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.25-15857 (E) 071125 071125
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. 42/2025 concerning Cipriano García Amaya (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 10 December 2024 the Working Group
transmitted to the Government of Mexico a communication concerning Cipriano García
Amaya. The Government replied to the communication on 11 March 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/2025/42
General Assembly
Distr.: General
21 October 2025
English
Original: Spanish
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1.
Submissions
(a)
Communication from the source
4.
Cipriano García Amaya is a national of Mexico, born on 14 March 1979. He is a driver
working both for app-based platforms and in a private capacity.
(i)
Arrest, detention and trial proceedings
5.
On 30 March 2021, at approximately 9 p.m., Mr. García Amaya was driving his own
vehicle (a white 2018 Toyota Yaris, registration number: RUN369A) through the Azteca
neighbourhood in the municipality of Guadalupe, Nuevo León, on his way to take a passenger
home, when a black sport-utility vehicle approached and began to drive alongside him.
Mr. García Amaya continued on his way and had travelled approximately one block when a
black Dodge carrying two individuals caught up with him on the other side and a utility
vehicle suddenly appeared and parked in front of him. Mr. García Amaya had to stop, as his
route was blocked.
6.
The source reports that several individuals – probably more than six – came out of the
vehicles carrying handguns. They approached Mr. García Amaya and ordered him to lower
the window and give them his name, in response to which Mr. García Amaya told them that
his name was Cipriano García. One of the individuals said to him: “We’ve been looking for
you” and “You’re screwed. You know why we’ve been looking for you.” Mr. García Amaya
was brusquely pulled out of his vehicle along with his passenger and, without knowing what
was really happening, was stripped of his wallet, mobile phone and car keys. The source adds
that, at that point, the individuals had not identified themselves and Mr. García Amaya
thought that he was being robbed.
7.
Mr. García Amaya and his passenger were handcuffed. Mr. García Amaya was put in
the back of the sport-utility vehicle, with a man on either side of him. His passenger was put
in another car. During the journey, he was asked about a girl and why he had wanted to take
her and why she had been abducted. Mr. García Amaya replied that he had simply provided
his driving services to the girl’s father by picking her up from her home in the municipality
of Pesquería, since he had previously been a driver for Uber. Mr. García Amaya also
mentioned that the mobile number belonging to the girl’s father was stored on the mobile
phone that had been taken from him, that the father had told him that the girl was living in
very bad conditions and that her mother was not taking care of her, and that when they went
to pick her up, the girl was effectively living on the streets, was poorly dressed and smelt bad.
8.
In response to these explanations from Mr. García Amaya, the men who were sitting
next to him in the vehicle began to repeatedly slap the back of his neck and his ears,
demanding that he tell the truth. The source adds that, when they arrived at the car park of
the state investigation agency, they left him alone in the vehicle before getting back in,
putting a bag over his head and brutally beating him.
9.
Mr. García Amaya felt like he was suffocating and, in desperation, broke the
handcuffs. He then heard someone order other “hooks” to be put on him. Several plastic bags
were subsequently placed over his head, which caused Mr. García Amaya to feel like he was
fainting. He could only hear individuals shouting at him, telling him to confess or they would
“screw him over”. The source states that Mr. García Amaya became very ill and the men
asked him what was wrong. Mr. García Amaya told them that he suffered from type 1
diabetes and that the insulin he needed to inject into his stomach was in his car. The men sent
a girl to the car. When she returned, she said that she had not found anything. They instructed
the girl to bring an apple, a banana, some water and some Coca-Cola, saying that Mr. García
Amaya needed to be well in order to answer some questions.
10.
Mr. García Amaya was then taken out of the vehicle, pushed against the wall and left
standing for about three hours. He was in that position when between 8 and 10 investigative
police officers approached him and angrily asked him “about the girl”. They began to hit him
on his back, knees and legs while he remained standing. They also threatened him by telling
him that if he did not say what they wanted, they would look for his relatives and charge them
with a different crime. The source adds that the investigative police officers instructed
Mr. García Amaya to tell them that he wanted to use the girl for the purposes of trafficking
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in persons, sexual abuse or organ donation. The source mentions that Mr. García Amaya did
not recognize the individuals who brutally beat him and knows only that they worked for the
state investigation agency.
11.
Mr. García Amaya was then taken to the university hospital for a medical examination.
However, he was never examined and was simply approached by a person who said: “Here
is the report, I did it like you asked me to.” From there he was taken to a location near the
Parque España and put in a cell with his handcuffs tightly fastened. Mr. García Amaya
remained there until about 5 a.m. and was then returned to the premises of the state
investigation agency, where his statement was taken. He was again placed against the wall
and remained standing there for many hours while he continued to be interrogated about “the
girl”. He and his passenger were subsequently taken to a cell. His shoelaces were removed,
and the few belongings he had left were taken away from him.
12.
