[25 June 1996]
* The initial report submitted by the Government of Mexico is contained
in document CAT/C/5/Add.7; for its consideration by the Committee,
see documents CAT/C/SR.16 and 17 and the Official Records of
the General Assembly, forty-fourth session, Supplement No. 46
(A/44/46), paras. 170-201. The second periodic report is contained
in document CAT/C/17/Add.3; for its consideration by the Committee,
see documents CAT/C/SR.130, 131 and Add.2 and the Official Records
of the General Assembly, Forty-eighth session, Supplement No. 44
(A/48/44), paras. 208-229.
INTRODUCTION
1. As a State party to the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Mexico is submitting
its third periodic report for consideration by the Committee against
Torture, in conformity with the provisions of article 19 of the
Convention and with the Committee's general guidelines for the submission
of reports.
2. Article 133 of the Constitution of the United States of Mexico
provides that international treaties concluded by the President
of the Republic, with the approval of the Senate, shall, together
with the Constitution itself and the laws of the Federal Congress,
constitute the supreme law of the entire nation; in view of this
provision, the Convention forms part of national legislation and
can represent a basis and foundation for any legal action.
3. In conformity with the principles enshrined in the Constitution,
the Mexican State shares the responsibility and concern of the community
of nations to protect and oversee the fundamental rights of the
human being, and has accordingly signed and ratified various instruments
of world and regional scope in this area.
4. The Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment is consistent with our Constitution. When
it acceded to the Convention, Mexico reaffirmed that the rights
recognized in the Convention were in force in the country and thus
helped to extend their universal validity, making a clear commitment
to this end before the community of nations.
5. In its initial report, its second periodic report and its additional
report of May 1996 the Government of Mexico gave a detailed description
of the constitutional provisions and specific national laws that
guarantee respect for the human rights of all individuals in its
territory and under its jurisdiction, with no distinction whatsoever.
6. The second periodic report of the Government of Mexico, covering
the period up to June 1992, drew attention to the establishment
of the National Human Rights Commission (CNDH) by decree dated 6
June 1990 and the adoption in December 1991 of a new Federal Act
to Prevent and Punish Torture.
7. The additional report submitted in May 1996 contains material
supplied by various bodies covering the period from May 1992 to
December 1995 and relating particularly to the activities of the
National Human Rights Commission, the Office of the Attorney-General
of the Republic and the implementation of the Federal Act to Prevent
and Punish Torture.
8. During the period covered by the additional report, human rights
commissions were established in all the legislatures of the Republic,
in pursuance of the decree of 28 January 1992, which added a paragraph
(b) to article 102 of the Constitution, empowering federal and State
congresses to establish bodies for the protection of human rights,
with constitutional status, in their respective areas of competence.
9. When the second periodic report of the Government of Mexico was
submitted to the Committee against Torture, all complaints of torture
were dealt with by the National Human Rights Commission. Currently,
when complaints of torture involve federal authorities, they are
dealt with by the National Commission, and when they involve State
authorities they are dealt with in the first instance by the State
commissions. Notwithstanding, the National Commission may exercise
its power to consider them.
10. Mexico has participated with determination and enthusiasm in
the great wave of internationalization of the protection of human
rights by means of declarations, covenants, conventions and judicial
commissions and bodies designed to improve this protection and make
it more effective. In this framework, on 23 January 1986 the Government
of Mexico signed and ratified the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment, which
became effective in Mexico from 26 June 1987.
11. Mexico's libertarian calling is the basis for the defence of
human rights of Mexicans within the country and abroad. In Mexico,
with our spirit of civilized coexistence, the absence of general,
public and effective respect for human rights is inconceivable.
The protection of those rights is not a concession to society, but
the primary obligation of the Government towards the population.
12. The Government of Mexico recognizes the need for strict compliance
with the rule of law and unreserved respect for the human rights
laid down in the Mexican Constitution. The chapter on individual
guarantees and social rights in our Constitution does honour to
Mexican constitutionalism and to the most modern conception of universal
law.
13. The Government of Mexico has supplied general information about
the country, which may be found in the basic document HRI/CORE/1/Add.12/Rev.2.
ANALYSIS OF ARTICLES
Article 2
Legislative, administrative and judicial measures adopted by
the Government of Mexico pursuant to the provisions of the
Convention
14. According to the Federal Act to Prevent and Punish Torture,
the offence of torture occurs when a public official inflicts severe
pain or suffering on a person; by that simple fact, irrespective
of the result or consequences of the action, he is liable to the
penalty prescribed for that offence. This means that, when a public
official commits torture, generally physical, he may, in addition
to that offence, also have committed others, such as threats, injuries
or causing death, and when that happens it is known legally as a
combination of offences.
15. In practice, article 64 of the Federal Penal Code and article
25 of the Penal Code for the Federal District provide that, for
this category of offence, "the penalty for the most serious offence
shall be applied, and may be increased to up to one half more than
the maximum length of sentence, provided that it does not exceed
the maximum penalty, which is 50 years' imprisonment".
16. This means that public servants who have committed the offence
of torture may be tried and punished in accordance with the above-mentioned
rules not solely for torture, but also for causing serious injuries
or for homicide.
17. During the period covered by this report, amendments to a number
of enactments were introduced and subsequently incorporated into
federal law in January 1994, with the result that the Federal Government
assumed direct responsibility for the reparation of damage caused
by the wilful misconduct of public servants, including moral damage.
18. With regard to the national law applicable to restitution, compensation
and rehabilitation for victims of grave violations of human rights,
on 10 January 1994 amendments to the following ordinances were published
in the Diario Oficial de la Federación (annex I):
Penal Code for the
Federal District in respect of Ordinary Law and for the entire
Republic in respect of Federal Law;
Federal and Federal
District Codes of Penal Procedure;
International Extradition
Act;
Civil Code for the
Federal District in respect of Ordinary Law and for the entire
Republic in respect of Federal Law;
Federal Act on the
Responsibilities of Public Servants;
Tribunal Fiscal
of the Federation Organization Act;
Federal District Administrative
Court Act;
Federal Act to Prevent
and Punish Torture;
Federal Budget, Accounts
and Public Expenditure Act;
Judiciary of the Federation
Organization Act.
19. These amendments, which are concerned with the reparation of damage
resulting from the commission of offences, state that such reparation
includes compensation for material and moral damage, including payment
for any remedial treatment necessitated by the offence for the restoration
of the victim's health.
20. It has also been established that the State must accept liability
in solidum for damage resulting from wilful misconduct of public
servants in the performance of their duties, and secondary liability
in the event of a culpable wrong; a specific line in the State public
expenditure budget has been provided for this purpose.
21. Furthermore, where the damage is caused by acts not deemed to
constitute offences under the Civil Code, the State is made liable
for the reparation of damage caused by public servants in the performance
of their duties. As a general rule, State liability is secondary,
except in the case of wilful misconduct, where it is in solidum.
In this regard, State liability arises only in cases where the public
servant who is directly responsible does not have sufficient means
to cover his own liability.
22. With respect to administrative liability, the procedure for obtaining
reparation for damage has been streamlined, in terms of both time-limits
and formalities. Prior to the amendment the amount of time required,
and the excessive bureaucratic formalities, made it virtually impossible
to secure reparation. In addition, judicial procedures have been established
to make reparation effective in cases where the public servant refuses
to comply.
23. The reform establishing the liability of the State and regulating
the means of exercising recognized rights, which is even more important,
has a preventive aspect with regard to torture. When the authorities
are obliged to provide reparation for damages, as the National Human
Rights Commission pointed out in recent recommendations, such as recommendation
98/95 (annex II), they become more aware of the need to introduce
efficient monitoring machinery so that public servants under their
authority observe the law in performing their duties, and there is
also a greater incentive to provide staff training in human rights.
24. The above-mentioned recommendation 98/95 concerns the disturbances
of 3-4 May 1995 at the Guadalajara Social Rehabilitation Centre, when
State and federal police beat and mistreated inmates, taking seven
lives; it was sent to the Governor of the State of Jalisco and the
Attorney-General of the Republic.
25. Article 27 of the Federal Code of Penal Procedure states that
a confession is "a voluntary declaration made by a person not under
18 years of age in full possession of his mental faculties, before
the Public Prosecutor, or the judge or court trying the case, concerning
acts of his own commission constituting the type of offence with which
he is charged, issued subject to the formalities indicated in article
20 of the Constitution of the United Mexican States; it shall be admissible
at any stage of the proceedings, until such time as irrevocable sentence
is pronounced".
26. For an accused person's confession to have probative value it
must be made to the Public Prosecutor's Office or to the judge and,
in addition, the rest of the requirements laid down in article 287
of the said Code must be met, namely:
"I. That it be made
by a person not under 18 years of age, against himself, in full
awareness, subject neither to coercion nor to physical or moral
violence;
II. That it be made
to the Public Prosecutor's Office or the court trying the case,
in the presence of the accused person's defence counsel or confidant,
and that the accused be duly informed of the procedure and process;
III. That it concern
an act of his own commission;
IV. That there are
no circumstances which, in the opinion of the judge or court,
make it implausible."
