not detained
specifically because he is of Colombian origin, it cannot be ignored that the Mexican
authorities adopted a discriminatory attitude towards him throughout the proceedings. As
evidence of this, the source points to the comments made to Mr. Hoyos Henao during his
arrest, such as “you’re screwed now, nobody knows we have you, so tell us where the girl
is”, “you fucked up, things are different here in Mexico” and “they’re paying us to kill you”.
41.
The source also considers that the failure to guarantee Mr. Hoyos Henao’s right to
consular assistance amounts to a form of discrimination based on nationality.
(b)
Response from the Government
42.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government on 31 October 2023 and requested it to submit a response by
2 January 2024. The Government requested, and was granted, an extension of the deadline
for providing its response. The Working Group received the Government’s response on
31 January 2024, within the established deadline.
43.
The Government, in its response, states that on 11 December 2007, preliminary
investigation No. FSPI/T3/01758/07-12 was opened by the Office of the Special Prosecutor
for Kidnappings (the “anti-kidnapping unit”) of the Office of the Attorney General of the
6 Fernando v. Sri Lanka (CCPR/C/83/D/1189/2003), para. 9.2; and Dissanayake v. Sri Lanka
(CCPR/C/93/D/1373/2005), para. 8.3.
7 Hoyos Henao et al. v. Mexico (CAT/C/75/D/893/2018).
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Federal District in connection with a probable kidnapping. This investigation led to case
No. 271/2009 at the now defunct Criminal Court No. 28 of the then Federal District.
44.
On 11 August 2009, Mr. Hoyos Henao, as the accused, was brought before the
prosecution service pursuant to an order to produce issued by the investigating prosecutor.
That same day, Mr. Hoyos Henao was informed of his rights as the likely perpetrator, and a
medical report, signed by the medical expert assigned to what was then the Federal Office of
the Attorney General, was issued.
45.
On 12 August 2009, after Mr. Hoyos Henao appointed private counsel and made his
preliminary statement, the investigating prosecutor ordered that Mr. Hoyos Henao be
officially detained as the likely perpetrator of an aggravated kidnapping. On 13 August 2009,
the prosecutor drafted a decision on preventive custody under house arrest, which the then
Criminal Court No. 28 issued and which stated that the measure could not exceed 30 days
and set out the relevant calculation.
46.
On 28 August 2009, in view of the prospect of bringing criminal proceedings without
custody against Mr. Hoyos Henao for the offence of aggravated kidnapping, the prosecutor
requested that the necessary arrest warrant be issued. The charges were forwarded to and
received by the defunct Criminal Court No. 28 of the then Federal District that same day. On
7 September 2009, a warrant was issued for the arrest of Mr. Hoyos Henao for the offence of
aggravated kidnapping, and it went into effect the same day.
47.
On 11 September 2009, during the proceedings at first instance, the defunct Criminal
Court No. 28 issued an order, within the constitutional time frame, for Mr. Hoyos Henao to
be placed in detention for the offence of aggravated kidnapping.
48.
On 9 August 2010, the defunct Criminal Court No. 28 of the then Federal District
issued a judgment finding Mr. Hoyos Henao guilty of aggravated kidnapping and sentencing
him to 60 years’ imprisonment and a fine of 101,089.43 Mexican pesos. An appeal was filed
against the judgment, and on 14 January 2011, the appellate court upheld the finding that
Mr. Hoyos Henao was fully responsible.
49.
On 14 January 2011, Mr. Hoyos Henao lodged an application for amparo, registered
under file No. D.P. 112/2015, which was heard by Collegiate Criminal Court No. 8. At a
sitting on 16 July 2015, the federal body decided to grant the application for amparo and
ordered a retrial so that the order closing the pretrial proceedings would be vacated and
Mr. Hoyos Henao would be informed of his right to consular assistance.
50.
On 23 January 2018, a judgment was handed down finding Mr. Hoyos Henao guilty
of aggravated kidnapping and sentencing him to a term of imprisonment of 56 years and
8 months and a fine of 84,249.62 Mexican pesos.
