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A/HRC/WGAD/2025/41

Opinion No. 41/2025 concerning Keren Selsy Ordóñez Hernández (Mexico)

UNO-Arbeitsgruppe über willkürliche Inhaftierung (WGAD) · 2025-08-29 · en UN

Opinion; Subjects: MEXICO, ARBITRARY DETENTION; [WGAD: UNO-Arbeitsgruppe über willkürliche Inhaftierung, willkürliche Haft; Groupe de travail sur la détention arbitraire; Gruppo di lavoro sulla detenzione arbitraria]

Volltext (verifizierbarer Originaltext)

GE.25-16842 (E) 261125 271125

Human Rights Council

Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary

Detention at its 103rd session, 25–29 August 2025

Opinion No. 41/2025 concerning Keren Selsy Ordóñez Hernández

(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 19 March 2025 the Working Group

transmitted to the Government of Mexico a communication concerning Keren Selsy Ordóñez

Hernández. The Government replied to the communication on 16 May 2025. The State is a

Party to the International Covenant on Civil and Political Rights.

3.

The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a)

When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty (as when a person is kept in detention after the completion of his or her

sentence or despite an amnesty law applicable to him or her) (category I);

(b)

When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States Parties are concerned, by articles 12, 18, 19, 21, 22, 25,

26 and 27 of the Covenant (category II);

(c)

When the total or partial non-observance of the international norms relating to

the right to a fair trial, established in the Universal Declaration of Human Rights and in the

relevant international instruments accepted by the States concerned, is of such gravity as to

give the deprivation of liberty an arbitrary character (category III);

(d)

When asylum-seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or remedy

(category IV);

(e)

When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination, based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation, disability

or any other status, that aims towards or can result in ignoring the equality of human beings

(category V).

1 A/HRC/36/38.

United Nations

A/HRC/WGAD/2025/41

General Assembly

Distr.: General

6 November 2025

English

Original: Spanish

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1.

Submissions

(a)

Communication from the source

4.

Keren Selsy Ordóñez Hernández, born on 24 February 1996, is a national of Mexico.

(i)

Context

5.

Ms. Ordóñez Hernández went to a house – where, unbeknownst to her, a kidnapping

victim was being held – to see her then partner, the father of her daughter, and was

subsequently arrested there. The source maintains that Ms. Ordóñez Hernández did not take

part in the events and that her detention is arbitrary.

(ii)

Arrest and detention

6.

On 8 November 2015, Ms. Ordóñez Hernández gave birth to a daughter by caesarean

section, with complications (pre-eclampsia and other previously diagnosed conditions)

arising during the delivery. She spent the following weeks recovering and resting at her

family’s home.

7.

At around 8 p.m. on 11 December 2015, in Xalapa, Ms. Ordóñez Hernández received

a call from her then partner, the father of her newborn daughter, who asked her to go to where

he was working so that he could give her money to cover the baby’s basic needs.

8.

At 8.10 p.m., Ms. Ordóñez Hernández arrived with her daughter. Upon her arrival,

while she, her daughter and her then partner were at the entrance to the house, several armed

individuals in plain clothes approached them without identifying themselves. They pointed

their guns at them and arrested all three of them.

9.

It later emerged that the individuals were officers of the National Guard and the

Judicial Police of the State of Tlaxcala. The officers did not have an arrest warrant and did

not inform Ms. Ordóñez Hernández of the reason for her arrest at the time of the arrest.

Ms. Ordóñez Hernández would not be informed of the reason for her arrest until 12 December

2015, at the time of her appearance before the prosecution service in Tlaxcala, more than

11 hours after the arrest.

10.

The police officers forced Ms. Ordóñez Hernández and her daughter into a vehicle,

where a woman snatched the child from her arms. The officers blindfolded Ms. Ordóñez

Hernández, tied her hands and put a covering over her head.

11.

The police officers physically and verbally assaulted Ms. Ordóñez Hernández, beating

her in the head and abdomen, even though she told them that she was still healing from a

caesarean section performed only a few weeks earlier. The officers also insulted her and

ordered her to say that she and her then partner had kidnapped a woman, whom Ms. Ordóñez

Hernández did not know. Later, the officers placed a plastic bag over her head to suffocate

her. These acts were carried out repeatedly for approximately 20 minutes.

12.

On 12 December 2015, at 2.15 a.m., medical personnel from the Judicial Police of

Veracruz performed a physical examination on Ms. Ordóñez Hernández and her

one-month-old daughter, documenting the scar from the caesarean section and recording that

they were “under arrest”. Six hours later, the girl was examined by the Office of the Attorney

General of the State of Tlaxcala. Four hours later, the mother was again physically and

psychologically assaulted by officers who threatened to harm her or disappear her daughter

if she did not confess to her involvement in the kidnapping.

13.

At 7.30 a.m. on 12 December, some 11 hours after the arrest, Ms. Ordóñez Hernández

and her daughter arrived at the Tlaxcala Attorney General’s Office. The trip from Xalapa,

normally 2 hours and 30 minutes, had taken them approximately five times longer.

14.

At around 8.30 a.m., Ms. Ordóñez Hernández and her daughter were brought before

a prosecutor with the Tlaxcala Attorney General’s Office. While Ms. Ordóñez Hernández

was at those premises, staff of the National System for the Comprehensive Development of

the Family in the State of Tlaxcala took her daughter away from her, without informing her

of where they were taking her daughter. Ms. Ordóñez Hernández was forced under threat of

harm to her daughter to sign several sheets of paper that she was not allowed to read and that

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were later revealed to be a statement in which she incriminated herself in the kidnapping.

The threats continued for the next 48 hours that Ms. Ordóñez Hernández remained in the

custody of the prosecution service.

15.