27. The Code also provides that a person may not be held for trial
when the sole incriminating evidence is his confession and - a very
important point -that the judicial police is empowered only to submit
reports but not to obtain confessions, which, were it to do so, would
lack any probative value, as expressly stated in article 287.
28. To this effect, the final paragraph of the article mentioned,
recently amended by the Decree published in the Diario Oficial
de la Federación for 10 January 1984, accords the value only of
testimony to the findings of inquiries conducted by officers of the
federal or local judicial police, the said testimony requiring, in
order to be taken into account in the committal order, to be supplemented
by other evidence resulting from inquiries conducted by the Public
Prosecutor's Office; but in no event may the former findings be taken
as a confession. It is also stated that the courts have a duty to
set forth in their decisions the arguments they took into account
in legally assessing the evidence (art. 290).
29. Finally, with regard to the 1991 reforms to the Federal Code of
Penal Procedure, article 127 bis establishes the right of every
person to be assisted by a freely chosen counsel at the time of making
his statement. The counsel then has the right to challenge any questions
put to the deponent if they are irrelevant or unfair, but may not
produce or induce his client's replies.
30. The reforms introduced in the Code of Penal Procedure for the
Federal District are similar in content and scope to those made to
the Federal Code, but it should be noted that the third and fourth
paragraphs of article 134 bis, amended on 10 February 1994,
make it a duty for the Public Prosecutor's Office to ensure that a
person suspected of committing an offence is not held incommunicado,
intimidated or tortured and, furthermore, provide that suspects may,
from the start of the preliminary investigation, appoint a counsel
or confidant to take charge of their defence, failing which it is
for the Attorney-General's Office to assign counsel.
31. These legislative reforms have been accompanied by an appreciable
change in Mexican judicial practice, as can be seen from the jurisprudential
rulings of the Supreme Court of Justice of the Nation and the Collegiate
Circuit Courts, which are in keeping with those reforms.
Office of the Attorney-General of the Republic
32. The Office of the Attorney-General of the Republic, in applying
article 2 of the Convention - which requires the States parties to
take legislative, administrative, judicial or other measures to prevent
acts of torture - has always endeavoured to ensure that public servants
comply with the obligations under the procedural statute and with
the commitments under the Convention and other international instruments,
such as the Inter-American Convention to Prevent and Punish Torture.
33. Between June 1992 and December 1995, the Office of the Attorney-General
of the Republic published the following legal ordinances, which regulate
the conduct of public servants in that office in defending human rights
and combating impunity:
Code of Professional
Ethics for Federal Agents of the Public Prosecutor's Department
and the Judicial Police, published on 24 March 1993;
Regulations of the
Federal Judicial Police Career, published on the same date;
Circular 010/93 of
6 April 1993, issued by the Attorney-General of the Republic establishing
the Unit for follow-up of recommendations of the National Human
Rights Commission. Its purpose is to respond to the requirements
of the Commission, especially concerning complaints about the
conduct of preliminary investigations where a particular offence
is presumed to have been committed, as would be the case for torture
and other serious unlawful acts;
Institutional Code
of Conduct and Ethics, adopted in 1995 (annex III);
Definition of the
mandate of the Office of the Attorney-General of the Republic,
adopted in September 1995:
"The Office of the Attorney-General of the Republic, which includes
the Public Prosecutor's Department, is an essential organ of the federal
justice system. On behalf of individuals, society and the State it
promotes and monitors compliance with the Constitution and ensures
that justice is done within its areas of competence. It also participates
in crime prevention activities to guarantee public safety;
This mandate must
be exercised in strict compliance with the principles of the
Constitution and the relevant legislation, and also in full
observance of human rights, as prerequisites for the rule
of law;
The activities
of the Federal Public Prosecutor's Department and its subsidiary
offices shall be oriented towards, and governed by, the principles
of honesty, professionalism, impartiality, loyalty and efficiency,
always with good faith and humanity."
Circular No. 001/95
of 10 March 1995. This provides that all communications which
any public servant of the Office of the Attorney-General of the
Republic requires to have with the National Human Rights Commission
must be effected through the Internal Control Unit, which would
be the only point of contact for communication with and proceedings
before that body.
Directorate-General of Human Rights Protection
34. The year 1993 saw the creation of the Directorate-General of Human
Rights Protection, which forms part of the internal structure of the
Office of the Attorney-General of the Republic and performs specific
functions provided for in article 29 of the implementing regulations
of its Organization Act, namely monitoring, protection and promotion
of human rights and dissemination of the values that must underpin
the conduct of public servants responsible for seeing justice done
so as to obviate, through preventive action, the commission of offences
such as torture.
National Human Rights Commission
35. While for reasons of competence it is now the local commissions
which first hear complaints of torture committed by State authorities,
the National Human Rights Commission has the power to review in second
instance, in addition to which it may exercise its power to examine
in matters of particular gravity, which exceed the scope of the State
bodies.
36. It is important to note that in federal cases, including those
of torture, there is no time-limit for lodging complaints, which reinforces
the systematic drive to combat impunity and ensures that no act of
torture remains unreported owing simply to the passage of time. In
this connection it is noteworthy that the National Human Rights Commission
Organization Act sets a precedent for the imprescriptibility of the
submission of complaints, and defines torture as a crime against humanity.
37. Also worthy of mention is the publication on 22 November 1994,
in the Diario Oficial de la Federación, of the General Regulations
for Military Prisons (annex IV).
Article 3
Legislative or other measures to prohibit the expulsion, return
or extradition of a person to another State where he would be in
danger of being subjected to torture
38. The determination displayed by the Mexican State in rejecting
torture has been steadfast at the domestic and international levels
alike.
39. At the domestic level, article 22 of the Constitution of the United
States of Mexico prohibits punishments by mutilation and infamy, flogging,
beating with sticks, torture of any kind, excessive fines, confiscation
of property and any other unusual or overwhelming penalties.
40. Secondly, article 15 of the Constitution lays down that no treaty
may be authorized for the extradition of political prisoners or of
common offenders who have been slaves in the country where they committed
the offence; and that no agreement or treaty shall be entered into
which restricts or modifies the guarantees and rights which the Constitution
grants to the individual and to the citizen.
41. The aforementioned article is in accord with article 3 of the
Convention. Similarly, articles 8 and 9 of the International Extradition
Act provide that extradition shall under no circumstances be granted
in the case of persons who may be subjected to political persecution
by the requesting State, or when the wanted person has been a slave
in the country where the offence was committed, or if the offence
for which his extradition is demanded comes within the jurisdiction
of the military courts.
42. Article 10 of the same Act provides that the Mexican State shall
insist, as a condition for considering the application, upon the requesting
State's undertaking, inter alia, that if the offence with which
the wanted person is charged is punishable under its legislation by
death or any of the other penalties specified in article 22 of the
Constitution, sentence only of imprisonment or such other less severe
penalty as that country's legislation prescribes for the case shall
be passed, either directly or by substitution or commutation.
43. With regard to expulsion, article 42, section VI of the General
Population Act provides that a refugee may not be returned to his
country of origin, nor sent to any other where his life, liberty or
safety will be threatened, which is also in accord with article 3
of the Convention.
Rules for evaluation of risk and policy of the Government of Mexico
as to the granting of refugee status
44. Article 89 of the implementing Regulations of the General Population
Act lays down the following rules to govern the admission of non-immigrants/refugees:
"I. Aliens arriving
on Mexican territory who are fleeing from their countries of origin
to protect their lives, safety or freedom under threat from generalized
violence, foreign aggression, internal conflicts, massive violation
of human rights or other circumstances that have gravely perturbed
public order shall be provisionally admitted by the migration
offices, provided that they stay at the port of entry while the
Ministry decides each case. The migration office concerned shall
inform headquarters of this situation through the quickest channels.
The latter shall determine the action to be taken in each specific
case.
II. The person concerned,
in requesting asylum, must indicate the reasons for his having
fled his country of origin, his personal particulars, the data
necessary for his identification, and the means of transport that
he used.
III. Once the authorization
has been granted by headquarters, the necessary measures will
be taken for the refugee's safety and for his transfer to the
place assigned for his residence, which shall be specified in
the authorization itself.
IV. Admission as a refugee shall not be granted to an alien coming
from a country other than the one in which his life, safety or
freedom were threatened, except where it can be shown that he
was not accepted in the country from which he is coming or that
in that country he is still exposed to the danger that forced
him to flee from his country of origin.
V. All aliens admitted
to the country as refugees shall remain subject to the following
conditions:
(a) The Ministry shall
determine the place where the refugee must reside and the activities
in which he may engage, and may establish other conditions to
regulate his stay when in its view the circumstances so warrant.
(b) Refugees may request
the admission to Mexico of their spouses and minor or handicapped
children, to live as their economic dependants, and these may
be granted the same migrant status, which may also be accorded
to the refugee's parents if deemed desirable.