On 1 April 2021, at approximately 5 p.m., staff from the Nuevo León State Human
Rights Commission went to the state investigation agency, where Mr. García Amaya was
being held, to interview him and take statements and photographs, since a relative of
Mr. García Amaya had filed a complaint against the agency upon seeing the results of the
beatings all over his body. According to the source, it was through the staff of the Nuevo
León State Human Rights Commission that Mr. García Amaya learned that he was being
held for the crime of small-scale drug dealing and not for anything related to the
aforementioned girl. The staff of the Nuevo León State Human Rights Commission examined
him and took note of the injuries he had at that time: abrasions on the back of the lower
section and front of both forearms, on the front of the middle section of his right leg and the
inner back of the middle section of his left leg. During the otoscopic examination, Mr. García
Amaya was found to have a traumatic oedema of the right eardrum, which caused hearing
loss in the right ear, a severe headache and loss of feeling in both hands. The injuries were
found to have been caused by blunt trauma and the use of handcuffs, and it was determined
that they would take more than 15 days to heal. Photographs were taken of Mr. García Amaya,
and his case was registered as file No. CEDH-2021/294/02. It should be noted that his
passenger was also tortured and witnessed everything that was done to Mr. García Amaya.
According to the source, the State Human Rights Commission realized that Mr. García
Amaya had not been interrogated and tortured by the investigative police officers in relation
to his possession of drugs, but rather, in relation to the kidnapping of a minor.
13.
On 1 April 2021, Mr. García Amaya and his passenger were released after 10 p.m.
However, a large number of investigative police officers approached Mr. García Amaya near
a cemetery behind the state investigation agency, before handcuffing him and telling him that
they had an arrest warrant against him for the crime of kidnapping a girl. His passenger was
allowed to leave. Mr. García Amaya was taken back to the premises of the state investigation
agency, where he was subjected to another, less violent, beating and taunted by being told
that “his whole life was well and truly screwed”.
14.
The source states that Mr. García Amaya’s family did not know where he was from
the moment his deprivation of liberty began at 7.30 p.m. on 30 March 2021. The public
prosecutor’s office appointed a public defender for Mr. García Amaya while his family
remained unaware of his whereabouts. The family learned where he was on the afternoon of
31 March 2021, the day after his arrest, and visited him at the place of detention, where they
noticed the marks he had sustained from the severe beatings. The family called a lawyer, who
was denied any information and was not permitted to have contact with the public prosecutor.
The family thus filed a complaint with the State Human Rights Commission.
15.
According to the source, Mr. García Amaya was arrested without a warrant and as
part of an investigation into kidnapping and sexual abuse. Mr. García Amaya was not assisted
by a defence lawyer of his choosing when being interrogated by officers from the Nuevo
León investigative police force and the office of the special prosecutor for strategic
operations. While Mr. García Amaya was assigned a public defender in order to ensure
compliance with the law, the defender was not present at any of the interrogations.
16.
The source highlights that, in the case involving the alleged crime of small-scale drug
dealing (simple possession), Mr. García Amaya was released from detention and that, at
10.40 p.m. on 1 April 2021, outside the same facilities of the state investigation agency, an
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arrest warrant was executed against him for the crimes of aggravated kidnapping and sexual
abuse of a minor. Mr. García Amaya continued to be represented by a public defender at the
time the arraignment hearing was held on 2 April at 6.54 p.m. The source alleges that the
lawyer held an online meeting with Mr. García Amaya five minutes before the hearing and
informed him that he was going to be his lawyer, without giving him any advice.
17.
According to the source, no hearing was held to review Mr. García Amaya’s detention.
He was detained for more than 48 hours and had no access to a lawyer of his choosing, since
the public prosecutor’s office prevented a private lawyer from intervening in the case. The
source affirms that it was not until 8 April 2021 that Mr. García Amaya was able to have a
private lawyer.
18.
According to the source, at the arraignment hearing on 2 April 2021, a decision was
made to place Mr. García Amaya in mandatory pretrial detention. The source adds that the
pretrial detention measure was not renewed and that no legal challenge was brought against
it.
19.
The source submits that, at the trial before the court of first instance, the judge
sentenced Mr. García Amaya to 50 years’ imprisonment for the crimes of kidnapping and
sexual violence against a minor. On 18 July 2022, Mr. García Amaya’s lawyers filed an
appeal against that decision, which was assigned to Collegiate Chamber No. 1 of the High
Court of Justice of the State of Nuevo León as appeal No. 87/2022.
20.
Mr. García Amaya’s lawyers appealed the sentence handed down by the judge at first
instance. They did not refer, however, to the arbitrary and illegal detention of Mr. García
Amaya. On 14 February 2023, Mr. García Amaya decided to dismiss his lawyers and appoint
a new lawyer to defend him. The appellate court recognized her as his lawyer on 28 February
2023. On 7 August 2023, the lawyer informed that court of Mr. García Amaya’s arbitrary
and illegal detention. However, the judges never examined or issued any pronouncement on
the matter and, on 16 November 2023, the Chamber confirmed the conviction handed down
to Mr. García Amaya by the judge at first instance.
21.
Mr. García Amaya was present during the trial, either physically in the room or
virtually. Mr. García Amaya was able to meet with his defence lawyer, who was able to cross-
examine witnesses and put forward the arguments she believed to be relevant.
22.
The source highlights that, with regard to the complaint that Mr. García Amaya’s
family filed with the Nuevo León State Human Rights Commission on 1 April 2021 in
response to the violation of his human rights, the Commission issued a favourable opinion
through recommendation No. 3/2024 and blamed the Office of the Attorney General of the
State of Nuevo León for the violation of Mr. García Amaya’s human rights to liberty and
security of person that had been committed as a result of his illegal and arbitrary detention.
23.
Mr. García Amaya is currently being held in Apodaca social rehabilitation centre
No. 2 in the State of Nuevo León.