In the detention decision, the public prosecutor referred to the “appearance and

presentation of a minor” and asked the National System for the Comprehensive Development

of the Family, in the State of Tlaxcala, to arrange for her temporary placement in a foster

home. The same day, the Attorney General’s Office handed the girl over to a legal adviser

from the National System for the Comprehensive Development of the Family and placed her

in its custody, without notifying the family. One of Ms. Ordóñez Hernández’s relatives

searched for them for 14 days without receiving any information from the authorities.

16.

On 12 December 2015, Ms. Ordóñez Hernández was assigned a public defender, the

same one who was representing her co-defendants. He was present when she incriminated

herself under threat, although his signature does not appear on the document.

17.

According to the arrest report signed by the police officers who arrested Ms. Ordóñez

Hernández, the arrest stemmed from a reported kidnapping being investigated by federal

authorities and authorities from Tlaxcala, with the support of authorities from Veracruz. The

officers were on patrol in Xalapa on the night of 11 December 2015 when, after hearing cries

for help coming from a house, they entered and arrested Ms. Ordóñez Hernández and two

other persons (including Ms. Ordóñez Hernández’s then partner), claiming that the persons

had been caught in flagrante delicto. The report says that the individuals taken into custody

“were pointed out as being the persons who had been holding her” but does not describe the

terms in which that accusation was made.

18.

The officers’ version is improbable given the inconsistencies between it and the

victim’s statement. Changes can be seen in the times, the number of agents (at least five

vehicles) and in the unlikely fact of finding the victim, in a large urban area, in only two

hours. In addition, the operation was conducted with no more a point of reference for the

patrol than an assumption, based on information obtained from an investigation on a different

case file, that the victim might be in the city.

19.

On 12 December 2015, officials from the Office of the Attorney General of the State

of Tlaxcala, during a press conference at their offices, presented Ms. Ordóñez Hernández,

her then partner and another person accused of the same kidnapping to the media as members

of a criminal group, showing their faces to the cameras and broadcasting their names.

20.

On 14 December 2015, Ms. Ordóñez Hernández was assigned a new public defender,

who represented her for only two days. The same day, she appeared in court for the first time

and reserved her statement on the advice of her lawyer, who promised to return to the prison

to prepare her but never did, seriously undermining her defence.

21.

Although Ms. Ordóñez Hernández spoke with the public defender, her

communication with him was insufficient, as it was brief and the lawyer did not explain to

her the consequences of reserving her right to make a statement. She recounted the facts of

her arrest for the first time on 27 April 2017.

22.

On 14 December 2015, following the arrest of Ms. Ordóñez Hernández and the

charges brought by the prosecution service, the preliminary investigation was assigned to the

then First Criminal Court of the Judicial District of Sánchez Piedras in Tlaxcala – now the

Court of the Traditional Criminal and Juvenile Justice System (with the court of investigation

opening criminal case No. 696/2015). On 14 December 2015, Ms. Ordóñez Hernández was

taken to the Women’s Social Rehabilitation Centre in Apizaco, Tlaxcala.

23.

On 16 December 2015, Ms. Ordóñez Hernández appointed a private lawyer who was

also representing her co-defendants. The lawyer resigned on 11 January 2016, less than a

month later, without taking part in her defence.

24.

On 20 December 2015, on the basis of evidence obtained through the alleged arbitrary

detention and torture of Ms. Ordóñez Hernández, the First Criminal Court of the Judicial

District of Sánchez Piedras in Tlaxcala issued a detention order against her, launching the

proceedings against her as the likely perpetrator of an aggravated kidnapping.

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25.

On 7 January 2016, Ms. Ordóñez Hernández challenged the detention order against

her by filing a petition for amparo with the Third District Court in the State of Tlaxcala.

26.

On 7 June 2016, the amparo judge granted Ms. Ordóñez Hernández amparo by

confirming that her detention had been prolonged and ordering that her statement to the

public prosecutor and the evidence obtained during her detention be excluded.

27.

However, despite the amparo judge’s finding that the detention had been prolonged –

and, therefore, arbitrary – the investigating judge issued a new detention order on 29 June

2016, relying on the report issued by the police officers who had carried out the arrest as the

main piece of evidence, giving validity to the arrest and issuing a new detention order.

28.

On 27 October 2016, Ms. Ordóñez Hernández was assigned another public defender.

29.

On 27 April 2017, 16 months after her arrest, Ms. Ordóñez Hernández testified before

the judge about her arrest (including the prolonged detention), the torture that she had

experienced and the violations of her daughter’s rights, but the judge did not order an

investigation into the acts of torture.

30.

On 2 May 2017, Ms. Ordóñez Hernández’s lawyer asked for an investigation into the

physical and psychological abuse. The judge informed the authorities, and an investigation

was thus opened at the Tlaxcala Attorney General’s Office, but no investigative measures

were taken.

31.

On 9 June 2017, a special medical report on possible instances of torture or

ill-treatment, prepared by an expert in forensic psychology and criminology appointed by the

High Court of Justice of the State of Tlaxcala, was issued, with there being no findings of

physical injuries at that time. However, the report indicated that, according to the defendant’s

account, methods that left no external marks could have been used, and a psychological

evaluation was therefore recommended. On 10 June 2017, a psychological report based on

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

Inhuman or Degrading Treatment or Punishment (Istanbul Protocol) was issued, finding that

Ms. Ordóñez Hernández displayed symptoms stemming from her deprivation of liberty and

“the ill-treatment and threats at the time of her arrest by the Judicial Police.”

32.

On 16 November 2017, Ms. Ordóñez Hernández was appointed a new public

defender, who was present during some statements. On 17 May 2018, Ms. Ordóñez

Hernández retained private counsel, and on 7 December 2018, another lawyer was appointed

but did not accept the case. Subsequently, on 14 March and 31 May 2019, the authorities

assigned new public defenders for her.

33.