51.
The Government reports that, in connection with the compensation decisions of the
Mexico City Executive Commission for Victim Support, Mr. Hoyos Henao filed for indirect
amparo with Administrative Court No. 13 in Mexico City on 14 December 2021, under
applications No. 1867/2021 and No. 1868/2021. Mr. Hoyos Henao also filed amparo appeal
No. 7/2023 with Collegiate Administrative Court No. 4 of the First Circuit. Proceedings are
under way, and a decision is pending.
52.
In addition, the Government argues that, under paragraph 33 (d) (ii) of the Working
Group’s methods of work, the source’s complaint regarding Mr. Hoyos Henao should be
rejected, in the light of the Working Group’s mandate and specific rules.
53.
The Government recalls that, in order to strengthen the good coordination between
the various international bodies working in the field of human rights, paragraph 33 (d) (ii) of
the Working Group’s methods of work provides that “if the body to which the matter has
already been referred has the function of dealing with individual cases … the Working Group
shall transmit the case to that other body if the person and facts involved are the same”.
54.
The Government supports its claim by attaching the decision adopted by the
Committee against Torture on 3 February 2023 under article 22 of the Convention against
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Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.8 According to the
Government, the communication that was submitted to the Committee against Torture and
regarding which a decision has already been issued refers to the same person (Mr. Hoyos
Henao) and lays out the same facts as those in the submission to the Working Group.
55.
The Government adds that the Committee against Torture set out its findings,
following its consideration of the merits, with respect to Mr. Hoyos Henao’s arrest on
11 August 2009 and his placement in preventive custody, owing to their connection to the
issue of torture. In addition, the Government indicates that it is taking the necessary steps to
implement the Committee’s decision and, on 2 May 2023, submitted its first follow-up report.
56.
The Government reiterates that the Working Group should not consider the present
case, which has already been addressed internationally, as a United Nations body has issued
findings on it and is monitoring the recommendations made with respect to it. The foregoing
is important not only for the purposes of ensuring good coordination between the various
United Nations bodies working in the field of human rights (see Commission on Human
Rights resolution 1997/50), but also to avoid duplication or conflicting decisions that weaken
international human rights protection systems.
57.
The Government adds that petition No. P-1758-21, filed with the Inter-American
Commission on Human Rights, contains facts that were put before and analysed and
addressed by the Committee against Torture and that have been put before the Working
Group.
58.
According to the Government, there is no doubt that the persons concerned by petition
No. P-1758-21, filed with the Inter-American Commission on Human Rights, and the
communication submitted to the Committee against Torture 9 are the same, since both
Mr. Hoyos Henao and a family member appear in both. In the submission form for the
petition, however, the family member is named as the alleged victim and Mr. Hoyos Henao
as an affected family member. Although which of the individuals involved is named as the
direct victim and which as the indirect victim changes, it cannot be denied that the family
member’s claims as the direct victim under petition No. P-1758-21 stem from the facts of the
alleged detention and torture of Mr. Colman Hoyos, which were submitted to and analysed
and addressed by the Committee against Torture.
59.
The Government also stresses the need for domestic remedies to be exhausted so that
the State has the opportunity to resolve any issues raised in connection with the protection
and defence of human rights. It adds that its domestic legislation provides for direct amparo,
which allows petitioners to challenge convictions handed down against them. Under
article 17 of the Amparo Act, a period of eight years is granted for the filing of applications
for amparo in such cases.
60.
The Government claims that the investigation into the perpetrators of the alleged
torture is still pending. The Office of the Attorney General of Mexico City has indicated that
there is a criminal investigation regarding the torture related to the alleged arbitrary detention.
The investigation is being handled by its Office for the Investigation of Crimes Committed
by Public Servants, which sought to initiate proceedings on criminal case No. 117/2022 on
26 October 2022, but the court refused to issue the arrest warrant requested. The Office
appealed against the decision.
61.