24.
With regard to the conditions of detention, the source mentions that, at the beginning
of Mr. García Amaya’s illegal and arbitrary detention, he was held in the cells of the Nuevo
León state investigation agency. There, Mr. García Amaya was severely beaten and tortured
in order to force him to confess to the kidnapping of a minor. Mr. García Amaya did not
make any statements despite being badly beaten. While being held in the cells of the state
investigation agency, Mr. García Amaya was given no diabetes medication or medical
treatment for the beating he had suffered. The state authorities did not take any steps to
guarantee him access to treatment, which it should have done in order to honour its
obligations and uphold the right of the detainee to enjoy his human rights, specifically his
right to access to healthcare, in particular since his reliance on the goodwill of officers to
meet his needs meant that he was in a vulnerable situation. According to the source,
Mr. García Amaya did not receive appropriate medical care until 26 April 2021.
25.
The source submits that Mr. García Amaya’s family reported that death threats had
been made against a child in the family. The child received such threats while gaming through
the Roblox application. The person who threatened her used Mr. García Amaya’s own
gaming account, which he had opened and used to play with the child prior to his arrest and
which was accessible with a password that only he and his family knew. It thus follows that
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the person who made the threats used Mr. García Amaya’s mobile phone, which is in the
possession of the public prosecutor’s office. The complaint was made to the Office of the
Attorney General of the State of Nuevo León and was registered as file No. FGJNL-
150953/2023.
26.
The source submits that, on 2 September 2024, the family filed another complaint
before the state Attorney General’s office, which was registered as file No. FGJNL-
109366/2024. The complaint concerned threats that had been made to the family directly
when the perpetrator entered the family’s home and posted a death threat on a computer. The
source affirms that, in view of that situation, the State Human Rights Commission requested
the public prosecutor’s office to take security measures in order to prevent the violation of
the human rights of Mr. García Amaya’s family members and his defence lawyer.
Furthermore, the Office of the United Nations High Commissioner for Human Rights in
Mexico sent a communiqué to the Office of the Attorney General requesting it to guarantee
the rights to security and a dignified life of Mr. García Amaya’s family members.
27.
The source also reports that Mr. García Amaya received various threats after being
detained in the Apodaca prison cells. These threats ceased only when the Nuevo León State
Human Rights Commission and the Office of the United Nations High Commissioner for
Human Rights in Mexico intervened to protect him.
28.
From the outset of his detention in Apodaca prison in the State of Nuevo León,
Mr. García Amaya was allowed to have contact with his family by telephone and in person
on visiting days. Family visits take place one day per week.
(ii)
Legal analysis
29.
The restriction of personal liberty is an exceptional measure that is applicable only on
the grounds outlined in article 16 of the Constitution, namely, when there is an arrest warrant,
a situation of flagrante delicto or a case that is proven by the public prosecution service to be
an emergency. As none of these grounds apply in this case, the detention is illegal and
arbitrary pursuant to article 16 of the Constitution, the jurisprudence of the Supreme Court
and the relevant international treaties (art. 9 (1) of the Covenant).
30.
The source argues that, in the present case, there is no situation of flagrante delicto or
quasi-flagrante delicto. In addition, it claims that there are inconsistencies in the documentary
evidence provided by the public prosecutor’s office. Even if the documentary evidence
submitted by the public prosecutor’s office did not contain such inconsistencies, its content
does not reliably prove beyond any doubt that the arrest was made in flagrante delicto. The
situation of flagrante delicto claimed by the authority cannot be established in this case
because the arrest was not made during or immediately after the commission of the alleged
crime. Instead, as he was being arrested, Mr. García Amaya was constantly interrogated about
the kidnapping of a girl, the investigation into which was being conducted by the public
prosecution service and in relation to which no warrant had been issued to order Mr. García
Amaya’s arrest.
31.
According to state officials’ own account of the facts, the arrest was not made at the
time the criminal offence was said to have been detected or immediately afterwards. The
source alleges that it had been confirmed that Mr. García Amaya had been detained as part
of the investigation into a different criminal act, which was being conducted by the public
prosecutor’s office at that same time.
32.
The source affirms that the due process judge did not hold a hearing to determine
whether Mr. García Amaya’s detention was legal or illegal.
33.
The source adds that the total or partial non-observance of the international norms
relating to the right to a fair trial is of such gravity as to give the deprivation of liberty an
arbitrary character. The source mentions the following irregularities in the judicial
proceedings initiated against Mr. García Amaya:
(a)
The acts of torture committed against Mr. García Amaya to make him confess
to kidnapping a minor, which were inflicted upon him while he was being held for a crime
against health;
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(b)
The illegal and arbitrary detention of Mr. García Amaya, which was witnessed
by an individual who was mentioned by the Nuevo León State Human Rights Commission
in its written recommendation. This illegal detention has been confirmed by a witness
statement, the records of the Office of the Attorney General of the State of Nuevo León and
the staff of the National Human Rights Commission;
(c)
The alert issued through the AMBER alert system, which gave a description
of a man who is overweight and has hair that is dyed blonde at the back, a beard and a dark
complexion, meaning that he looks very different to Mr. García Amaya, who, according to
the source, is thin, with short black hair, no beard and a fair complexion. In the statement she
gave to a psychologist, the girl mentioned that the description of her aggressor’s physical
characteristics in the AMBER alert was wrong. The source alleges that the girl had been
cleverly manipulated so that she recounted the desired version of events. The girl spoke about
the prosecutor as someone who came to her house and gave her toys and food so that she
would testify against Mr. García Amaya.