(c) Aliens admitted
as refugees may go abroad only with prior permission from headquarters;
should they do so without such permission, or remain outside the
country for longer than the authorized time, they shall lose their
migrant rights.
(d) A refugee may
not be returned to his country of origin, nor sent to any other
where his life, freedom or safety will be threatened.
(e) The Ministry may
exempt an alien to whom such migrant status is accorded from any
penalty he may have incurred by illegally entering the country.
(f) The authorizations
referred to in this article shall be granted for such time as
the Ministry deems fitting. Temporary residence permits are granted
for one year and, should this period need to be exceeded, may
be further extended one year at a time. To this end, those concerned
must apply for revalidation of their permit within the 30 days
prior to its expiry. Such revalidation will be accorded if the
circumstances that prompted the refugee to seek asylum persist
and provided that the requirements and conditions indicated by
the Ministry have been complied with. The same procedure shall
apply to relatives.
(g) A permit shall
be required for any change of abode or any extension or change
of activities, subject to the requirements indicated by the Ministry.
(h) Temporary residence
in the country with the status of refugee shall not generate any
rights of permanent residence.
(i) When in the opinion
of the Ministry the circumstances that prompted the person concerned
to seek asylum no longer obtain, he must leave the country, together
with any members of his family who have the same migrant status,
within the next 30 days, or alternatively may avail himself of
the provisions of article 59 of the Act.
(j) Refugees are required
to declare any changes in their civil status, as also the birth
of children in Mexican territory, within a maximum period of 30
days from the date of the change, performance of the ceremony,
or marriage."
Authority that decides upon extradition, expulsion or return, and
possibility of challenging the decision
45. In pursuance of article 6, section XIV of the Internal Rules of
the Ministry for Foreign Affairs, it is the responsibility of the
Minister to ratify by his signature the decisions referred to in articles
19, 20, 21 and 30 of the International Extradition Act.
46. Article 16, section IV of the same rules assigns to the Directorate-General
of Legal Affairs of the Ministry for Foreign Affairs responsibility
for taking action in extradition proceedings in accordance with the
provisions of the International Extradition Act and of any agreements
concluded between Mexico and other States.
47. With regard to expulsion, it is the responsibility of the Coordination
Office for Legal Matters and Immigration Control of the National Institute
of Migration of the Ministry of the Interior to put it into effect
in accordance with the provisions of article 10, section 1 of the
Decree establishing the National Institute of Migration as a decentralized
technical body attached to the Ministry of the Interior.
48. In the case of extradition, the second paragraph of article 33
of the International Extradition Act provides that a decision granting
extradition can be challenged only through an action for amparo.
As regards expulsion, it is considered that an expulsion order can
also be challenged through the same means of legal defence, i.e. an
action for amparo.
Special training for assessing the probability that a person will
be tortured in case of expulsion or whether he has already been tortured
in his country of origin
49. Personnel dealing with migration need general preparation for
their work through training and personal improvement courses and programmes.
With regard to determining whether a person has been or may be subjected
to torture, it is essential to have medical and psychological personnel
who are trained to deal with such cases and who must report to the
migration authorities the results of any examinations they perform.
50. It is also desirable that the National Human Rights Commission
be represented at migration posts to ensure respect for the physical
and moral integrity of aliens and to promote preventive behaviour
conducive to protection of the physical integrity of individuals at
the national and international levels, as also to draw attention to
the penalties to which persons who carry out acts of torture are liable.
51. Expulsions made effective in the year 1995:
January 9 943
February 9 155
March 10 527
April 8 498
May 9 217
June 9 593
July 8 533
August 8 048
September 8 797
October 8 637
November 7 941
December 6 174
Total 105 063
52. Aliens who expressed fear of returning to their countries of
origin, and therefore requested interviews with the United Nations
High Commissioner for Refugees, during 1995:
Name Nationality
Orlando Bernal Ruiz Cuban
Afeadz Ahfaz Arfhad Pakistani
Udoka Okechu Kwu Nigerian
Remon Abukhaber Jordanian
Roda Ali Hussein Somalian
Hibo Mourid Somalian
Amadu Osman Liberian
Joseph Sarpong Liberian
Abmad Aftab Pakistani
Hallak Samul Sarein Iraqi
Luis Manuel Espinoza Betancourt Cuban
Wilfredo Prendes Cuban
David Carter Nigerian
Ryan Smith Nigerian
Mohiuddin Choudaury Bangladesh
Reza Sistar Iranian
Diana Angie Sierra Leonean
Joseph Williams Liberian
Rosa Galan Chica Salvadoran
Joseph Williams Qdob Liberian
Article 4
Number of cases
in which the Federal Law to Prevent and Punish Torture has
been applied to public servants for the offence of torture
or homicide as a consequence of torture
53. The decline in cases of torture has been a priority in the work
of the CNDH. For the past six years, and particularly since the presentation
of Mexico's initial report, significant progress has been made in
terms of the penalties applied for the offence of torture.
54. The following table shows the changes that have occurred in the
number of complaints of torture, according to the records of the National
Commission.
Semester or 12-month Total No. of complaints Complaints
period received of torture
First semester
June-December 1990 1 343
180
Second semester
December 1990-June 1991 1 913
266
Third semester
June-December 1991 2 485
156
Fourth semester
December 1991-May 1992 4 503
134
12-month period
May 1992-May 1993 8 793
246
12-month period
May 1993-May 1994 8 804
141
12-month period
May 1994-May 1995 8 912
45
12-month period
May 1995-May 1996 8 357
59
55. From these figures, especially those of the last 12-month period,
it may be noted that, of the 59 complaints of torture received, only
43 were deemed admissible for follow-up by the National Commission.
The remaining cases were sent to the State Commissions for referral
to public officials under ordinary jurisdiction and were considered
to be cases of incompetence, where either the alleged acts of torture
had already been assessed by the courts, or the plaintiff had abandoned
his action before the National Commission or had lost interest in
pursuing the proceedings.
56. It should also be noted that, in the 43 cases mentioned above,
16 of the acts occurred during 1996, 23 in 1995, and the rest in previous
years. Since 1992, a total of 37 preliminary investigations for the
offence of torture have been conducted:
Year Total number accused
1992 18
1993 8
1994 0
1995 10
57. The General Directorate for Follow-up of the CNDH Recommendations
has presented 31 preliminary investigations into the possible offence
of torture to district judges:
Year Total number accused
1992 28
1993 0
1994 3
1995 0
58. The National Commission is aware of legal action having been brought
against 53 public servants for the offence of torture, and against
14 for homicide arising from torture. In two cases, the trial judge
pronounced a verdict of guilty of torture and in five cases a verdict
of homicide as a consequence of torture. These cases are the following:
(a) Criminal proceedings for the offence of torture
(i) In recommendation 73/91, in the case of Martín Arroyo Luna et
al., criminal action was brought against Gustavo Castrejón Aguilar
(annex V);
(ii) In recommendation 42/92, in the case of Mr. William Darío Kerguelen
Pinilla, criminal action was brought against Mario Santander Embriz
(annex VI);
(b) Criminal proceedings for the offence of homicide as a consequence
of torture
(i) In recommendation 3/90, in the case of Mr. Jorge Argáez Pérez,
criminal action was brought against Alejandro San Pedro González (annex
VII);
(ii) In recommendation 29/90, in the case of the People of Aguililla,
Michoacán, criminal action was brought against Raymundo Gutiérrez
Jiménez (annex VIII);
(iii) In recommendation 1/91, in the case of Pedro and Felipe de Jesús
Yescas Martínez, criminal action was brought against Omar Olguín Alpízar
(annex IX);
(iv) In recommendation 15/91, in the case of Ricardo López Juárez,
criminal action was brought against Enrique Alvarez Palacios (annex
X);
(v) In recommendation 50/91, in the case of José del Carmen Llergo
Totosaus, criminal action was brought against José Rojas Garrido (annex
XI).
59. Furthermore, in 7 cases the jurisdictional proceedings reached
no conclusions; in 13 cases, the respective arrest orders were not
carried out; and 25 arrest orders were rejected or cancelled by judges
and a formal arrest warrant revoked.
60. Of the 1,022 recommendations issued by the CNDH from its establishment
until December 1995, torture was proven in 105 recommendations, and
on those occasions the illegal action of the offending public servants
was publicly disclosed along with their names; it was also recommended
that the appropriate administrative and criminal proceedings should
be initiated. Those recommendations were based not only on national
legislation but also on the covenants and treaties ratified by the
Government, including the Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment.
61. Of the 105 recommendations in which torture was proven, 72 are
noteworthy for having been fully implemented; 32, partially implemented;
2 remain pending, as they were issued recently, and only 1 was not
accepted by the Chief Justice of the Supreme Court of Justice of the
State of Sinaloa.