The Government asserts that domestic remedies have not been exhausted because
proceedings with respect to amparo appeal No. 42/2023, filed with Collegiate Administrative
Court No. 4 of the First Circuit, are under way, and decisions have not yet been reached in
amparo appeals No. 7/2023 and No. 2/2023, filed with Collegiate Administrative Court
No. 21 of the First Circuit.
62.
Mr. Hoyos Henao’s arrest was carried out in accordance with the law and on the legal
basis applicable at the time that the acts were committed, and therefore cannot be considered
to constitute an arbitrary detention by the State under category I. Regarding the reference to
the apparent lack of an arrest warrant justifying the restriction of the petitioner’s liberty, the
8 Ibid.
9 Ibid.
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9
prosecutor asked the court to issue a warrant on 28 August 2009, and on 7 September 2009,
after studying the evidence gathered by the prosecution service, the court found that there
was sufficient evidence to move forward with the proceedings requested.
63.
The Government asserts that preventive custody as a means of restricting personal
liberty is provided for in article 16 of the Constitution. At the time when Mr. Hoyos Henao
was placed in preventive custody, the measure was provided for under article 270 bis of the
Code of Criminal Procedure for the Federal District, which allowed its use for up to 60 days.
In the case at hand, the court considered the prosecution service’s request in the light of the
evidence presented and in accordance with the legislation in force at the time, and it
concluded that preventive custody should be allowed but must not exceed 30 days, meaning
that it would run from 5 p.m. on 13 August 2009 to 9 a.m. on 12 September 2009.
64.
The Government adds that Mr. Hoyos Henao’s detention met international standards
relating to the right to a fair trial, as he received fair and public hearings by independent and
impartial tribunals in the determination of his rights and obligations, namely, Criminal Court
No. 28 at first instance, Criminal Division No. 9 of Mexico City at second instance and the
other authorities with which he filed various appeals.
65.
In addition, it should be noted that, at the hearing held on the preventive custody
measure on 13 August 2009, Mr. Hoyos Henao, in the presence of the lawyer then serving as
private counsel, said that he wished to reserve his right to make a statement regarding the
events in connection with which he was being investigated. At that hearing, Mr. Hoyos Henao
had the opportunity to put forward evidence that could provide a basis for a refusal of the
request for preventive custody and to indicate why he believed such a precautionary measure
was not necessary. He could therefore have put forward evidence in line with his interests
and exercised his right to offer evidence, an essential element of due process of law. The
Government emphasizes that, during the period of preventive custody, no effort was made to
challenge the measure or to bring it to an end. Mr. Hoyos Henao’s right to be heard by an
independent and impartial tribunal was respected, as was his right to an adequate defence and
his right to challenge decisions and put forward evidence as he deemed appropriate.
66.
Mr. Hoyos Henao’s detention is not arbitrary for reasons of discrimination, since it
was based on a preliminary investigation by the competent Mexican authorities, a judicial
decision and the likelihood that Mr. Hoyos Henao was the perpetrator of the kidnapping. The
detention was not based on race, colour, sex, language, religion, political or other opinion,
national or social origin, economic condition, birth or any other social status, but rather on
the commission of the offence.
(c)
Additional comments from the source
67.
The Working Group transmitted the Government’s response to the source on
31 January 2024 and requested any final comments and observations, which were received
on 15 February 2024.
68.
According to the source, the Government of Mexico, in its response, acknowledges
that Mr. Hoyos Henao was arrested on 11 August 2009 and brought before the prosecution
service on the basis of an “order to produce” issued by the investigating prosecutor. In the
Mexican legal system, there is no legal instrument known as an “order to produce” that may
be issued by an investigating prosecutor, either under the laws in force at the time of the
events or those in force today.
69.
According to the source, in the absence of a court order, the prosecution service may
detain a person only under prosecutorial arrest warrants, which may be issued in cases where
a person is caught committing an offence or where there is an emergency. However, in the
case at hand, the prosecution service could not issue an arrest warrant under either scenario
because the legal requirements for neither had been met.