On 20 November 2019, the Criminal Court of the Judicial District of Sánchez Piedras,

in the State of Tlaxcala, convicted Ms. Ordóñez Hernández and sentenced her to 50 years’

imprisonment. In the judgment, the investigating judge again used evidence obtained from

the false arrest and torture, including the statements by Ms. Ordóñez Hernández and her

co-defendants and the report of the arresting officers. The judge did not give weight to

Ms. Ordóñez Hernández’s statement regarding her torture and prolonged detention,

considering it insufficient to disprove her involvement, noting that she had been guarding

and watching over the victim prior to her arrest. Ms. Ordóñez Hernández appealed against

the judgment.

34.

On 13 January 2020, Ms. Ordóñez Hernández’s family appointed a new private lawyer

for her, who followed up on the appeal until a decision was handed down on 3 September

2020.

35.

On 3 September 2020, the Criminal and Juvenile Justice Division upheld the

conviction in criminal case No. 19/2020, without verifying the claim of torture and without

excluding the evidence from the criminal proceedings that had been found to be unlawful. In

response, Ms. Ordóñez Hernández filed an application for direct amparo.

36.

On 9 September 2021, the First Collegiate Court of the Twenty-eighth Circuit, in

connection with the direct amparo proceedings under file No. 442/2020, ordered a partial

retrial, as essential measures had not been taken to resolve contradictions between some

witness statements, particularly those put forward by Ms. Ordóñez Hernández’s defence

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counsel. According to the source, no other violations of Ms. Ordóñez Hernández’s human

rights are recognized in the decision.

37.

In October 2022, Ms. Ordóñez Hernández was appointed a new private defence

lawyer, who is still representing her now.

38.

On 22 November 2022, the National Human Rights Commission opened a file on

alleged human rights violations at the request of Ms. Ordóñez Hernández’s defence counsel.

More than two years after the file was opened and nine years after the events, no decision has

yet been issued.

39.

On 4 June 2024 (two years and nine months after the retrial was ordered), the measures

ordered by the amparo judge were carried out, with the reading of the statement of the victim,

who declined to participate. This statement, which appears in the file, lacks a signature, name

and fingerprint and was not confirmed before the judge.

40.

On 11 November 2024, Ms. Ordóñez Hernández was notified of a second conviction

handed down by the court of investigation on 27 September 2024. The judgment recognized

violations of her human rights, including torture and prolonged detention. However, the judge

did not exclude the police report, produced while those violations were taking place, in breach

of article 20 of the Constitution. That same day, Ms. Ordóñez Hernández appealed against

the judgment.

41.

On 20 January 2025, the Criminal Division of the High Court of Justice of Tlaxcala

agreed to hear the appeal. On 26 February 2025, a hearing was held by the Criminal Division,

which has before it a draft decision on the appeal. A decision on the appeal is pending.

42.

Ms. Ordóñez Hernández had her first visit with her family, including her daughter, six

months after her arrest, when the child was seven months old. Since then, visits have been

sporadic owing to the high cost of transportation from Veracruz and the psychological impact

that seeing her mother deprived of liberty has on the child.

43.

Ms. Ordóñez Hernández did not receive special medical or gynaecological care after

being beaten and subjected to obstetric violence by the authorities during her postnatal period.

In particular, as she was breastfeeding, the sudden separation from her daughter caused

serious physical sequelae.

(iii)

Legal analysis

44.

The source claims that the arrest and detention of Ms. Ordóñez Hernández are

arbitrary and fall under categories I, III and V of the Working Group.

Category I

45.

The source argues that there was no constitutional basis for Ms. Ordóñez Hernández’s

arrest, in violation of article 9 (1) of the Covenant, since the claim that she was caught in

flagrante delicto is not credible and is based on the manipulated version of the facts, times

and participants that is reflected in the arrest report.

46.

Ms. Ordóñez Hernández was subjected to a mandatory pretrial detention scheme,

which is considered to violate human rights, particularly the rights reflected in articles 9

and 14 of the Covenant.

47.

The source alleges that the judge validated the unlawful arrest and arbitrary detention,

despite the requirement that they be subjected to strict judicial control. Although the

unlawfulness of the prolonged detention had been recognized in an amparo decision, the

lower court judge continued to support the version of the arresting officers, which was

repeated in the 2019 and 2024 convictions.

48.

Ms. Ordóñez Hernández’s detention violated her right and her daughter’s right to

family unity. The minor was unjustifiably separated from her family, and the authorities did

not ensure that she had contact with her mother or the rest of her family. No one provided

any information about her whereabouts for 14 days, until family members located her on their

own, finding her in poor health. In addition, her birth certificate, issued while in the custody

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of the National System for the Comprehensive Development of the Family, does not include

her father’s name, undermining her right to identity.

(iv)

Category III

49.

Ms. Ordóñez Hernández did not know the reasons for her arrest and was forced to

sign a confession under torture, in violation of articles 7 and 9 (2) of the Covenant.

50.

In contravention of article 9 (3) of the Covenant, Ms. Ordóñez Hernández was not

promptly brought before the competent authority; rather, she was detained in various

institutions and tortured for more than 11 hours. Subsequently, she was placed in pretrial

detention, with the judicial authority having no choice as to whether to impose that measure,

as pretrial detention was the absolute rule for the offence of which she was accused.

51.

The judicial decisions between 2015 and 2020 do not show that Ms. Ordóñez

Hernández was given a fair hearing. The authorities did not adequately consider and examine

her reports of torture, even though she had been making them since 2017.

52.

In addition, in the amparo decision of 7 June 2016 and the conviction of 27 September

2024, it was recognized that Ms. Ordóñez Hernández had been held for a prolonged period

of time, had been forced to give evidence against herself and had been a victim of torture.

However, in both cases the authorities failed to carry out a proper analysis with respect to the

exclusion of unlawful evidence, as required under domestic jurisprudence and international

standards.

53.

Ms. Ordóñez Hernández did not receive an adequate defence. In her first statement

before the public prosecutor, she had no public defender, there is no signature authenticating

the statement and her lawyer was the same one representing her co-defendants. In addition,

she was advised not to make a statement until she received instructions, which never arrived.

54.