34.
The source states that, at the arraignment hearing on 2 April 2021, the due process
judge of the State of Nuevo León decided that Mr. García Amaya should be held in mandatory
pretrial detention as a precautionary measure, as provided for in article 155, section XIV, of
the National Code of Criminal Procedure. The judge did so automatically, without examining
whether the precautionary measure was necessary based on the specific circumstances of the
case. The fact that the judicial authority did not have the opportunity to determine the purpose,
suitability, necessity or proportionality of the application of the precautionary measure in this
case has resulted in a violation of the rights to personal liberty recognized in the American
Convention on Human Rights, which has been ratified by Mexico. The rights violated include
the right to not be arbitrarily deprived of liberty (art. 7 (3)), the right to judicial oversight of
the deprivation of liberty (art. 7 (5)) and the right to be presumed innocent (art. 8 (2)). The
principle of equality and non-discrimination has also been violated, since individuals have
been treated differently based on the crimes with which they have been charged (art. 24). The
Inter-American Court of Human Rights2 has thus declared mandatory pretrial detention to be
inconsistent with the aforementioned Convention, taking into consideration the need to avoid
undermining the jurisprudence of the Supreme Court and its hierarchy in Mexico, and
article 27 of the Vienna Convention on the Law of Treaties, which has also been ratified by
Mexico.
35.
The source alleges that Mr. García Amaya was held in Apodaca prison under this
arbitrary precautionary measure until 7 July 2022, when he was convicted of the crime of
aggravated kidnapping and sentenced to 50 years’ imprisonment and a fine of 8,000 day-fine
units.
(b)
Response from the Government
36.
The Working Group, in accordance with its methods of work, transmitted the source’s
allegations to the Government of Mexico on 6 June 2023 and requested it to submit a response
by 10 December 2024. The Government requested an extension of the time limit for its
response, which was granted. The Working Group received the Government’s response on
11 March 2025, within the established time limit.
37.
The Government argues that the detention was not arbitrary and that all procedures
were in conformity with the national and international legal framework. It therefore requests
that the Working Group determine that there is no arbitrariness and is also of the view that
the petition should be declared inadmissible owing to the failure to exhaust domestic
remedies.
38.
One of the fundamental arguments made by Mexico is that the detention was not
arbitrary because it does not meet any of the five criteria used by the Working Group to
determine the arbitrariness of a detention in accordance with its methods of work. The
Government maintains that Mr. García Amaya’s request for the Working Group to intervene
2 Tzompaxtle Tecpile et al. v. Mexico, judgment of 7 November 2022; and García Rodríguez et al. v.
Mexico, judgment of 25 January 2023.
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is inadmissible owing to the failure to exhaust domestic legal remedies such as direct amparo,
judicial review and the filing of complaints.
39.
In its response, the Government reviews the action of the judiciary in the light of the
Working Group’s requirements, thereby demonstrating that the detention does not fall under
the categories identified by the Working Group, as outlined below.
40.
With regard to category I, the Government argues that the detention was conducted in
strict compliance with the applicable legislation, namely article 21 of the Constitution, which
grants the public prosecution service the power to investigate crimes, and article 9 of the
Covenant, which prohibits arbitrary detention and establishes that any deprivation of liberty
must be in accordance with the law.
41.
The Government reports that, on 31 March 2021, officers from the state investigation
agency tracked down a vehicle with the registration number RNV369A, which was the
subject of a seizure warrant owing to its possible use in a kidnapping. When they stopped the
vehicle, they found inside it a substance that resembled marijuana.
42.
Mr. García Amaya and another occupant were arrested in flagrante delicto for crimes
against health (small-scale drug dealing), in accordance with articles 146 and 147 of the
National Code of Criminal Procedure and in connection with articles 473 and 474 of the
General Health Act. Both individuals were read their rights and brought before the public
prosecution service, in compliance with articles 19 and 20 of the Constitution (relating to due
process). Records of the medical examinations conducted by the forensic medical service,
which confirmed that Mr. García Amaya had no visible injuries, were added to the file.
43.
Since the amount of the aforementioned substance possessed by Mr. García Amaya
did not exceed the weight permitted for personal use (art. 479 of the General Health Act),
Mr. García Amaya was released pursuant to article 140 of the National Code of Criminal
Procedure.
44.
However, also on 31 March 2021, a due process judge issued a new arrest warrant
through official document No. 22663/2021, in which Mr. García Amaya was accused of the
crime of aggravated kidnapping pursuant to the Act for the Prevention and Punishment of
Kidnapping Offences (art. 9, sect. I (a) and (c) and art. 10, sects. I (e) and II (d)), the Federal
Criminal Code (art. 13, sect. II) and the Criminal Code of the State of Nuevo León (arts. 259
and 260 bis, sects. V and VI).
45.
Mr. García Amaya was arrested on 2 April 2021, leading to the opening of case file
No. 5415/2021. Mr. García Amaya’s detention was therefore legal, proportionate and
consistent with the law.
46.
The Government clarifies that Mr. García Amaya is not a human rights defender and
has not been detained on discriminatory grounds or because he is a refugee, asylum-seeker
or migrant with irregular status. His detention does not, therefore, fall under categories II, IV
or V of the Working Group.