70.
The source argues that, instead of summoning Mr. Hoyos Henao to appear before the
prosecutor, as provided for by law, the prosecution service acted outside the legal framework
and created, ad hoc, an instrument that has never existed, which the State refers to in its report
as “an order to produce issued by the investigating prosecutor” and which, in the case at hand,
served as a kind of arrest warrant pursuant to which Mr. Hoyos Henao was deprived of his
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liberty, with no legal basis, from his arrest on 11 August 2009 to 13 August 2009, the date
on which Criminal Court No. 28 of the Federal District ordered that he be placed in preventive
custody for 30 days.
71.
The source adds that the Mexican Government’s acknowledgement in its response
that “the investigating prosecutor ordered that Mr. Hoyos Henao be officially detained”
highlights a particularly serious point. It shows that a court did not have the opportunity to
review the lawfulness of Mr. Hoyos Henao’s detention, as it was the prosecution service that
took his statement and ordered his official detention, even though the procedural
requirements had not been met. Under the laws in force at the time of the events, the
prosecution service could order that a person under investigation be officially detained only
when the person had been caught committing an offence.
72.
Under article 267 of the Code of Criminal Procedure for the Federal District in force
at the time, it was only in cases where persons were caught committing an offence or under
similar circumstances that the prosecution service was allowed, on its own authority, to order
that a suspect be detained. The article also indicated that any violation of that provision would
give rise to the criminal responsibility of the person who had improperly ordered the
detention and the immediate release of the suspect.
73.
Mr. Hoyos Henao’s detention was arbitrary because at the time of his deprivation of
liberty, on 11 August 2009, there was no legal basis to justify a custodial measure. In addition,
he remained in detention because the prosecution service unlawfully and improperly ordered
that he be officially detained, without having had an opportunity to seek a judicial review of
the lawfulness of his detention; the person who improperly ordered the detention has to this
day not been held criminally responsible; and Mr. Hoyos Henao was not immediately
released, as required by article 267 of the Code of Criminal Procedure for the Federal District.
74.
Mr. Hoyos Henao has filed several appeals at second instance and applications for the
remedy of amparo, which, although it was recognized that there had been procedural
violations, such as the violation of his right to consular assistance, had resulted only in the
annulment of the proceedings before the trial court and did not address the procedural
violations committed by the prosecution service, an analysis of which would reveal that
Mr. Hoyos Henao had been detained without a legal basis and arbitrarily. To date, neither
Mr. Hoyos Henao nor his family have received the reparation to which they are entitled for
the serious violations of their human rights.
75.
The compensation measures referred to by the Government of Mexico are related to
two recommendations, No. 2/2013 and No. 10/2014, of the then Federal District Human
Rights Commission that recognized that Mr. Hoyos Henao had been a victim of arbitrary
detention and torture and that he had not had an adequate defence. However, Mr. Hoyos
Henao, as the direct victim, and his family member have had to challenge, through various
amparo proceedings, the authorities’ refusal to grant the compensation and ensure that it is
actually paid out.
76.
The source reports that the Federal District Human Rights Commission concluded in
its recommendation No. 2/2013 that Mr. Hoyos Henao was a victim of arbitrary detention
and torture and indicated that the victims should receive appropriate reparation for the harm.
Regarding the current status of the payment of the reparations, on 15 September 2023, the
Mexico City Executive Commission for Victim Support refused to prepare a reparation plan.
77.
To challenge the refusal to prepare a comprehensive reparation plan, Mr. Hoyos
Henao and his family member lodged a petition for amparo that was registered under file
No. A.I. 1981/2023 and is being handled by District Administrative Court No. 13 of Mexico
City. It is still before the Court, even though the recommendation was issued more than ten
years ago.
78.