On 12 December 2015, Ms. Ordóñez Hernández was forced to sign a statement under

torture, without the effective assistance of counsel and with a public defender who was also

representing her co-defendants, which created a potential conflict of interest.

55.

On 14 December 2015, Ms. Ordóñez Hernández was summoned to make a statement

along with her co-defendants, but she reserved her statement on the advice of her lawyer,

who was later replaced by another lawyer who did not advise her. After five changes of

lawyer, on 27 April 2017 – 16 months after her arrest – she was able to testify before a judge

about her detention and torture and the violations of her daughter’s human rights, but no

investigation was ordered.

56.

From her arrest until 2022, Ms. Ordóñez Hernández’s public defender was changed

several times without her being consulted. Her communication with them was limited to brief

formalities, with no visits or contact from the prison. According to the Inter-American Court

of Human Rights, the defence provided by the State must be effective; the appointment of a

defence counsel for the sole purpose of complying with a procedural formality would be

tantamount to not having a defence.2

57.

Ms. Ordóñez Hernández was presented to the media after her arrest and before being

brought before a judge, and the authorities emphasized that she was part of a kidnapping

gang, which violated her right to be presumed innocent.

(v)

Category V

58.

Ms. Ordóñez Hernández’s detention is arbitrary under category V in that her

deprivation of liberty constitutes discrimination based on her situation of vulnerability and

her gender.

59.

The source argues that mandatory pretrial detention results in discrimination between

defendants because it makes alternatives to detention unavailable in certain cases, such as the

kidnapping committed in Tlaxcala. The requirement that the detention take place in a prison

in Tlaxcala, far from Xalapa, Veracruz, hinders the enjoyment by Ms. Ordóñez Hernández

2 Cabrera García and Montiel Flores v. Mexico, Judgment, 26 November 2010, para. 155.

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and her daughter of their right to family life, affecting their ability to live together and develop

as a family.

60.

Ms. Ordóñez Hernández faced discrimination based on her gender and economic

vulnerability. In Mexico, persons living in poverty are at greater risk of arbitrary detention

and serious human rights violations, as in Ms. Ordóñez Hernández’s case, including

prolonged detention, torture and the lack of an effective defence.

61.

The source points out that the patterns of gender-based discrimination widely

documented and recognized by the Government of Mexico – both in terms of the differences

in the violence and torture inflicted in detention and the gender-based stereotypes applied in

criminal proceedings against women – can be seen in the case at hand.3

62.

According to the source, it is clear that the type of violence and torture to which

Ms. Ordóñez Hernández was subjected can be characterized as obstetric and gender-based

violence, given that she received multiple blows to her abdomen even though she stated that

she had had a caesarean section a month earlier and, furthermore, was given no special care

after the arrest, despite being in her postnatal period. Moreover, Ms. Ordóñez Hernández was

arrested with her one-month-old baby, who was used as the primary means of threatening

and coercing her into incriminating herself, a pattern documented in several cases of the

torture of women.4 In Ms. Ordóñez Hernández’s case, it reached an extreme because it

involved a baby who was, moreover, considered “under arrest”.

63.

The source notes the lack of a gender perspective in the criminal proceedings, as the

court did not consider Ms. Ordóñez Hernández’s economic vulnerability or the factors that

had led her to the place of her arrest. In addition, common gender stereotypes have been

confirmed in cases against women linked to offences involving organized crime, with the

women being assigned criminal roles associated with the care of the kidnapped person.

64.

The source points out that, in both convictions, Ms. Ordóñez Hernández’s

involvement was never questioned beyond her ties to the person who was her partner at the

time, thus denying her an identity of her own. The fact that she was the partner of a man

implicated in the kidnapping was automatically taken to be proof of her involvement in the

man’s activities. Likewise, a gender perspective was not applied in the consideration given

to her physical condition after a caesarean section – as it should have been examined whether

there was any real possibility that she could have taken part in the criminal acts barely a

month after giving birth – nor was the differentiated nature of both the physical and the

psychological torture, which caused her to sign a statement as a way to save her daughter’s

life, taken into account.

(b)

Response from the Government

65.

The Working Group, in accordance with its methods of work, transmitted the source’s

allegations to the Government of Mexico on 19 March 2025 and requested it to submit a

response by 19 May 2025. The Working Group received the Government’s response on

16 May 2025, within the established time limit.

66.

The Government confirms that the arrest took place on 11 December 2015, at

approximately 8.10 p.m., at a house located in the Herón Proal neighbourhood of Xalapa,

Veracruz. The arrest was made in connection with an investigation into the kidnapping of a

woman that had been reported to the authorities of the State of Tlaxcala. As the ransom calls

had come from the municipality of Xalapa, Veracruz, support was requested from the

National Guard and the Investigative Police of Tlaxcala.

67.

Several members of the Tlaxcala Investigative Police and the National Guard were

conducting search patrols in a police pickup truck when they saw three men coming out of a

house, one of whom was carrying a weapon and fled in a vehicle. As they approached, they

heard a woman who was screaming for help and saying that she had been kidnapped.

3 See https://www.gob.mx/segob/documentos/diagnostico-nacional-sobre-tortura-sexual-cometida-

contra-mujeres-privadas-de-la-libertad-en-mexico.

4 Ministry of the Interior, Diagnóstico nacional sobre tortura sexual cometida contra mujeres privadas

de libertad en México (2022), pp. 104 and 105.

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68.

Three officers entered the house while two others guarded the persons who had been

arrested outside. Inside they found a woman who said that she was the victim of the

kidnapping, Ms. Ordóñez Hernández, who was with her newborn daughter, and another

unidentified woman.

69.

Under those circumstances, Ms. Ordóñez Hernández and two other persons were

arrested in flagrante delicto. All were informed of their constitutional rights (booklet on

rights) and were immediately transferred to the Directorate General of the Judicial Police of

Veracruz and, subsequently, to Tlaxcala.

70.