47.
The Government claims that the detention is not related to the exercise of fundamental
rights, but to the commission of specific criminal acts.
48.
On 19 April 2021, Mr. García Amaya was charged with aggravated kidnapping and
sexual abuse. Certain rights are waived in cases in which an individual is being prosecuted
for serious crimes.
49.
Mr. García Amaya was directly recognized by the victim and two witnesses: the
victim’s grandfather and sister. Moreover, his vehicle matched the one used in the kidnapping.
50.
The Government affirms that due process was fully respected and Mr. García
Amaya’s right to a fair trial was guaranteed. In addition, the defendant submitted his response
to the charges on 29 November 2021. Throughout the proceedings, all the evidence offered
by the defence and the public prosecutor’s office at the interim hearing was accepted.
51.
On 14 July 2022, Mr. García Amaya was sentenced to 50 years’ imprisonment and a
fine of 716,960 pesos for aggravated kidnapping. The judge acquitted him of the charge of
sexual abuse. The decision was legally notified on 29 July 2022 and was appealed by his
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defence lawyer. It was upheld by Collegiate Criminal Chamber No.1 of the High Court of
Justice of the State of Nuevo León on 16 November 2023.
52.
In view of the foregoing, it is concluded that the Government upheld the right to a fair
trial, with a defence lawyer, evidence and appeal proceedings, and it is stressed that the
detention was based solely on criminal evidence and not on personal characteristics.
53.
The Government dismissed Mr. García Amaya’s allegations, except for the allegation
relating to the torture and beatings that he claims to have suffered even though the initial
medical report did not indicate that that had been the case. Nonetheless, the Government gave
full attention to that claim, and, in recognition of its seriousness, the evidence was forwarded
to the Special Unit for the Investigation of the Offence of Torture and recorded in
investigation file No. 508/2023, which was added to complaint No. 97551/202-CDV to form
part of file No. FGJNL-012274/2024, which was established in response to the issuance of
recommendation No. 3/2024 by the Nuevo León State Human Rights Commission. The
aforementioned investigation remains in its initial stages, which means that it is yet to be
determined whether the staff of the state investigation agency are responsible for the acts of
torture. The Government states that there are three more legal bodies to which Mr. García
Amaya could appeal should he disagree with any of the decisions made by the judiciary with
regard to his claims.
54.
With regard to the allegation of incommunicado detention and the lack of a lawyer,
the Government argues that there is no record of Mr. García Amaya being denied a lawyer
or held incommunicado. Moreover, although Mr. García Amaya alleges that he went for more
than 48 hours without having access to the lawyer of his choosing, he did not pursue any
avenues of defence, such as indirect amparo, to prove that situation, which means that his
allegation cannot be considered to be a proven fact.
55.
The Government informs the Working Group that, on 16 November 2023, it received
reports that threats had been made against the defendant’s daughter, lawyer, wife and mother-
in-law. Such reports, which were also sent to the Nuevo León State Human Rights
Commission, led to the opening of file No. FGJNL-150953/2023. Protection measures,
namely police surveillance, were ordered in accordance with article 137, sections VI, VII and
VIII of the National Code of Criminal Procedure. A second complaint, dated 2 September
2024, resulted in the implementation of new measures, although the family rejected the offer
of temporary shelter. The investigation has since been temporarily suspended owing to a lack
of evidence (art. 254 of the National Code of Criminal Procedure) but might be reopened if
new evidence comes to light.
(c)
Additional comments from the source
56.
The Working Group transmitted the Government’s response to the source on
11 March 2025 and requested any final comments and observations, which were received on
18 March 2025.
57.
In its additional observations, the source states that, unlike other treaty-based bodies
or international or regional courts, the Working Group does not require that local remedies
be exhausted in order for a submission to be admissible.
58.
The source maintains that, after Mr. García Amaya was arbitrarily deprived of his
liberty, the public prosecutor’s office fabricated the drug-related charge in order to keep him
and his passenger in detention. During that time, more evidence against Mr. García Amaya
was maliciously fabricated, on this occasion relating to the crime of aggravated kidnapping.
After Mr. García Amaya had been released in connection to the first offence (possession of
substances), an arrest warrant was executed against him for aggravated kidnapping and
sexual abuse. It is on these grounds that Mr. García Amaya has been deprived of his liberty
for more than three years.
59.
The source adds that, on 1 April 2021, the individual who was detained with Mr.
García Amaya filed a complaint with the Nuevo León State Human Rights Commission,
leading to the opening of file No. CEDH-2021/295/02. Like Mr. García Amaya, he reports
that they were violently arrested and tortured to force them to reveal “what they did to the
girl” and states that they were not detained for any drug-related crimes. Accordingly, there is
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evidence in file No. CEDH-2021/294/02 that proves that Mr. García Amaya was arrested not,
as the Nuevo León public prosecutor’s office has made out, for committing a crime against
health, but for kidnapping a minor.
60.
The source mentions that, according to file No. CEDH-2021/294/02, on 1 April 2021,
human rights personnel went to the state investigation agency and recorded the injuries
sustained by Mr. García Amaya before the arrest warrant relating to the aggravated
kidnapping was executed. These injuries, which were probably caused by blunt trauma,
consisted of abrasions on both forearms and legs and a traumatic oedema of the right eardrum
that was causing hearing loss.