The Federal District Human Rights Commission concluded in its recommendation
No. 10/2014 that Mr. Hoyos Henao had lacked an adequate defence and indicated that the
victims should receive appropriate reparation for the harm. However, with respect to the
current status of the payment of the reparations, on 8 February 2024, in connection with
petition for amparo No. A.I. 1669/2021, the Director General of Legal Services, on behalf of
the Legal Council and Legal Services, both part of the Mexico City government, reported on
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the “the legal impossibility” of making the payments. The matter is still before the courts,
even though the recommendation was issued almost ten years ago.
79.
As a result, Mr. Hoyos Henao and his family member have not yet received
appropriate compensation as part of the comprehensive reparation to which they are entitled,
and the perpetrators of the human rights violations have not been punished.
80.
The source argues that, contrary to the Government’s assertions, there is no
international lis alibi pendens in the present case. Mr. Nino Hoyos Henao’s case was
considered under a procedure of international settlement, which resulted in the issuance of
the decision adopted by the Committee against Torture under article 22 of the Convention,
concerning communication No. 893/2018. Although the communication makes repeated
reference to Mr. Hoyos Henao’s arrest, it should be noted that the Committee against Torture
did not take a position on the alleged arbitrariness of his detention, nor did it find a violation
of his right to personal liberty, since the focus of its mandate is to monitor compliance with
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment. In this regard, the arbitrary detention has still not been the subject of any
international analysis or deliberations.
81.
According to the source, the decision of the Committee against Torture not to
expressly request Mr. Hoyos Henao’s release stemmed from the fact that, in a previous case
involving Mexico,10 the Committee had expressly requested that the State release a group of
persons because their detention had been based on evidence obtained under torture. The
State’s response, however, was the first public display of disregard for the decisions of the
United Nations treaty bodies. The State indicated that it would not comply with any decision
of the Committee against Torture that involved a person’s release.
82.
The source asserts that there are no formal barriers, in terms of procedural law, that
prevent the Working Group from considering the present case and that, furthermore, there
are specific considerations of justice that warrant a forceful intervention on its part. In the
source’s view, the Working Group may and must adopt a decision requesting that the
Government release Mr. Hoyos Henao immediately and unconditionally.
83.
With respect to the petition filed with the Inter-American Commission on Human
Rights, the source asserts that the sole petitioner in the proceeding is Mr. Hoyos Henao’s
family member and that the petition relates to violations of the family member’s right to
health as an older person. Contrary to what the Government claims, Mr. Hoyos Henao has
filed no petitions with the inter-American human rights system. The source attaches the
petition submitted to the Inter-American Commission on Human Rights regarding Mr. Hoyos
Henao’s family member as an annex.
2.
Discussion
84.
The Working Group thanks the source and the Government for their submissions.
85.
The Working Group notes that the present case does, in fact, fall under
paragraph 33 (d) (ii) of its methods of work, as a case concerning Mr. Hoyos Henao was
previously submitted to the Committee against Torture, which examined the case and issued
a decision. The Group underscores that the Committee is a United Nations treaty body
competent to consider individual complaints and is a relevant body for the purposes of
paragraph 33 (d) (ii). In addition, both cases involve the same person. After examining the
circumstances of both cases, the Working Group concludes that the factual basis is also the
same, as the present case stems from Mr. Hoyos Henao’s arrest on 11 August 2009, between
4 p.m. and 4.30 p.m., by Mexican government officials and the alleged subsequent
ill-treatment.
86.
The Working Group wishes to point out that the human rights treaty bodies are
committees of independent experts that have been mandated to monitor the implementation
of the core international human rights treaties.
10 Ramírez Martínez et al v. Mexico (CAT/C/55/D/500/2012).
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3.
Disposition
87.
The Working Group has determined that the case has been considered and decided by
the Committee against Torture, on the basis of the same facts as those described in the
communication received by the Working Group, as already stated above.
88.
Therefore, in accordance with paragraph 33 of its methods of work, the Working
Group decides to transmit Mr. Hoyos Henao’s case to the Committee against Torture so that
it may follow up in accordance with its follow-up procedure for individual communications.
[Adopted on 15 November 2024]