Ms. Ordóñez Hernández was immediately transferred to the Judicial Police of

Veracruz and then to Tlaxcala. Under article 16 of the Constitution and article 146 of the

National Code of Criminal Procedure, arrests made in flagrante delicto do not require a

warrant, but a judge must then validate the arrest or order the person’s release.

71.

When the preliminary investigation was assigned with the suspects in custody, the

investigating body and the court were asked to validate the detention of Ms. Ordóñez

Hernández and her co-defendants, who were being held at the Regional Social Rehabilitation

Centre in Apizaco, Tlaxcala, so that their preliminary statements could be taken and their

legal status settled within the constitutional time frame.

72.

On 12 December 2015, the prosecution service requested the involvement of the

National System for the Comprehensive Development of the Family in Tlaxcala, which

arranged for the temporary placement of Ms. Ordóñez Hernández’s minor daughter in a foster

home, and placed her in its custody.

73.

The Government acknowledges that contact was not made with Ms. Ordóñez

Hernández’s extended family for the care of the child, which could be an administrative error.

However, it clarifies that this omission does not affect the lawfulness of the detention or the

criminal proceedings, which related to facts other than her family situation.

74.

On 20 December 2015, the court issued a detention order and charges were filed

against Ms. Ordóñez Hernández as the likely perpetrator of an aggravated kidnapping.

75.

On 13 June 2016, Ms. Ordóñez Hernández filed an application for amparo with the

Third District Court in Tlaxcala. The federal court held that there must be adequate grounds

for Ms. Ordóñez Hernández’s potential criminal responsibility and they must be adequately

stated. However, a new detention order was issued, with stronger grounds being stated for

the precautionary measure. The Government acknowledges that Ms. Ordóñez Hernández

filed three challenges against judicial decisions relating to the detention order and the

admission and weighing of evidence. As a result of the challenges, the initial conviction was

modified, demonstrating that there is effective access to justice in Mexico.

76.

The Government maintains that the arrest was made in flagrante delicto after someone

was heard shouting, “Help, I’ve been kidnapped”, and that Ms. Ordóñez Hernández was

identified at the scene of the crime. It also states that the 48-hour constitutional time frame

was respected, with the relevant steps having been completed in 11 hours, and that all due

process safeguards were observed in accordance with the law.

77.

Ms. Ordóñez Hernández had defence counsel throughout the proceedings and was

even able to file three appeals. She is currently at the Women’s Social Rehabilitation Centre

in Apizaco, Tlaxcala, while her case, under file No. 696/2015, moves ahead in accordance

with the law. She has not applied for parole and does not meet the requirements for prison

benefits.

(c)

Additional comments from the source

78.

The source has submitted additional comments, repeatedly stressing the complete lack

of a gender-sensitive legal analysis in the handling of Ms. Ordóñez Hernández’s case, despite

the State Party’s involvement with the Committee on the Elimination of Discrimination

against Women.

79.

The source reports that on 16 April 2025, the Criminal Division of the High Court of

Justice of Tlaxcala fully acquitted Ms. Ordóñez Hernández on appeal and ordered her

immediate release after almost 10 years of unjust deprivation of liberty.

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9

80.

The decision represented a recognition of the systematic violation of Ms. Ordóñez

Hernández’s rights and of the gender bias in her conviction. The source adds that the Criminal

Division found that the three main pieces of evidence had no weight: (a) the victim’s

statement had neither a signature nor a fingerprint; (b) the visual inspection did not establish

Ms. Ordóñez Hernández’s involvement; and (c) the State proved only that she had been

present at the scene of the crime.

81.

The source emphasizes that the acquittal incorporated a gender perspective in its

recognition of Ms. Ordóñez Hernández’s vulnerability, her post-partum medical

complications and the gender stereotypes applied by the trial court, which questioned why

she had been at the place where she was arrested, with her newborn daughter, “on a cold

December day”, judging her fitness as a “good mother”, undermining the credibility of her

testimony and improperly reinforcing the assumption of her guilt. The Division concluded

that the judge had not considered her actual circumstances or the financial need that had led

her to go to her partner when he called.

82.

The source asks the Working Group to render an opinion on the violation of

Ms. Ordóñez Hernández’s rights because, although she was acquitted and released, on

15 May 2025, the kidnapping victim filed an application for amparo against the acquittal.

Under domestic law, the acquittal will not be final until a decision is reached with respect to

the amparo, which means that there is a risk of a new arrest warrant being issued against

Ms. Ordóñez Hernández.

83.

It should be noted that the Government omitted in its response any reference to the

torture of Ms. Ordóñez Hernández and its impact on the characterization of the detention as

arbitrary.

2.

Discussion

84.

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

85.

As a preliminary matter, the Working Group notes that Ms. Ordóñez Hernández was

released on 16 April 2025. However, the Group’s methods of work contain no provisions that

preclude the consideration of a case in such circumstances.5 Indeed, the Working Group

considers it necessary to render an opinion, given the serious allegations relating to

Ms. Ordóñez Hernández’s deprivation of liberty.6 Moreover, the information from the source

regarding the application for direct amparo that was filed in response to the decision on the

acquittal and release of Ms. Ordóñez Hernández, of 15 May 2025, indicates that the decision

regarding her freedom is not yet final.

86.

The Working Group’s objective is not simply to seek a person’s release, but also to

determine the arbitrary nature of the detention, issue an opinion aimed at redress, promote

accountability, contribute to accountability and the prevention of future unlawful detentions,

and support transitional justice processes or legal reforms.

87.

Pursuant to the authority conferred on it under paragraph 17 (a) of its methods of

work, the Working Group decides to render an opinion on the present case.

88.

In determining whether Ms. Ordóñez Hernández’s deprivation of liberty is arbitrary,

the Working Group has regard to the principles established in its jurisprudence on evidentiary

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

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

upon the Government if it wishes to refute the allegations. 7 Mere assertions by the

Government that lawful procedures have been followed are not sufficient to rebut the

source’s allegations.

