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.
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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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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.