62. The General Directorate for Follow-up of the CNDH Recommendations,
part of the Office of the Attorney-General of the Republic, reported
the following data for the period 1992 to the present, based on recommendations
of the Commission:
recommendations registered 15
arrest warrants:
requested 50
issued 33
assent pending -
execution pending 10
rejected 17
cancelled 6
executed 17
suspended 10
arrest warrants:
rejected and confirmed 17
rejected and not appealed -
rejected pending decision on appeal -
cancelled due to death 2
cancelled due to prescription -
cancelled due to amparo 4
detention order revoked 2
release orders 3
investigation -
rearrests 1
awaiting conclusion -
awaiting sentence -
judgements 11
TOTAL 50
convictions 8
acquittals 3
63. On the basis of these preliminary investigations and trials, the
following public servants have been held for torture:
1 Former State delegate
2 Agents of the Federal Public Prosecutor's Office
6 Federal Judicial Police commanders
3 Group chiefs of the Federal Judicial Police
1 Preventive Police officer assigned to the Federal Judicial Police
3 Administrators
34 Federal Judicial Police officers
50 Total
Article 5
Jurisdiction
of the relevant laws
64. There are several provisions in Mexico that deal with torture,
such as the Federal Act to Prevent and Punish Torture, as mentioned
in the Government's initial report; article 3 of that Act provides
as follows:
"The offence of torture
is committed by a public official who, by virtue of his office,
inflicts on another person severe pain or suffering, whether physical
or mental, for the purpose of obtaining from him or a third person
information or a confession or punishing him for an act he has
committed or is suspected of having committed, or coercing him
into acting or refraining from acting in a particular manner."
65. This law applies to any public servant of the Federation or the
Federal District who employs these illegal methods of torture, whether
directly or through third parties. The States and Federal District
also have laws for combating and punishing torture within State and
local territory.
66. Other national laws deal with degrading treatment and grave torture
of persons, including the Penal Code and the Federal Act on the Responsibilities
of Public Servants.
67. The last paragraph of article 19 of the Constitution, although
it does not mention the word "torture", refers to ill treatment and
molestation:
"Any ill treatment
during arrest or confinement, any molestation without legal justification
and any exaction or contribution levied in prison constitute abuses
which shall be punishable by law and repressed by the authorities."
68. More specifically, article 20, paragraph II, of the Constitution
stipulates the following with regard to torture:
"In all criminal proceedings,
the accused shall enjoy the following guarantees:
II. He may not be
compelled to testify. Any incommunication, intimidation or torture
is prohibited and shall be punished by criminal law."
69. More emphatically, article 22 of the Constitution states the following:
"Punishments by mutilation
and infamy, branding, flogging, beating with sticks, torture of
any kind, excessive fines, confiscation of property and any other
unusual or overwhelming penalties are prohibited."
Nationality of the author and victim of the offence of torture
70. Regarding the nationality of the author and victim of the offence
of torture, article 1 of the Constitution provides the following:
"In the United States
of Mexico every person shall enjoy the guarantees granted by this
Constitution, which cannot be restricted nor suspended, except
in such cases and under such conditions as are herein provided."
71. By Constitutional mandate, every person, whether a national or
an alien, enjoys the protection of his individual rights, which may
be neither suspended nor restricted, except in cases expressly provided
for by the Constitution. Thus, the victim of the offence of torture,
whether a national or an alien, is entitled to be compensated in accordance
with the law or, in case of death, his family is entitled to be compensated
for the injury and damages caused by the heinous act of torture. As
for the author of the offence of torture, whether Mexican or alien,
he must be tried in accordance with due procedures and the applicable
laws, and his human rights may not be violated through torture or
other degrading forms of treatment.
Article 6
Procedures for guaranteeing the detention of persons suspected
of torture during the period necessary to institute criminal
or extradition proceedings
72. The international extradition procedure in Mexico is governed
by article 119, paragraph 3, of the Constitution, the first part of
which provides as follows:
"Extraditions requested
by a foreign State shall be processed by the Federal Executive,
subject to the participation of the judicial authority under the
terms of this Constitution, the relevant international treaties
and regulatory laws. In these cases, the decision of the judge
ordering the execution of the request shall suffice to validate
the decision for up to sixty calendar days."
From this it is clear that international extraditions must comply
with the provisions of the International Extradition Act, if there
is no international treaty with the requesting State, and of the relevant
international treaties to which Mexico is a party.
International Extradition Act
73. The International Extradition Act came into force on 30 December
1975. Its provisions are public and federal in nature and are intended
to decide the cases and conditions under which individuals accused
in their courts or convicted there of common offences may be surrendered
to requesting States, in the absence of any international treaty.
74. By virtue of the foregoing, any extradition request from a foreign
Government must be processed and decided in accordance with the procedures
established by this Act.
Requirements
75. According to the Act, individuals may be extradited if criminal
proceedings have been instituted in another country against them for
a suspected offence, or if they are required to serve a sentence rendered
by the judicial authorities of the requesting State. The formal request
for extradition, and the supporting documents of the requesting State,
must contain the following:
"I. An indication of
the offence for which extradition is requested;
II. Evidence of the
offence and the probable guilt of the wanted person. If the individual
has already been convicted by the courts of the requesting State,
it shall suffice if an authentic copy of the sentence is attached;
III. The documents
referred to in article 10, in cases where there is no extradition
treaty with the requesting State;
IV. A copy of the
text of the law of the requesting State which defines the offence
and sets the penalty; the law on the limitation of actions and
applicable penalty; and the authorized declaration of the law's
validity at the time the offence was committed;
V. The authentic text
of the arrest warrant, if any, against the wanted person; and
VI. The personal data
and background of the wanted person, facilitating his identification
and, where possible, his whereabouts as well."
76. These documents and any others presented which are drafted in
a foreign language must be accompanied by a certified translation
into Spanish, in accordance with the Federal Code of Penal Procedure.
77. The International Extradition Act refers to another procedure,
known as preventive detention for purposes of extradition, which is
used exceptionally as part of international extradition proceedings.
78. This procedure comes into play when the requesting State expresses
the intention of submitting a formal request for the extradition of
a particular person, and requests the adoption of precautionary measures
with regard to the latter; this request may be granted only if the
request for preventive detention for purposes of extradition made
by the requesting State contains an identification of the offence
for which the extradition is requested and a statement to the effect
that an arrest warrant has been issued against the wanted person by
the competent authority.
79. Accordingly, if the Ministry for Foreign Affairs believes there
are grounds for doing so, it transmits the request to the Attorney-General
of the Republic, who immediately asks the relevant district judge
to order the appropriate measures, which may consist, at the request
of the Attorney-General, of a restriction order or other measures
as appropriate under the relevant treaties or laws.
80. If the formal request for extradition has not been submitted to
the Ministry for Foreign Affairs within the two months called for
by article 119 of the Constitution, starting from the date on which
the measures indicated in the foregoing article are enforced, the
measures will immediately be lifted. The judge hearing the case will
notify the Ministry for Foreign Affairs at the start of the 60-day
period so that the Ministry may bring it to the attention of the requesting
State.
81. Once a request has been admitted, the Ministry for Foreign Affairs
sends a warrant to the Attorney-General of the Republic, along with
the case file, requesting the competent district judge to issue an
order for its execution and for the detention of the wanted person,
as well as, if necessary, the seizure of any papers, money or other
objects found in his possession which are related to the alleged offence
or which might constitute evidence, if the requesting State has so
asked.
82. Once the wanted person has been detained, he is brought without
delay before the respective district judge, who acquaints him with
substance of the extradition request and with the documents accompanying
the request. At the same hearing he may appoint counsel. If he has
none but requests legal assistance, he will be presented with a list
of court-appointed counsel to choose from. If he does not appoint
one, the judge will do so in his stead. The detainee may ask the judge
to defer the proceedings until he agrees to counsel if counsel is
not present at the time the appointment is made.
83. Consequently, after due process has been followed in accordance
with the International Extradition Act and the Code of Penal Procedure,
the Ministry for Foreign Affairs, after considering the file and the
opinion of the judge, decides within the next 20 days whether to grant
or refuse extradition. If the Ministry grants extradition, it will
notify the wanted person and the Ministry of the Interior, and the
Government of Mexico will surrender the wanted person, through the
Office of the Attorney-General of the Republic, to the authorized
representative of the requesting State, at the border or, as appropriate,
aboard an aircraft in which the extradited person is to travel.
International treaties
84. The Government of Mexico wishes to state that, in the relevant
international treaties signed with other States, the requirements
stipulated by common consent for the processing, procedure and decision
on any request for extradition must be adhered to.
85. Nevertheless, the Government of Mexico and the co-signatory States,
in their international treaties on international extradition, undertake
to surrender to each other, subject to the terms of these treaties,
any persons in respect of whom the competent authorities of the requesting
party have instituted criminal proceedings, who have been found guilty
of an offence or who might be required by those authorities to serve
a legally imposed prison sentence for an offence committed on the
territory of the requesting State.
86. In order to give effect to the extradition, the international
conduct of the individual which falls under any of the subparagraphs
of the offences covered by the annexes of the international treaty
must be punishable under the laws of both States with a maximum prison
sentence of not less than one year.