5 A/HRC/36/38, para. 17.

6 Opinions No. 33/2023, para. 86; and No. 55/2018, para. 59.

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

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(a)

Category I

89.

The source states that at around 8 p.m. on 11 December 2015, Ms. Ordóñez Hernández

was arrested in Xalapa, Veracruz, by police officers from Tlaxcala and the National Guard

while she was with her newborn daughter and her partner. She was forced into a vehicle,

separated from her daughter, blindfolded, tied up and beaten, including in the area of the

caesarean section incision. The agents insulted her, accused her of kidnapping and suffocated

her with a plastic bag for about 20 minutes. At 7.30 a.m., some 11 hours after the arrest,

mother and daughter arrived at the Office of the Attorney General of Tlaxcala, even though

the trip normally takes no more than two and a half hours. There, they were brought before

the prosecution service. The source adds that it was not until 14 December 2015 that

Ms. Ordóñez Hernández appeared for the first time in court.

90.

The Government, in its response, states that once Ms. Ordóñez Hernández was

arrested, she was immediately transferred to the Directorate General of the Judicial Police of

Veracruz and, subsequently, to Tlaxcala. It adds, without giving a date, that Ms. Ordóñez

Hernández was brought before a court so that her arrest could be validated, her preliminary

statement taken and her legal status settled within the constitutional time frame.

91.

The Working Group recalls that, under article 9 (3) of the Covenant, anyone arrested

or detained on a criminal charge is to be brought promptly before a judge. As the Human

Rights Committee has stated, 48 hours is ordinarily sufficient to satisfy the requirement to

bring a detainee “promptly” before a judge after the arrest, and any delay longer than 48 hours

must remain absolutely exceptional and be justified under the circumstances.8

92.

Taking into account all the information received, and given that the Government did

not, in its response, refute the source’s allegations regarding the time at which Ms. Ordóñez

Hernández was brought before a judge after her arrest, the Working Group concludes that

Ms. Ordóñez Hernández was brought before the judicial authority after the established time

limit of 48 hours. According to the source, it was not until 14 December 2015 – that is, more

than 48 hours after the arrest – that Ms. Ordóñez Hernández appeared before a judge. The

Government, for its part, did not provide any justification for the delay. The foregoing

constitutes a violation of article 9 (3) of the Covenant and principle 32 of the Body of

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

93.

With respect to the Government’s assertion that Ms. Ordóñez Hernández was

“immediately” transferred to the Directorate General of the Judicial Police of Veracruz and

subsequently brought before the Office of the Attorney General of Tlaxcala, the Working

Group recalls that, under article 9 (3) of the Covenant, anyone arrested or detained on a

criminal charge must be brought promptly before a judge or other officer authorized by law

to exercise judicial power.

94.

According to the Human Rights Committee, the right is intended to ensure that the

detention of a person in a criminal investigation or prosecution is subject to judicial control.

Furthermore, the Committee notes that it is inherent to the proper exercise of judicial power

that it be exercised by an authority which is independent, objective and impartial with respect

to the matters that it is responsible for deciding.9 Consequently, for the Working Group, the

Office of the Attorney General of Tlaxcala (prosecution service) cannot be considered an

authority exercising judicial power within the meaning of article 9 (3) of the Covenant.

95.

It is an established norm of international law that pretrial detention should be the

exception, rather than the rule, and should be ordered for the shortest possible time. 10

Article 9 (3) of the Covenant establishes that the detention of persons awaiting trial must not

be the general rule, but their release may be subject to guarantees to appear for trial or at any

other stage of the judicial proceedings. It follows that, in the interests of justice, liberty should

be recognized as a principle, and detention as an exception. Detention pending trial must be

based on an individualized determination that it is reasonable and necessary, in the light of

all the circumstances, for such purposes as to prevent flight, interference with evidence or

8 General comment No. 35 (2014), paras. 32 and 33.

9 Ibid., para. 32.

10 Opinion No. 8/2020, para. 54. See also general comment No. 35 (2014), para. 38; and A/HRC/19/57,

paras. 48–58.

A/HRC/WGAD/2025/41

GE.25-16842

11

the recurrence of the offence.11 In addition, the courts should consider alternatives and, after

an initial determination has been made that pretrial detention is necessary, there should be

periodic re-examination of whether it continues to be reasonable and necessary.12

96.

However, the Working Group notes the source’s assertion that Ms. Ordóñez

Hernández was detained under a measure of mandatory pretrial detention, which the Working

Group considers to be a form of arbitrary detention.

97.

First, 11 hours after her arrest, she was brought before the Office of the Attorney

General of the State of Tlaxcala. Subsequently, she was placed in pretrial detention, with the

judicial authority having no choice as to whether to impose that measure, as pretrial detention

was the absolute rule for the offence of which she was accused. The Government’s only

refutation of the source’s assertion was to point out that Ms. Ordóñez Hernández was arrested

in flagrante delicto.

98.

In this regard, the Working Group notes that, during its visit to Mexico from 18 to

29 September 2023, it expressed its view on the significance and impact of mandatory pretrial

detention, which has been identified as a violation of the right to personal liberty that can

potentially undermine other rights, such as the presumption of innocence, personal integrity,

judicial independence and equality before the law.13

99.

The Working Group reiterates that it has already considered mandatory pretrial

detention a human rights violation in its jurisprudence on several occasions, including in

connection with Mexico.14 In addition, the Inter-American Court of Human Rights found that

mandatory pretrial detention constitutes a violation of the obligations of Mexico and ordered

the country’s Government to bring its laws into line with international standards.15

100.

Furthermore, as a conclusion to the aforementioned visit, the Working Group

recommended that the Government of Mexico repeal the constitutional provision on

mandatory pretrial detention and bring that measure into line with international human rights

law, establishing that it can only be applied on the basis of an individualized assessment in

which the risk of the accused absconding, committing a serious repeat offence or tampering

with evidence or witnesses is demonstrated.16

101.

