RIGHT TO PERSONAL FREEDOM
212. The IACHR analyzed issues related to the right to personal freedom during its on site visit to Mexico and it has continued to receive information from various sources since then. More specifically, while the Commission was in Mexico, it received various reports of arbitrary arrests and poor prison conditions. The problem of prisons and detention centers is a special concern of the IACHR, in view of their impact on the fundamental rights of human beings. Although the Commission was unable to visit the prisons, essentially for reasons of time, the situation in those establishments will be discussed in this chapter, on the basis of reports received and information provided by specialized agencies and organizations.
I. LEGAL FRAMEWORK
A. International law
213. The right to personal freedom is enshrined in articles 6, 7, and 22 of the American Convention. Article 6 prohibits slavery and servitude, and states that no one may be compelled to perform forced or compulsory labor. For its part, Article 7 establishes the right to personal freedom, and stipulates that no one may be deprived of freedom except for the reasons and under the conditions provided for by law. It also establishes the rights of a person who is deprived of freedom. Also, Article 22 of the American Convention establishes the right of free movement and residence and stipulates that all persons are entitled to move freely within and depart freely from any country.
B. National law
214. Articles 1, 14, 16, 17, 18, and 20 of the Constitution guarantee the right to personal freedom. The Commission has already reviewed in the previous chapter of this report the rights enshrined in these articles, with the exception of those set forth in articles 1 and 18.
215. Article 1 of the Mexican Constitution states that every individual shall enjoy the guarantees provided in the Constitution and that these guarantees may be neither restricted nor suspended, except in the circumstances and under the conditions established therein.
216. The pertinent exceptions to this provision are set forth in articles 33 and 29 of the Constitution. The latter provides that, in the event of an invasion, a serious breach of peace or any other situation that poses a threat of danger or conflict to society, the President, with the agreement of the heads of the various State Secretariats, the Department of the Federal District, and the Office of the Attorney-General of the Republic, and subject to the approval of Congress or of the Permanent Committee where the Congress is in recess, may suspend throughout the country or in a particular part thereof any guarantees which may constitute impediments to the rapid and effective resolution of the situation. Such suspension shall, however, be for a limited period of time and shall take the form of general precautionary measures without being directed to any specific individual. If such suspension is declared when Congress is in session, the Congress may grant such powers as may be necessary for the Executive to deal with the situation. Where Congress is in recess, it shall be convened for the purpose of granting the aforementioned powers.
217. This norm has been interpreted to mean that the Permanent Committee may approve the suspension of guarantees, but it may not grant special powers to the Executive, which only Congress is authorized to do.(36) In any event, this norm should be interpreted on the basis of the parameters set out in article 27 of the American Convention. (37)
218. With regard to limitations and restrictions on personal freedom, article 18 of the Constitution provides that only those persons accused of crimes that carry a physical punishment (pena corporal) shall be liable to preventive detention. In other words, a person may be deprived of his personal freedom only if he is accused of a crime that carries a prison sentence.
II. ILLEGAL DETENTION
219. This is one of the most serious problems that occur in Mexico. Reports of illegal detention are a common occurrence in Mexico and directly involve agents of the country's various police forces: federal or state judicial police, preventive police, etc. However, the most delicate aspect of the problem is that this type of human rights violation often marks the beginning of a chain of violations of other rights, which generally includes the right to personal integrity and legal guarantees. The relationship between illegal detention and the violation of an individual's personal integrity and legal rights is not a function of circumstance. Rather, it is the logical consequence of the relationship of dependency that is often found between the administrative and judicial authorities.