87. Likewise, the Government of Mexico abides by the principle of
not handing over for extradition persons required to be tried for
military and political offences; or persons who have already been
tried, judged and either convicted or acquitted by the requesting
party for the same offence on which the request for extradition is
based; or when the limitation of criminal action or the sentence for
which extradition is requested has expired; or when the offence for
which extradition is requested is punishable by death.
88. It may be pointed out that the extradition procedure in international
treaties signed and ratified by Mexico is similar to that followed
in the above-mentioned International Extradition Act.
89. Mexico has concluded extradition treaties with the following countries:
Australia, Bahamas, Belgium, Belize, Brazil, Canada, Colombia, Cuba,
El Salvador, Germany, Guatemala, Italy, Netherlands, Panama, Spain,
United Kingdom and United States.
90. At the multilateral level, the Government has ratified the 1933
Convention on Extradition within the framework of the Organization
of American States.
Article 7
Criminal procedure
applicable to persons committing torture who are not extradited
91. This procedure is regulated by article 4 of the Federal Code of
Penal Procedure, the relevant part of which states the following:
"Offences committed
on foreign territory by a Mexican against Mexicans or aliens,
or by an alien against a Mexican, shall be punishable in the Republic
in conformity with Federal law, provided that the following conditions
are met:
I. The accused is
physically present in the Republic;
II. The accused has
not been definitively tried in the country in which he committed
the offence; and
III. The offence of
which he is accused is an offence in the country in which it was
committed as well as in the Republic."
92. Thus, if the requesting State applies for the extradition of a
Mexican national considered guilty of the offence of torture and in
conformity with the agreement issued by the Ministry for Foreign Affairs,
extradition of the wanted person will be refused, solely on the grounds
that he possesses Mexican nationality.
93. Some exceptions are none the less under article 30 of the Constitution,
in conformity with article 14 of the International Extradition Act,
which states that no Mexican may be turned over to a foreign State
save in exceptional cases, at the discretion of the Executive.
94. The Ministry for Foreign Affairs then notifies the detainee and
the Attorney-General of the Republic of the agreement, making the
case file available to the Attorney-General so that the Public Prosecutor's
Office can turn it over to the competent court, if appropriate, following
the due process established in article 20 of the Constitution, referred
to above.
95. In this way the Government combats impunity in cases where Mexican
nationals have committed the offence of torture.
96. In all the international treaties and conventions ratified by
Mexico on international extradition, it is stipulated that if the
party of whom the request is made does not grant extradition because
its domestic laws prevent it from turning its nationals over to foreign
States, that party must turn the case file over to its competent authorities
for criminal action, so long as the party has the legal jurisdiction
to try the offence.
97. It should be noted that there have not been any judgements on
this issue within the domestic legal framework, since never in our
country's ancient and recent history, has any State submitted either
a request to the Government for preventive detention for purposes
of extradition or a formal request for extradition on the grounds
of the probable commission of the offence of torture. Consequently,
Mexican legal authorities have never had occasion to take a stand
on the matter.
98. None of the 120 formal extradition requests made by various States
to the Government during the period 1994-1996 has involved the offence
of torture, despite the fact that torture is defined in the Federal
Penal Code and the annexes to all the international extradition treaties
ratified by Mexico.
Article 8
99. Laws and regulations governing extradition:
Federal jurisdiction
Constitution of Mexico (arts. 119 and 15);
International treaties and conventions on extradition or legal aid;
Federal Penal Code;
Code of Criminal Procedure;
Code of Civil Procedure;
Federal Act on the Responsibilities of Public Servants;
International Extradition Act;
Office of the Attorney-General of the Republic Organization Act;
Public Administration Organization Act;
Case law of the Second Division of the Supreme Court of Justice.
Ordinary jurisdiction
Penal Code for ordinary law;
Code of Penal Procedure for ordinary law;
Code of Civil Procedure for ordinary law;
Office of the Attorney-General of the Republic Organization Act.
Article 9
National provisions
for mutual judicial assistance between States in criminal proceedings
in cases of torture
100. The Mexican
Government wishes to state that, as a State party to the Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, it has undertaken to provide all possible assistance in
connection with any criminal proceedings for the offences referred
to in article 4, including the supply of all evidence at its disposal
necessary for the proceedings. The decree promulgating that Convention
was issued by the President of the Republic on 12 February 1986 and
published in the Diario Oficial de la Federación on 6 March
1986.
101. The Government is fulfilling its international obligations on
criminal proceedings for the offence of torture in conformity with
the cooperation agreements on mutual judicial assistance it has concluded
with the following States: Argentina, Australia, Brazil, Canada, Germany,
Spain and United States.
102. At the multilateral level, the Government has ratified or acceded
to the following international legal instruments on cooperation and
judicial assistance in criminal proceedings on torture: Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, Inter-American Convention to Prevent and Punish Torture,
receipt of evidence abroad, evidence and information from foreign
law.
Article 10
Education and information for the prohibition of torture: professional
training of civilian and military staff, medical personnel, public
officials and others participating in the interrogation, custody
or treatment of persons under arrest, detention or imprisonment
103. Article 2 of the Federal Act to Prevent and Punish Torture states
that:
"The subsidiary organs
of the Federal Executive concerned with the administration of
justice shall conduct continuing programmes and establish procedures
for:
II. The organization
of training courses for their staff in order to encourage respect
for human rights;
III. The professional
training of their police forces;
IV. The professional
training of public officials who are involved in the custody and
treatment of any person who has been arrested or imprisoned."
104. Thus, the various offices of the Federal Executive, many of them
in coordination with the CNDH, have established training programmes
for all public servants engaged in the above-mentioned activities,
and for medical personnel to enable them to recognize cases of torture
and the after-effects of physical or mental torture.
National Human Rights Commission
105. In order to strengthen respect for human rights, the National
Commission trains various security services and the armed forces.
In the first instance, the training programmes are focused on Federal
public servants within the Commission's sphere of competence; however,
in matters of prevention and of promotion of a human rights culture,
the Commission has also been training municipal and State officials,
in coordination with the respective State Commissions, and involving
universities and non-governmental organizations.
106. Currently, training programmes are focused on the following personnel
responsible for public or national security: police academy students,
police officers on preventive and municipal duties, judicial police
officers from the States and Public Prosecutor's Departments of ordinary
law, guards, immigration officers, federal highway police, and staff
assigned to the Office of the Attorney-General of the Republic, including
administrators, Federal Judicial Police and officials of the Federal
Public Prosecutor's Department.
Police academy
107. An awareness-raising campaign is now under way, aimed at reaching
all the police officers of all the State and federal agencies. It
began as a pilot programme at the police academy of the State of Aguascalientes,
with a training model that makes it possible to include not just human
rights, but all related subjects, in the curriculum.
108. For example, restraint techniques involve not only a knowledge
of the techniques of subjugation and manoeuvre, both individual and
collective, use of firearms and development of physical strength,
but also a knowledge of the implications of the use of force in time,
technique and proportionality. These techniques must be learned at
the same time as other police techniques, and not as a desk course
unconnected with reality.
109. Prior to the current programme, the CNDH had prepared a police
guide and a manual and primer that were widely disseminated among
the police forces.
Municipal police and preventive police
110. The training of preventive and municipal police on active duty
has begun in the State of Nayarit, to familiarize officers with the
basic concepts of respect for human rights and to teach them the implications
of, and restrictions on, their actions.
State judicial police officers
111. During the period covered by this report, training programmes
were carried out in conjunction with the State human rights commissions
and the offices of the Attorney-General in the States of Hidalgo,
Oaxaca, San Luis Potosí, Chihuahua and Tamaulipas, as well as in the
Federal District. The same will be done in the States of Veracruz,
Yucatán and Quintana Roo. Between May and December 1995, 342 officials
of the Public Prosecutor's Department and 693 judicial police officers
were trained. This training basically revolves around the use of force
and the problem of arbitrary detention, as well as the procedures
to be followed by personnel in the performance of their duties.
Guards
112. Guards in the State of Querétaro are being retrained through
a course entitled, "How human rights work in the CERESO",
which answers such basic questions as "which of my rights has
been violated within the CERESO (Social Rehabilitation Centre), and
which of the detainees' rights might I someday violate?"; 70
persons have participated to date. This programme will be given strong
support, in collaboration with non-governmental organizations and
the prisons themselves, dealing with the specific problems of indigenous
people and the situation of women detainees. Training courses will
also be given in the Islas Marías Federal Penal Settlement.
Immigration officers
113. In the current stage of the training provided for immigration
officers, a new programme has developed as a result of the report
published by the CNDH in April 1995, Southern border: report on
violations of the human rights of immigrants. In the Chiapan cities
of Tapachula and Comitán, 102 immigration officers have been trained,
out of a total of 230 immigration officers in the States of Chiapas,
Veracruz, Tabasco and Oaxaca.