The Working Group stresses that pretrial detention must be based on an individualized

determination that it is reasonable and necessary to prevent flight, interference with evidence

or the recurrence of the offence, which has clearly not been undertaken in Ms. Ordóñez

Hernández’s case, constituting a violation of article 9 (3) of the Covenant. The Working

Group considers that there was also a violation of rules 57 and 58 of the United Nations Rules

for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders

(the Bangkok Rules), which indicate that the impact of pretrial detention can be particularly

severe when the detained person is a child’s sole caregiver. Even a short period in prison may

have harmful long-term consequences for the children concerned and should, if possible, be

avoided, in accordance with article 9 (3) of the Covenant. Rule 6 of the United Nations

Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and principle 39 of

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

Imprisonment also limit the use of pretrial detention.

102.

In the light of the foregoing, the Working Group reaffirms its view that the

Government has not disproved the source’s assertion regarding the lack of a legal basis for

Ms. Ordóñez Hernández’s detention and therefore declares it to be arbitrary under category I.

(b)

Category III

103.

Article 11 (2) of the Universal Declaration of Human Rights, article 14 (2) of the

Covenant and principle 36 of the Body of Principles for the Protection of All Persons under

11 Cedeño v. Bolivarian Republic of Venezuela (CCPR/C/106/D/1940/2010), para. 7.10.

12 General comment No. 35 (2014), para. 38.

13 A/HRC/57/44/Add.1, para. 25.

14 Opinion No. 32/2023.

15 García Rodríguez et al. v. Mexico, Judgment, 25 January 2023.

16 A/HRC/57/44/Add.1, para. 84.

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Any Form of Detention or Imprisonment provide that everyone charged with a criminal

offence be presumed innocent until proved guilty according to law in a fair and public trial,

for which they have received all the guarantees necessary for their defence.

104.

The Working Group notes that the presumption of innocence, which is fundamental

to the protection of human rights, imposes on the prosecution the burden of proving the

charge, guarantees that no guilt can be presumed until the charge has been proved beyond a

reasonable doubt, ensures that the accused has the benefit of the doubt and requires that

persons accused of a criminal act must be treated in accordance with this principle. Moreover,

the Working Group has determined that statements publicly condemning the accused person

before a sentence has been passed violate the presumption of innocence and constitute undue

interference that undermines the independence and impartiality of the court.17

105.

The Working Group has reviewed the source’s allegations in the light of paragraph

30 of the Human Rights Committee’s general comment No. 32 (2007). The source alleges

that, on 12 December 2015, officials from the Office of the Attorney General of the State of

Tlaxcala, during a press conference at their offices, presented Ms. Ordóñez Hernández, her

then partner and another person accused of the same kidnapping to the media as members of

a criminal group, showing their faces to the cameras and broadcasting their names.

106.

The Working Group emphasizes the importance accorded under international law to

the independence and impartiality of both investigations and prosecution proceedings, which

play an effective role in ensuring access to justice.18 All authorities have a duty to refrain

from prejudging the outcome of a trial – a duty that has been violated in this case.19

107.

In the light of the information received and considering that the Government, in its

response, did not comment on the matter, the Working Group considers that there has been a

violation of article 11 (1) of the Universal Declaration of Human Rights and article 14 (2) of

the Covenant.

108.

The Working Group notes that it is clearly established, including in the conviction of

27 September 2024, that Ms. Ordóñez Hernández was tortured so that she would make a

statement to the prosecutor from the Tlaxcala Attorney General’s Office.

109.

The Working Group stresses in its jurisprudence that when a person is tortured in

detention in order to obtain a confession, the entire chain of custody and the resulting criminal

proceedings lose legitimacy.20 The Working Group considers that a forced confession taints

the entire proceedings, regardless of whether other evidence was available to support the

verdict,21 as it violates the right to be presumed innocent under article 14 (2) of the Covenant

and the right not to be compelled to confess guilt under article 14 (3) (g) of the Covenant.22

110.

The Working Group states with absolute conviction that torture not only constitutes a

violation of article 7 of the Covenant, but also undermines the integrity of criminal

proceedings in their entirety. Furthermore, the Working Group considers to be arbitrary any

detention that is based on evidence obtained under duress,23 as appears to be the case with

regard to the detention of Ms. Ordóñez Hernández – a circumstance that, as has already been

indicated, even the judicial authorities themselves recognized.

111.

During the torture – which, moreover, included psychological torture, as she was

constantly threatened with harm to her daughter – Ms. Ordóñez Hernández agreed to sign

blank sheets of paper where she was incriminating herself.

112.

Given the gravity of this ill-treatment and torture, taking into account that

Ms. Ordóñez Hernández received multiple blows to her abdomen following her arrest even

though she stated that she had recently had a caesarean section, the Working Group is obliged

17 See opinions No. 90/2017, No. 76/2018 and No. 89/2018.

18 See opinion No. 38/2019.

19 See opinion No. 40/2019.

20 See opinion No. 86/2020.

21 Opinion No. 52/2018, para. 79 (i).

22 Opinion No. 79/2018, para. 85.

23 See opinion No. 9/2024.

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13

to refer the present case to the Special Rapporteur on torture and other cruel, inhuman or

degrading treatment or punishment.

113.

On the basis of the foregoing and in the absence of a response from the Government

on the matter, the Working Group concludes that Ms. Ordóñez Hernández’s right to due

process was violated, especially with respect to the guarantees set out in article 14 (2)

and (3) (g) of the Covenant and articles 10 and 11 of the Universal Declaration of Human

Rights.

114.

Consequently, the Working Group considers that, because of the seriousness of the

violations, the deprivation of liberty is arbitrary under category III.

(c)

Category V

115.

Ms. Ordóñez Hernández experienced discrimination and violence during her arrest:

several police officers put her into a car with her daughter, snatched her daughter away from

her, blindfolded her, tied her up and beat her, including in the area of the recent caesarean

section incision, even though she had informed the authorities of her condition. For four

hours, they continued to apply physical and psychological violence, threatening to harm or

disappear her daughter if she did not admit to her involvement in the reported kidnapping.