61.
The source adds that officers from the investigative police force and the Office of the
Special Prosecutor and the Office of the Prosecutor for Drug Dealing refused to bring
Mr. García Amaya immediately before the competent authority at the outset of his detention.
2.
Discussion
62.
The Working Group thanks the source and the Government for their submissions.
63.
As a preliminary matter, and with regard to the Government’s request that the case of
Mr. García Amaya be declared inadmissible owing to the failure to exhaust domestic legal
procedures, the Working Group informs the Government that it is competent to hear a case
even if all domestic remedies or the legal and constitutional procedures of the country in
question – in this case, Mexico – have not been exhausted. This competency is based on the
nature, mandate and established practices of the Working Group.
64.
Unlike other international bodies, such as the Human Rights Committee, which
monitors compliance with the International Covenant on Civil and Political Rights, the
Working Group does not require domestic remedies to have been exhausted prior to the filing
of a complaint in order to declare a communication admissible and issue an opinion. In view
of this capacity provided for in its working methods,3 the Working Group will proceed to
examine the case of Mr. García Amaya.
65.
In determining whether Mr. García Amaya’s deprivation of liberty is arbitrary, the
Working Group has regard to the principles established in its jurisprudence to deal with
evidentiary issues. If the source has established a prima facie case for breach of international
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.4 Mere assertions by the
Government that lawful procedures have been followed are not sufficient to rebut the
source’s allegations.5
(a)
Category I
66.
The Working Group received information from the source regarding the case of
Mr. García Amaya, who was arrested at 7.30 p.m. on 30 March 2021 by unidentified armed
officers, who violently restrained him, beat him and held him incommunicado. He was
neither shown an arrest warrant nor informed of his rights. The Government alleges that he
was arrested in flagrante delicto for small-scale drug dealing, but, since the weight of the
substance did not exceed that allowed for personal use, he was released in accordance with
article 140 of the National Code of Criminal Procedure.
67.
Mr. García Amaya was subsequently rearrested for aggravated kidnapping and sexual
abuse, and an arrest warrant was issued on 31 March 2021. The source alleges that Mr. García
Amaya was not informed of his rights.
68.
The Working Group has previously stated that in order for a deprivation of liberty to
have a legal basis, it is not sufficient that there is a law that may authorize the arrest. The
authorities must invoke that legal basis and apply it to the circumstances of the case.6 This is
3 A/HRC/36/38.
4 A/HRC/19/57, para. 68.
5 Ibid.
6 In cases of arrests made in flagrante delicto, the opportunity to obtain a warrant will typically not be
available.
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typically7 done through an arrest warrant or a court order (or equivalent document).8 The
Working Group also recalls that, as stated by the Human Rights Committee in its general
comment No. 35 (2014), detention must be justified as reasonable, necessary and
proportionate in the light of the circumstances and must be reassessed as it extends in time.
69.
The Working Group also reiterates that anyone who is arrested must be informed, at
the time of arrest, of the reasons for the arrest and the judicial avenues available for
challenging the lawfulness of the deprivation of liberty.9 The reasons for the arrest must
include not only the legal basis for the detention, but also factual specifics to indicate the
substance of the complaint and the wrongful act committed. These reasons are understood as
being the official basis for the arrest, not the subjective motives of the arresting officer.10
Likewise, detained persons have the right to be promptly notified of the charges against them.
70.
The Working Group notes that the initial detention was illegal and arbitrary since it
was not in conformity with the principle of legality established in article 16 of the Mexican
Constitution, which requires a judicial order to be issued beforehand, except in cases of
flagrante delicto. The Government also failed to prove a situation of flagrante delicto with
respect to the crime of kidnapping. In addition, the Working Group reiterates that violent
arrest, without any safeguards, directly violates the principle of legality and constitutes a
breach of article 9 (1) of the Covenant and articles 3 and 9 of the Universal Declaration of
Human Rights.
71.
The Working Group recalls that this observation is outlined in the report on its visit
to Mexico, during which it learned that a significant number of detainees were subjected to
serious and excessive violence during their arrest. The report also refers to the misuse of the
concept of flagrante delicto.11
72.
The Working Group recalls that using an arrest for a minor offence as a pretext to
investigate another serious crime without a judicial order is an abusive procedural step that
renders the right to liberty devoid of significance. Accordingly, arresting an individual for
one crime and then charging him or her with another, without a legal basis, is a form of covert
detention that is in violation of article 9 (1) of the Covenant.
73.
The source affirms that, at the arraignment hearing on 2 April 2021, Mr. García
Amaya was placed in mandatory pretrial detention. The source adds that the pretrial detention
measure was not renewed and that no legal challenge was brought against it. The Government
has not refuted this claim by the source.
74.
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. 12
Article 9 (3) of the Covenant establishes that it should not be the general rule that persons
awaiting trial should be detained, 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 the recurrence of the offence. 13 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.14
75.
The Working Group notes that, during its visit to Mexico in 2023, it expressed its
view on the significance and impact of mandatory pretrial detention, which has been
7 Opinions No. 30/2018, para. 39; No. 3/2018, para. 43; and No. 88/2017, para. 27.
8 Opinions No. 18/2023, para. 93; and No. 30/2017, paras. 58 and 59.
9 A/HRC/30/37.
10 Ibid.
11 A/HRC/57/44/Add.1.
12 Opinion No. 8/2020, para. 54. See also general comment No. 35 (2014), para. 38; and A/HRC/19/57,
paras. 48–58.