114. In addition to supporting instruction on the findings and suggestions
of that report, the training process is aimed at diagnosing the fundamental
rights to be safeguarded by these officers in performing their duties
and at preparing a handbook for persons without papers in Mexico,
to make them aware of their rights and of the civilized treatment
to which they are entitled in Mexican territory.
Federal highway police
115. In the State of Nayarit, the federal highway police training
programme began with a workshop in which some 800 persons participated
and which consisted of an initial awareness-raising session on two
subjects, the dignity with which they must be treated as subjects
of human rights, and the civilized treatment which must in turn be
given to the population as a basic condition for the respect of human
rights.
Federal Judicial Police officers
116. An awareness-raising programme has now been completed, in which
1,975 staff members from the Office of the Attorney-General of the
Republic throughout the country participated, as follows: 579 federal
officers from the Public Prosecutor's Department; 746 Federal Judicial
Police officers; and 650 administrative staff.
117. This training was given to staff on active duty, in their respective
police stations. The initial awareness-raising stage revolved around
three basic rights - the right to life, dignity and liberty - each
analysed from two perspectives: that of the public servant as a subject
of law, and in his dealings with the population in the course of his
duties as a member of the Federal Judicial Police.
118. In each session, an effort was made to unify the conceptualization,
ethical and axiological criteria underlying these basic principles,
and the legal expression and legal effects, in order to make up for
the lack of specific information on such subjects as torture, arbitrary
detentions, the use of firearms and national and international legislation
ratified by Mexico.
119. Furthermore, public servants' requests that publications and
information on human rights and topics requiring special attention
should be sent to and distributed at all the State police stations
of the Office of the Attorney-General of the Republic have been met;
seminars have been organized with the participation of the CNDH and
the training institute of the Office of the Attorney-General.
Military academy
120. The CNDH has begun training courses on human rights as part of
the training of personnel of the General Staff of the Armed Forces
and the Mexican Air Force, as well as of managerial and teaching staff,
and has also initiated special courses at the military academy, all
for high-ranking officers in the Mexican Army and foreign scholarship
holders.
121. The curriculum includes an analysis of currents of philosophical
and ethical thought, a historical overview of the conceptual and legal
development of human rights worldwide, the Mexican Constitution and
international law, humanitarian law and Mexico's military legislation,
and instruments for the protection of human rights, with special emphasis
on the role of the Ombudsman and CNDH procedures. During 1995, 440
high-ranking officials participated in these courses.
Office of the Attorney-General of the Republic
122. The Office of the Attorney-General of the Republic, under the
provisions of article 10 of the Convention, has undertaken several
internal activities to disseminate, teach and promote human rights
through training courses, preventive programmes for vulnerable groups,
publications and the production of materials. This activity, which
has been regularly repeated, has contributed to a significant reduction
in the number of complaints of torture, as reflected in the CNDH's
latest report.
123. The objectives of the current training programmes of the Training
Institute of the Office of the Attorney-General of the Republic consist
of improving the quality of service provided by agents of the Federal
Public Prosecutor's Office and Federal Judicial Police agents.
124. During 1995, the Office of the Attorney-General of the Republic,
through the Internal Control Unit, carried out various activities
aimed not only at punishing public servants who act outside the law,
but also at establishing a regular human rights training programme,
in order to train its own public servants and make the administration
of justice a more efficient and law-abiding undertaking in keeping
with its responsibility to society.
125. The Office of the Attorney-General has also recently compiled
a list of the national and international legal instruments in force
in Mexico on the protection of human rights, with a view to publishing
a volume containing all the texts for distribution to officers of
the Federal Public Prosecutor's Department and to all the Office's
public servants, as material to consult in order to carry out their
duties in strict compliance with the law, always avoiding any acts
which might be considered to be in violation of fundamental human
rights.
Ministry of National Defence
126. The Ministry of National Defence runs courses to enhance the
professionalism of public servants participating in the custody and
treatment of persons subjected to arrest, detention or imprisonment.
127. The staff of the Military Justice Department has followed several
courses and programmes on human rights, organized jointly by the National
Autonomous University of Mexico and the Mexican Human Rights Academy,
aimed at keeping the students up to date by means of coursework and
lectures; the students then share their knowledge with other military
staff.
128. This office of the Federal Executive has published several manuals,
handbooks and instructional brochures, including the following:
Manual for the conduct
of army and air force personnel in the continuing struggle against
drug trafficking
Conduct in combat
On the resolution
of specific cases under the rules of warfare.
129. It should be mentioned that the last two are based on the First
Geneva Convention of 1949 and the International Peace Conference of
The Hague.
130. The training board, institutional programmes, curricula for educational
units, offices, facilities and staff of the Army and Air Force make
use of material on education in and respect for human rights and on
enforcement of the Federal Act to Prevent and Punish Torture; all
of the above has been incorporated in a number of provisions.
Article 11
Systematic review
of rules, regulations and instructions for the treatment of persons
subjected to interrogation, arrest, detention or imprisonment
Penal system
131. The laws and regulations on the enforcement of judgements in
criminal proceedings, which stipulate that the treatment of inmates
must be dignified and humane, are as follows:
Law establishing minimum
standards for the social rehabilitation of convicts and others
in similar situations in all States and the Federal District
Regulations of the Federal social rehabilitation centres
Regulations of the Islas Marías Federal Penal Settlement
Regulations of the
prisons and social rehabilitation centres of the Federal District
Regulations of the
State social rehabilitation centres and penal establishments
Law and Rules of Procedure
of the Federal District Human Rights Commission
Law and Rules of Procedure
of the State Human Rights Commissions
132. The staff of the country's detention centres are supervised by
local and federal agencies as well as by the respective human rights
commissions.
133. The General Directorate for Prevention and Social Rehabilitation
of the Ministry of the Interior appoints regional delegates, while
there are also State Offices for Prevention and Social Rehabilitation,
Human Rights Commissions, and General and Deputy Visitors in charge
of supervising the prisons.
Interdisciplinary Technical Councils of Penal Establishments
134. There are several authorities to which inmates may bring their
complaints, such as the Interdisciplinary Technical Councils of Penal
Establishments, which examine cases and take action in conformity
with the centre's regulations.
General Directorate of Prevention and Social Rehabilitation of
the Ministry of the Interior
135. Other ways in which the General Directorate of Prevention and
Social Rehabilitation of the Ministry of the Interior intervenes directly
include the following:
(a) Regional delegates go to the prisons and meet with the inmates.
Any complaints they receive are reported to the authorities and an
investigation is undertaken, in conjunction with General Directorate
staff;
(b) The "red post-boxes" of the Ministry of the Interior have been
installed in the country's penal institutions, with the aim of providing
inmates with a means of bringing complaints to that Ministry without
having to go through the prison authorities. Inmates deposit their
complaints in the post-boxes. The mail is picked up by the Mexican
Postal Service, which transmits it to the Prison Post-box Coordinating
Office; the Office sends the complaint or request to the General Directorate
of Prevention and Social Rehabilitation for investigation and processing;
and the Directorate then forwards it to the appropriate department
for immediate attention. The latter communicates the outcome of the
inmates' requests or complaints to them in writing;
(c) Direct correspondence from inmates or their families. The Directorate
forwards such correspondence to the appropriate department for immediate
attention, and the regional delegate is then asked to conduct the
investigation;
(d) Department of Legal Assistance and Public Information, which reports
directly to the Directorate. This deals with inmates' relatives and
their complaints or requests for information. An inmate's legal file
is analysed and information is given to his family, or in the case
of complaints forwarded to the Private Secretary of the Director-General
for attention or investigation. It is also brought to the attention
of the regional delegate for investigation and follow-up.
Rights and guarantees of prisoners
136. The rights and guarantees of prisoners are embodied in the following
legislation:
(a) Law establishing minimum standards for the social rehabilitation
of convicts:
"Article 13, paragraph 3:
... Inmates have the
right to be heard by prison officers, to register peaceful and
respectful complaints and requests to outside authorities and
to deliver them personally to public servants conducting official
visits to prisons.
Any punishment of
inmates consisting of torture or cruel treatment involving the
unnecessary use of violence is prohibited, as well as so-called
special cell-blocks or wings to which inmates are sent based on
their economic status, by paying a fee or boarding pension ...
."
(b) Regulations of the Federal social rehabilitation centres
"Chapter X: On internal
rules, article 122
All inmates may file
individual complaints and requests through the Director-General's
representative in the centre, who must compile and transmit them
to the Directorate and follow them up."
"Chapter XI: On disciplinary measures, article 128
Inmates, on their
own behalf or through relatives, their counsel or anyone they
designate, may express their objection to a disciplinary measure
by addressing themselves, either orally or in writing, to the
Interdisciplinary Technical Council or the Directorate, which,
within a period not exceeding 48 hours, shall issue a decision
and communicate it to the Prison Director for enforcement and
to the inmate, with a copy placed in the inmate's file."
In the application
of punishments, all torture or ill-treatment harmful to the inmate's
physical or mental health is prohibited.
Violation of this
provision shall give rise to the penalties established in these
regulations, without prejudice to any penal, employment-related
or administrative penalties to which the staff of the Federal
social rehabilitation centres may be liable."