She did not receive medical or gynaecological care after being beaten and subjected to

obstetric violence by the authorities during her postnatal period. In addition, the separation

from her daughter while she was breastfeeding caused serious physical sequelae.

116.

The Working Group refers to its deliberation No. 12, in which it states that, in

determining whether a woman has been arbitrarily detained on discriminatory grounds,

relevant factors to consider may include whether the authorities have made statements to or

have conducted themselves towards the detained woman in a manner that indicates a

discriminatory attitude.24 The Working Group adds in its deliberation No. 12 that women face

additional and different obstacles relating to conditions of detention based on their sex or

gender. In this regard, the Working Group has noted several recurring points of concern

regarding women’s conditions of detention, such as inadequate healthcare and mental health

services, including a lack of consideration for women’s specific health needs and a failure to

provide adequate prenatal and postnatal care and treatment for women and children.25

117.

In the light of the information received and considering that the Government did not

respond to the source’s allegations regarding category V, the Working Group considers that

the physical and psychological violence to which Ms. Ordóñez Hernández was subjected

during her detention constitutes gender-based violence.26 According to the Committee on the

Elimination of Discrimination against Women, gender-based violence, a form of

discrimination that occurs in all spaces and spheres of human interaction, whether public or

private, is defined as violence which is directed against a woman because she is a woman or

that affects women disproportionately, and such violence takes multiple forms, including acts

or omissions intended or likely to cause or result in death or physical, sexual, psychological

or economic harm or suffering to women, threats of such acts, harassment, coercion and

arbitrary deprivation of liberty. 27 Furthermore, the Government did not guarantee

Ms. Ordóñez Hernández access to the specialized healthcare required by women deprived of

liberty, in violation of rule 28 of the United Nations Standard Minimum Rules for the

Treatment of Prisoners (the Nelson Mandela Rules) and rules 48 to 52 of the Bangkok Rules.

118.

The source argues that Ms. Ordóñez Hernández was tried without any gender

perspective being applied. The Working Group notes that the judgment of 16 April 2025 of

the Criminal Division of the High Court of Justice of Tlaxcala, which reversed the initial

verdict, indicates that Ms. Ordóñez Hernández was discriminated against because she is a

24 Opinion No. 1/2016, para. 37. See also A/HRC/48/55, annex, para. 5.

25 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules),

rule 28; Bangkok Rules, rule 48; A/68/340, paras. 44–50; CEDAW/C/KHM/CO/6, paras. 44 and 45;

and CAT/OP/27/1, para. 28.

26 See opinion No. 74/2021.

27 Committee on the Elimination of Discrimination against Women, general recommendations No. 19

(1992), para. 6; and No. 35 (2017), paras. 1 and 14.

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GE.25-16842

woman and was not guaranteed the right to have a gender perspective applied in the

examination of her situation and throughout the judicial proceedings. The source’s additional

comments emphasize that this judgment contained a recognition of the specific components

of Ms. Ordóñez Hernández’s situation of vulnerability, the medical complications following

childbirth and the gender stereotypes on which the trial court relied and led to her conviction.

119.

The Working Group considers it necessary to emphasize States Parties’ commitments

and obligations, reflected in their adoption of the Beijing Declaration and Platform for

Action, with respect to ensuring access to justice with a gender perspective through the

application of a lens in legal analysis that allows persons to be seen in the light of the diverse

nature of their circumstances, their needs and their autonomy, thereby overcoming

stereotypes that lead to discrimination and inequality between men and women.28

120.

The Working Group concludes that the gender-based violence to which Ms. Ordóñez

Hernández was subjected and the lack of a gender perspective in the analysis of her case

during the judicial proceedings resulted in a violation of articles 2 and 26 of the Covenant

and articles 2 and 7 of the Universal Declaration of Human Rights. The Working Group

therefore considers the detention to be arbitrary under category V.

3.

Disposition

121.

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

The deprivation of liberty of Keren Selsy Ordóñez Hernández, being in contravention

of articles 2, 3, 5, 7, 8, 9, 10 and 11 of the Universal Declaration of Human Rights and

articles 2, 7, 9, 10, 14 and 26 of the International Covenant on Civil and Political

Rights, is arbitrary and falls within categories I, III and V.

122.

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

to remedy the situation of Ms. Ordóñez Hernández 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.

123.

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

case, the appropriate remedy would be to accord Ms. Ordóñez Hernández an enforceable

right to compensation and other reparations, in accordance with international law. Such a

remedy would be especially appropriate given the interpretative declaration on article 9 (5)

of the Covenant entered by Mexico upon acceding thereto, which states that:

Under the Political Constitution of the United Mexican States and the relevant

implementing legislation, every individual enjoys the guarantees relating to penal

matters embodied therein, and consequently no person may be unlawfully arrested or

detained. However, if by reason of false accusation or complaint any individual suffers

an infringement of this basic right, he or she has, inter alia, under the provisions of the

appropriate laws, an enforceable right to just compensation.

124.

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

investigation of the circumstances surrounding the arbitrary deprivation of liberty of

Ms. Ordóñez Hernández and to take appropriate measures against those responsible for the

violation of her rights.

125.

In accordance with paragraph 33 (a) of its methods of work, the Working Group refers

the present case to the Special Rapporteur on torture and other cruel, inhuman or degrading

treatment or punishment.

126.

The Working Group requests the Government to disseminate the present opinion

through all available means and as widely as possible.

28 Opinion No. 19/2020, paras. 70–75.

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15

4.

Follow-up procedure

127.

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 compensation or other reparations have been made to Ms. Ordóñez

Hernández;

(b)

Whether an investigation has been conducted into the violation of Ms. Ordóñez

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

(c)

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;

(d)

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

128.

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.

129.

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 of any failure to take action.

130.

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.29

[Adopted on 25 August 2025]

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