13 Cedeño v. Bolivarian Republic of Venezuela (CCPR/C/106/D/1940/2010), para. 7.10.
14 General comment No. 35 (2014), para. 38.
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11
identified as a violation of the right to personal liberty and can potentially undermine other
rights, such as the presumption of innocence, personal integrity, judicial independence and
equality before the law.15
76.
The Working Group has already issued opinions in which it establishes that
mandatory pretrial detention constitutes a violation of human rights. Several of those
opinions concern Mexico.16 In addition, the Inter-American Court of Human Rights declared
that mandatory preventive detention constitutes a violation of the obligations of Mexico and
ordered the country to amend its laws in order to comply with international standards.17
77.
As a conclusion to the aforementioned visit, the Working Group also recommended
that the Government of Mexico should repeal the provision on mandatory pretrial detention
from the Constitution and bring the use of that judicial measure into line with international
human rights law, establishing that it can only be applied based on an individualized
assessment in which the risk of the accused absconding, committing a serious repeat offence
or tampering with evidence or witnesses is demonstrated.18
78.
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 the case of
Mr. García Amaya.
79.
In this case, the placement of Mr. García Amaya in mandatory pretrial detention
constitutes a violation of article 9 (3) of the Covenant, which establishes that pretrial
detention should be the exception rather than the rule and should be ordered for the shortest
possible time.
80.
The circumstances described clearly constitute an arbitrary deprivation of liberty
under category I of the working methods of the Working Group.
(b)
Category III
81.
With respect to category III, the Working Group notes that, in the case under
consideration, the fundamental rules of due process have not been observed, as is argued in
the following paragraphs.
82.
The source has informed the Working Group that Mr. García Amaya was beaten,
suffocated with plastic bags, made to stand for hours and denied access to insulin, despite
being known to have diabetes. The Nuevo León State Human Rights Commission confirmed
that he had suffered injuries that would take more than 15 days to heal (file no. CEDH-
2021/294/02). Furthermore, the Commission – with which Mr. García Amaya’s family filed
a complaint – holds the public prosecutor’s office responsible for the illegal and arbitrary
detention. The Government, for its part, initially denied that the crime of torture had been
committed. It later acknowledged that an investigation into torture had been opened and is
currently ongoing (file No. 149988/2023-CDV).
83.
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.19 The Working Group considers that a forced confession taints
the entire proceedings, regardless of whether other evidence was available to support the
verdict,20 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).21 The Working
Group recalls that, in its report on its visit to Mexico, it stated that beatings and torture are
often inflicted to extract confessions. Detained persons are sometimes forced to give
information about other suspects or possible evidence, and ill-treatment is also used as a form
15 A/HRC/57/44/Add.1, para. 25.
16 Opinion No. 32/2023.
17 García Rodríguez et al. v. Mexico, judgment of 25 January 2023.
18 A/HRC/57/44/Add.1, para. 84.
19 Opinion No. 86/2020.
20 Opinion No. 52/2018, para. 79 (i).
21 Opinion No. 79/2018, para. 85.
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of humiliation and punishment. Accordingly, the Working Group notes that the use of
evidence obtained by torture in any subsequent trial would render the proceedings unfair and
violate international human rights law.22
84.
The Working Group notes with total conviction that the use of torture is not only in
violation of article 7 of the Covenant and article 15 of the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, but it also taints the criminal
proceedings as a whole. The Working Group considers any detention based on evidence
obtained under duress to be arbitrary,23 as appears to be the case with regard to the detention
of Mr. García Amaya. This situation means that the Working Group is obliged to refer the
present case to the Special Rapporteur on torture and other cruel, inhuman or degrading
treatment or punishment.
85.
The Working Group notes that Mr. García Amaya went for more than 48 hours
without access to a lawyer of his choosing and that his public defender was not present during
the interrogations. The source has also stated that the public prosecutor’s office took action
to prevent a private lawyer from assisting Mr. García Amaya.
86.
The Government, for its part, alleges that the source has no evidence to substantiate
such claims but does not provide the records confirming the defender’s presence. The
Working Group reaffirms, as it has already done in its jurisprudence, that the refusal to allow
an individual to be assisted by a lawyer of his or her choosing, in particular in the first 48
hours, constitutes a violation of article 14 (3) (b) of the Covenant and renders the detention
arbitrary.24 In view of the foregoing, the Working Group finds a violation of the right of
Mr. García Amaya, as a detainee, to have adequate time and facilities for the preparation of
his defence and to communicate with counsel of his own choosing.
87.
The source has informed the Working Group that the defendant’s close family
members and lawyer were intimidated using his own phone, which was in the possession of
the public prosecutor’s office. The Government has responded by stating that, upon learning
of the complaint, it assigned armed officers to protect the individuals who had been
threatened. However, a thorough examination of the case shows that it was the Nuevo León
State Human Rights Commission and the Office of the United Nations High Commissioner
for Human Rights in Mexico that intervened to protect the family.
88.