(c) Regulations of the Islas Marías Federal Penal Settlement
"Chapter VIII: On incentives and punishments, article 52
The procedure for
imposing punitive measures for infringements of these regulations
shall be conducted in a single hearing, presided over by the Director
of the Penal Settlement, who shall hear the offender and receive
the evidence of the offence and the offender's guilt. The Director
of the Penal Settlement shall then render a decision, based on
these regulations and on the opinion handed down by the Interdisciplinary
Technical Council."
It is strictly prohibited
to instal punishment rooms or dungeons or to use torture or physical,
mental or moral ill-treatment damaging to the health or dignity
of inmates. Any violation of this article shall give rise to the
immediate removal from duty of the person who procures and orders
such violation, without prejudice to any corresponding penalties."
"Article 54
The offender may object
to the penalty imposed on him by appealing in writing to the Directorate,
within 15 days starting on the day after he is notified of the
disciplinary measure."
"Article 55
"Once the appeal has
been filed, the Directorate shall take a final decision within
at most 10 days. The offender shall be notified of the decision."
(d) Regulations of the prisons and social rehabilitation centres
of the Federal District:
"Chapter X: Internal
regulations for prisons, article 136
The use of any physical
or mental violence or of any procedure on the part of any authority
or other persons acting at its instigation which is harmful to
the dignity of inmates is prohibited."
... observance of
decent, fair and respectful treatment of the dignity of inmates
and their relatives, ..."
The disciplinary measures
referred to in the foregoing article shall be imposed through
a decision of the Interdisciplinary Technical Council, delivered
at the session held immediately following the offence."
Inmates may not be
punished without having previously been informed of the penalty
to be applied and without having been given the opportunity to
defend themselves."
When the Director
or a person acting in his absence is made aware of an offence
committed by an inmate, he shall order the alleged offender to
be brought before the Interdisciplinary Technical Council, which
shall hear him and decide on what action to take. This shall be
recorded in writing, with the original placed in the inmate's
file and a copy sent to the inmate. In the decision, a brief account
will be given of the nature of the offence, the inmate's statement,
and any disciplinary measure imposed."
The inmate, his relatives,
counsel or any person he designates may bring action, verbally
or in writing, with regard to the disciplinary measure, before
the Interdisciplinary Technical Council or the Directorate, either
directly or under the terms of article 25 hereof. Within a period
not exceeding 48 hours, the Council or the Directorate shall issue
a decision and communicate it to the Prison Director for enforcement
and to the inmate."
The offences or violations
committed by Federal District prison staff shall be punished in
conformity with the Federal Act on the Responsibilities of Public
Servants and the applicable criminal and employment provisions."
Article 12
Authorities
in charge of the prompt and impartial investigation of acts of torture;
their duties and procedures during the investigation
137. The Federal authority responsible for the prompt and impartial
investigation of acts of torture is the Office of the Attorney-General
of the Republic, through the Internal Control Unit, whose duties include
the following, as contained in the Office of the Attorney-General
Organization Act:
I. To survey the organization
and introduction of the integrated control system of the Office
of the Attorney-General, with a view to evaluating its substantive
functioning and the efficient and effective management of its
resources, as well as to avoiding any irregular conduct, informing
both the Attorney-General and the Office of the Comptroller and
Administrative Development of the outcome, as input into the Government's
evaluation and control system;
V. To receive, investigate
and resolve, in conformity with the norms and procedures established
by the Office of the Comptroller and Administrative Development
and the applicable legal regulations, any complaints and accusations
of misconduct by public servants;
VI. To apply the appropriate
penalties to the institution's public servants, under the terms
of the Federal Act on the Responsibilities of Public Servants;
VII. To draw up the
lists of charges related to any irregularities discovered in the
exercise of their duties ...
...
XIII. To supervise
and evaluate the implementation of punitive measures instituted
in response to inspections, and to enforce penalties incurred
by public servants for failure to observe recommendations, under
the terms of the Federal Act on the Responsibilities of Public
Servants.
...
XV. To order the temporary
suspension of public servants from their office, post or assignment
under the terms of the Federal Act on the Responsibilities of
Public Servants."
138. The Office of the Attorney-General is also the supervisory body
of last resort for all Federal agents of the Public Prosecutor's Office,
including the Office of the Government Procurator of the Federal District
and each of the State Procurators in charge of the Public Prosecutor's
Office in their jurisdiction.
Detention centres and prisons
139. Several bodies are in charge of supervising detention centres
and prisons:
140. The General Directorate for Prevention and Social Rehabilitation
set up a group of regional delegates to deal with complaints and to
supervise prisons. The delegates visit the institutions to conduct
their supervision whether or not a complaint has been made, meet with
inmates to investigate their or their families' complaints, and inform
the appropriate authorities.
141. One unit of the CNDH is the Third Inspectorate for Prison Affairs,
which handles all the complaints of the country's inmates, and which,
through the staff it sends to the centres to investigate complaints,
issues recommendations on violations of the inmates' human rights.
142. The State Human Rights Commissions have the same powers as the
National Commission within each State and also conduct supervision
of the centres whether or not a complaint has been made, meet with
inmates to investigate their or their families' complaints, and inform
the appropriate authorities.
Federal District
143. The General Directorate of Prisons and Social Rehabilitation
Centres, in articles 159-161 of the regulations of the prisons and
social rehabilitation centres of the Federal District, is defined
as a general supervisory body, mandated to supervise, on a continuing
basis, each of the prisons of the Federal District. It is made up
of representatives of the following:
(a) Assembly of Representatives of the Federal District;
(b) Directorate for Social Rehabilitation;
(c) General Directorate for Prevention and Social Rehabilitation;
(d) Office of the Government Procurator of the Federal District;
(e) General Legal Coordinating Office of the Federal District Department;
(f) Superior Court of Justice of the Federal District;
(g) Directorate of Medical Services of the Federal District Department.
144. The supervisory body visits prisons to check on their administration,
management and compliance with the Minimum Standards and the above-mentioned
regulations. Irregularities or complaints are brought to the attention
of the General Directorate and charges filed with the appropriate
authorities for any unlawful acts that might have been committed.
145. The Human Rights Commission of the Federal District investigates
the complaints of inmates in the prisons of Mexico City. For this
purpose, staff visit the prisons to investigate complaints, to supervise
and to issue recommendations if they find that the inmates' human
rights have been violated.
Ministry of National Defence
146. Following the establishment of the CNDH on 6 June 1990, this
Ministry issued instructions to the Office of the Military Procurator
to pay special attention to each and every complaint against it, and
a special unit was set up within that Office to deal with and follow
up on such complaints, in accordance with the form and legal terms
laid down by the CNDH.
147. In addition, the Office of the Comptroller-General and Inspection
of the Army and Air Force has complaint offices, which, if an unlawful
act is suspected, call on the Military Public Prosecutor's Office
to investigate, and if necessary, to institute proceedings against
anyone considered to be the likely perpetrator, and to file the relevant
charges with the competent judicial authorities, instructing them
to carry out the preliminary investigation conscientiously, thoroughly
and professionally, based on legal techniques, systems and logic.
Failing this, if there is insufficient evidence that an unlawful act
has taken place, or if the complaint is groundless, the case is transferred
to the Office of the Military Procurator for review, analysis and
opinion, after which if appropriate either the case is closed and
the outcome communicated to the interested parties, or else a further
inquiry is ordered.
Article 13
Right to complain
of torture and to be protected against ill-treatment or intimidation
as a consequence of a complaint
Statistics on complaints for the offence of torture
148. In the period between May 1992 and May 1993, torture was the
seventh most frequently cited form of presumed violations of human
rights, according to the CNDH, accounting for 246 cases, or 2.8 per
cent, of the total of 8,793 complaints received by that body; the
number of complaints of torture was down 43 per cent from the previous
year.
149. In the fourth year of its existence, from May 1993 to May 1994,
the CNDH received 141 complaints of torture, which represented 1.6
per cent of the 8,804 complaints submitted for presumed violations
of human rights, making it the tenth commonest form of violation.
From May 1994 to May 1995, complaints of torture fell by 68.1 per
cent compared to the previous year. Torture was alleged by complainants
in 46 cases received during that period and classified as presumed
violations of human rights.
150. The decrease in cases of torture should be viewed in the light
of both legislative reforms and the increase in the number of training
courses, which have resulted in qualitative progress in the manner
in which torture is dealt with; there is more emphasis on discovering
torture even when there are no physical traces, since torturers avoid
leaving any trace. Much progress has been made in training on how
to conduct expert examinations to prove psychological torture.
151. Above and beyond the mere numbers, Mexico is continuing its efforts
to ensure that legal and political penalties for those who commit
the offence of torture are applied in full. However, the authorities
still need to be made more aware of the importance of penalizing torture
vigorously and in accordance with the law.
152. Two basic issues come together: the impact of the CNDH's recommendations
on all sectors of society, and the political will of the authorities.
Much remains to be done in both respects, but there has already been
a major change in Mexican public life. Respect for human rights is
slowly acquiring greater importance in our institutions, especially
with regard to securing justice.
153. The Government of Mexico considers it possible to carry out,
comprehensively and responsibly, the functions of public security
and combating crime, while fully respecting individual guarantees.
Even though the sort of culture that fosters respect for individual
guarantees is still fragile, the rule of law has been strengthened
and a climate of respect for human rights is being developed.
154. This demonstrates the advances made by Mexico in fulfilling its
commitments under the Convention, although it has to be acknowledged
that much still remains to be done, since the objective is the total
eradication of torture.
Article 14
Legal and other
measures for obtaining fair and adequate compensation for the
victims of torture
155. The legal and other measures for obtaining fair and adequate
redress and compensation for the victims of torture are enumerated
in article 10 of the Federal Act to Prevent and Punish Torture, as
follows:
"A person found guilty
of any of the offences provided for in this Act shall have an
obligation to meet the legal advice, medical, funeral, rehabilitation
and any other costs incurred by the victim or his relatives as
a result of the offence.
He shall also have
an obligation to provide redress for the injury and to compensate
the victim or his dependants in the following cases:
(i) Loss of life;
(ii) Impairment of health;
(iii) Loss of freedom;
(iv) Loss of earnings;
(v) Unfitness for work;
(vi) Loss of, or damage to, property;
(vii) Impairment of reputation.
In determining the
relevant amounts, the court shall take account of the extent of
the injury caused.
The State shall be
obliged to provide redress for injury and damages under the terms
of articles 1927 and 1928 of the Civil Code."
156. Under the latter provision, by virtue of the responsibility of
the State in respect of ordinary jurisdiction and for the entire Republic
in respect of Federal jurisdiction, the State has a subsidiary obligation
to provide redress for the injury.
157. With regard to whether such measures are applicable both to nationals
and to refugees, there can be no distinction between them, since the
individual guarantees proclaimed in the Constitution protect both
nationals and aliens alike; therefore, the latter must also benefit,
since article 1 of the Constitution provides that all individuals
are entitled to constitutional guarantees.
158. With regard to physical and mental rehabilitation programmes,
it may be noted that there are programmes for taking care of the victims
of offences, which are implemented by the Office of the Government
Procurator of the Federal District, through the Office of the Deputy
Procurator for Human Rights and the General Directorate for the Care
of Crime Victims.
Article 15
Legal provisions
for ensuring that any statement made under torture shall not
be invoked as evidence
159. With regard
to legal provisions for ensuring that any statement made under torture
shall not be invoked as evidence, the Constitution provides as follows:
"Article 20. In all
criminal proceedings, the accused shall enjoy the following guarantees:
I. He shall be freed
on bail by the judge immediately upon request, so long as the
estimated amount of any compensation for damage and of any financial
penalties which may be incurred by the accused is guaranteed,
and so long as the case does not involve offences of such gravity
that the law expressly forbids the granting of bail.
The amount and form
of bail to be set must be within the means of the accused. In
circumstances determined by law, the judicial authority may reduce
the amount of initial bail.
The judge may revoke
the release on bail if the accused seriously breaches any of his
legal obligations arising from the trial;
II. He may not be
compelled to testify against himself. Any incommunication, intimidation
or torture is prohibited and shall be punished by criminal law.
A confession made before any authority other than the Public Prosecutor's
Office or the judge, or made before them but without the assistance
of counsel, may not be admitted as evidence;
III. The name of his
accuser, and the nature of and grounds for the accusation, shall
be made known to him in public hearing, within 48 hours after
being turned over to the judicial authorities, in order that he
may be clearly acquainted with the punishable act of which he
is charged and is able to respond to the charge, making his preliminary
plea during such hearing;
IV. If he so requests,
he shall be confronted with those who testify against him, in
the presence of the judge;
V. Witnesses and any
other evidence he offers shall be heard, and he shall be allowed
sufficient time according to the law for that purpose, and shall
be assisted in securing the appearance of any persons whose testimony
he requests, provided they are at the place of the trial;
VI. He shall be tried
in public by a judge or jury of citizens who are literate and
who live in the place and district where the offence was committed,
provided that the penalty for such offence exceeds one year's
imprisonment. In all cases, offences committed by means of the
press against public order or the nation's internal or external
security shall be tried by a jury;
VII. He shall be furnished
with any information from the records of the case he may request
for his defence;
VIII. He shall be
tried within four months in the case of offences for which the
maximum prison sentence does not exceed two years, and within
one year where the sentence exceeds that period, unless he requests
an extension for his defence;
IX. From the outset
of his trial he shall be informed of his constitutional rights
and shall have the right to an adequate defence, whether by himself,
by counsel or by a person in his confidence. If he does not wish
to or cannot name any counsel after having been requested to do
so, the judge shall appoint one. He shall also be entitled to
have his counsel present in all trial proceedings, and the latter
shall be obliged to appear as often as required; and
X. In no event may
imprisonment or detention be prolonged for failure to pay counsel's
fees or for any other financial obligation arising from civil
liability or any similar reason. Nor may preventive detention
be prolonged beyond the maximum period set by law for the offence
with which he is charged. Any prison sentence he may be required
to serve shall include the amount of time already spent in detention.
The guarantees provided
under paragraphs V, VI and IX shall also be observed during the
preliminary investigation, in accordance with the terms, conditions
and limitations prescribed by law; the provisions of paragraphs
I and II shall not be subject to any condition. In all criminal
proceedings, the victim of an offence or aggrieved party shall
be entitled to legal assistance; to reparation of damage, where
appropriate; to assistance by the Public Prosecutor's Office;
to emergency medical care whenever required; and to any other
benefit stipulated by law."
160. Article 225, paragraph XII, of the Penal Code for the Federal
District in respect of Ordinary Law and for the entire Republic in
respect of Federal Law states that the following constitute offences
against the administration of justice committed by public servants:
"XII. Compelling the
accused to testify against himself, using incommunication, intimidation
or torture, ... ."
Article 16
Measures to
combat other acts of cruel, inhuman or degrading treatment
or punishment
161. Measures to prevent ill-treatment of persons who for whatever
reason are subject to the administration of justice are regulated
by article 20, paragraph II (see para. 159 above), and article 22,
paragraph 1, of the Constitution, which states that:
"Punishments by mutilation
and infamy, branding, flogging, beating with sticks, torture of
any kind, excessive fines, confiscation of property and any other
unusual or overwhelming penalties are prohibited."
162. Article 225, paragraph XII, of the Penal Code classifies the
following as offences against the administration of justice committed
by public servants:
"Compelling the accused
to testify against himself, using incommunication, intimidation
or torture, ... ."
163. In addition to the constitutional provisions against cruel, inhuman
or degrading punishment, article 4 of the Federal Act to Prevent and
Punish Torture, which is applicable throughout the national territory
in respect of Federal Law and in the Federal District in respect of
Ordinary Law, sets forth the following:
"Anyone committing
the offence of torture shall be liable to 3 to 12 years' imprisonment,
200 to 500 days' fine and disqualification from any public office,
post or assignment for up to twice the length of the term of imprisonment
imposed. For the purposes of determining the amount of the fine,
reference shall be made to article 29 of the Penal Code for the
Federal District in respect of Ordinary Law and for the entire
Republic in respect of Federal Law."
164. In addition to the legislation described above to prevent cruel,
inhuman or degrading treatment or punishment, the following measures
may be considered:
(a) Increasing the penalty currently allowed by law for anyone who
commits unlawful acts of cruel, inhuman or degrading treatment or
punishment;
(b) The Office of the Attorney-General of the Republic is increasingly
insisting on the strict application of laws, agreements and circulars
to ensure that its public servants observe the highest standards of
conduct;
(c) Training the Office's staff, through regular courses and professional
guidance, so as better to serve the enforcement and dispensation of
justice with due respect for human rights.
List of annexes*
1. Restitution, compensation and rehabilitation of the victims of
grave violations of human rights, published in the Diario Oficial
de la Federación, 10 January 1994.
2. Recommendation 98/95 of the National Human Rights Commission, addressed
to the Governor of the State of Jalisco and to the Attorney-General
of the Republic.
3. Institutional Code of Conduct and Ethics, adopted in 1995.
4. General military prison regulations.
5. Recommendation 73/91 - Case of Martín Arroyo Luna et al.
6. Recommendation 42/92 - Case of Mr. William Darío Kerguelen Pinilla.
7. Recommendation 3/90 - Case of Jorge Argáez Pérez.
8. Recommendation 29/90 - Case of the People of Aguililla, Michoacán.
9. Recommendation 1/91 - Case of Pedro and Felipe de Jesús Yescas
Martínez.
10. Recommendation 15/91 - Case of Ricardo López Juárez.
11. Recommendation 50/91 - Case of José del Carmen Llergo Totosaus.
* These documents may be consulted, in the Spanish version received
from the Government of Mexico, in the records of the United Nations
Centre for Human Rights.