The Working Group considers such acts of intimidation to be deeply concerning. It
notes that the right to communicate with a lawyer requires lawyers to be able to represent
their clients without restrictions, influence, pressure or interference. The Working Group
recalls that, as it has highlighted on numerous occasions, such acts against lawyers are
entirely unacceptable and violate articles 10 and 11 of the Universal Declaration of Human
Rights and article 14 (3) (b) of the Covenant.25 It is the legal and positive duty of the State to
protect everyone on its territory or under its jurisdiction against any human rights violation
and to provide remedy whenever such a violation occurs.26 The Working Group recalls that
principle 9 of the United Nations Basic Principles and Guidelines on Remedies and
Procedures on the Right of Anyone Deprived of their Liberty to Bring Proceedings Before a
Court states that legal counsels are to be able to carry out their functions effectively and
independently, free from fear of reprisal, interference, intimidation, hindrance or
harassment.27
89.
The Working Group has clearly established in its jurisprudence that intimidation of a
detainee’s family members and defenders, especially using information held by the State,
constitutes a form of indirect reprisal for the exercise of the right to defence. Similarly, in
cases in which the government fails to investigate threats against a detainee’s family
22 A/HRC/57/44/Add.1, para. 35.
23 Opinion No. 9/2024.
24 A/HRC/30/37, annex, principle 9 and guideline 8; and Human Rights Committee, general comment
No. 35 (2014), para. 35.
25 Opinions No. 42/2020, No. 66/2019, No. 28/2018, No. 70/2017, No. 36/2017, No. 34/2017,
No. 32/2017, No. 29/2017 and No. 14/2017. See also A/HRC/45/16, para. 54.
26 A/HRC/45/16, annex I.
27 See also Basic Principles on the Role of Lawyers, paras. 16–22.
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13
members or allows the detainee’s personal information to be used against them, the right to
privacy is violated and the detention is arbitrary owing to the reprisals.
90.
The Working Group reaffirms that the right to due process and to a fair and impartial
trial is the basis of democracy and must be guaranteed to all persons in both civil and criminal
cases. Based on the analysis conducted, the Working Group concludes that the source has
clearly and credibly demonstrated that the elements that should have guaranteed a fair trial
for Mr. García Amaya have been violated. The Working Group notes the source’s claim that
the AMBER alert describes a suspect whose physical characteristics are completely different
to those of Mr. García Amaya. The Working Group notes that, when the judicial system relies
on erroneous or manipulated identification processes and fails to address obvious physical
inconsistencies, the process loses legitimacy.
91.
The source has also affirmed that the victim, who was a minor, was manipulated by
being given gifts by the public prosecutor’s office and that objective protocols were not
followed when she identified Mr. García Amaya. The Government, for its part, merely
pointed out that the entire process was conducted in strict compliance with the law.
Furthermore, the progression of the case, which was initially based on the crimes of
aggravated kidnapping and sexual abuse – with Mr. García Amaya being acquitted of the
latter – is questionable, since he was acquitted after the judge had been assured that he was
the man described and that the victim had allegedly “recognized” him. In its response, the
Government made no mention of this situation; it simply indicated that Mr. García Amaya is
currently accused of kidnapping. This is a matter of deep concern for the Working Group,
since there is no clear legal explanation from the Government as to why Mr. García Amaya
was acquitted of the charge of sexual abuse but convicted of kidnapping. The situation raises
doubts about respect for due process in the case and brings to mind the observation made
during the visit to Mexico, when it was noted that the judiciary frequently faces external
pressure when issuing its decisions.28 Consequently, the Working Group determines that there
were serious violations of due process in the proceedings against Mr. García Amaya.
92.
The Working Group concludes that the non-observance of international norms
relating to the right to a fair and impartial trial is of such gravity as to give Mr. García
Amaya’s deprivation of liberty an arbitrary character under category III.
3.
Disposition
93.
In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Cipriano García Amaya, being in contravention of
articles 3, 5, 9, 10 and 11 of the Universal Declaration of Human Rights and articles
9, 10 and 14 of the International Covenant on Civil and Political Rights, is arbitrary
and falls within categories I and III.
94.
The Working Group requests the Government of Mexico to take the steps necessary
to remedy the situation of Mr. García Amaya 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.
95.
The Working Group considers that, taking into account all the circumstances of the
case, the appropriate remedy would be to release Mr. García Amaya immediately and accord
him 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
28 See A/HRC/57/44/Add.1.
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an infringement of this basic right, he has, inter alia, under the provisions of the
appropriate laws, an enforceable right to just compensation.
96.
The Working Group urges the Government to ensure a full and independent
investigation of the circumstances surrounding the arbitrary deprivation of liberty of
Mr. García Amaya and to take appropriate measures against those responsible for the
violation of his rights.
97.
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.
98.
The Working Group requests the Government to disseminate the present opinion
through all available means and as widely as possible.
4.
Follow-up procedure
99.
In accordance with paragraph 20 of its methods of work, the Working Group requests
the source and the Government to provide it with information on action taken in follow-up
to the recommendations made in the present opinion, including:
(a)
Whether Mr. García Amaya has been released and, if so, on what date;
(b)
Whether compensation or other reparations have been made to Mr. García
Amaya;
(c)
Whether an investigation has been conducted into the violation of Mr. García
Amaya’s rights and, if so, the outcome of the investigation;
(d)
Whether any legislative amendments or changes in practice have been made to
harmonize the laws and practices of Mexico with its international obligations in line with the
present opinion;
(e)
Whether any other action has been taken to implement the present opinion.
100.
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.
101.
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.
102.
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.