220. In this connection, the Commission has noticed the great concern among civilians in Mexico over the repeated nature of these incidents. This perception stems from complaints of such abuses, received with increasing frequency by the IACHR, and from reports provided by victims and non-governmental human rights organizations during the Commission's on site visit to Mexico in July 1996. Thus, for example, IACHR has received reports accusing the Mexican State of the arbitrary arrest of Evaristo Dorado Almanza and Blas Dorado Almanza by the judicial police of the state of San Luis Potosí. It has also received a report that agents of the judicial police of the Federal District illegally arrested Manuel Manríquez San Agustín.(38)
221. The IACHR stresses the importance of the State's responsibility to wage an effective struggle against crime, as a right of citizens. Nevertheless, the State's efforts must be carried out within a framework of respect for human rights. The Commission also wishes to express its deep concern over the abusive practices adopted by certain officials of the Mexican judicial police, and therefore recommends that the Mexican State review the means employed in order to ensure that all activities to combat crime are carried out in accordance with the law and to guarantee the tranquility of Mexican citizens. In this regard, it is only through a proper restructuring and re-educating of police personnel will it be possible to restore the necessary but absent faith of citizens in the security forces. In referring to "the Mexican police," the State indicated that "it had undertaken a series of measures to provide instruction and training for them, with a special emphasis on respect for human rights." The IACHR appreciates this initiative, and it will be very interested in examining the results and the impact of that initiative on the problems referred to above.
III. THE PRISON SYSTEM
A. Overpopulation and overcrowding in prisons
222. The problem of overcrowded prisons seems to be a virus that plagues all of the so-called third world countries, and Mexico is no exception. In Mexico the prison population is now 116,000 without a sufficient number of penitentiary facilities to adequately house them. In the State's observations on this report, it had the following to say:
Overpopulation is at 16%. There are some prisons with serious problems of overcrowding, but that is far from representing the general situation in the 442 prisons existing in the country. The Mexican State has acknowledged these shortcomings, and despite the budget restrictions resulting from the 1994 financial crisis, it has been conducting a program to build new prisons and detention centers.
223. Overcrowding has devastating effects on prisoners. Communal living becomes difficult when an individual does not have a minimum of personal living space. While this is true of any community of people, it is particularly true for the closed world a prison population. Deprived of the fundamental right to freedom, which is in itself a harsh punishment, prisoners require certain minimum conditions to make their incarceration tolerable.
224. The lack of space and the overcrowded conditions make a dignified existence impossible. Packed closely together, prisoners do not all have their own beds, lack space for recreation and relaxation and for eating, live in unsanitary conditions and have no opportunity for privacy.
225. Prison overcrowding may be seen on the one hand, as a consequence of the absence of modalities of punishment other than incarceration, despite the fact that the criminal code provides for alternative forms of punishment. On the other hand, data obtained by the National Human Rights Commission indicate that because of the absence of a prompt and expeditious justice system, most prisoners must wait an average of a year and 10 months before they are tried and sentenced in a court of first instance.
226. Prison overcrowding is due to three main factors: excessive use of preventive detention and of detention as punishment; the backlog of cases awaiting trial; and insufficient operational capacity.
227. Penal law is the most drastic reaction of the State, particularly sentences that entail depriving persons of their freedom, which, in addition to affecting (and justifiably so) one of a person's most prized rights, usually leaves scars that are impossible to heal. Use of this punishment should therefore be subject to strict safeguards. It is an area in which there is need for rationality, reason and proportionality.
228. The IACHR has noted inconsistencies in the approach to penal law in Mexico. Certain acts have been unjustifiably characterized as crimes and excessive or inappropriate sentences provided, which in turn lead to an intolerable aggravation of social inequality and to jails that are overcrowded with prisoners, the vast majority of whom are from the most disadvantaged sectors of society. By way of example, we may cite the crimes of loitering and vagrancy (malvivencia), for which unemployed persons and beggars are punished. This means that persons who are in reality victims of an undesirable social situation are characterized as criminals. The underlying approach here is to punish the person instead of the crime. In other words, persons are punished not for what they do, but for who they are, which is a violation of the principle of legality in criminal justice.
229. Over half of prisoners in Mexico have not been convicted and are in preventive detention. Although the new reforms of the criminal code will benefit a large number of prisoners, prisoners awaiting trial constitute one of the biggest problems in the Mexican prison system.
230. According to the National Human Rights Commission, the average time spent in prison by an accused person who is to be tried in a court of first instance is a year and ten months. The Commission concluded that not only was there widespread violation of the principle of legality but also that preventive detention centers were in reality prisons for persons who have not yet been found guilty of crimes. The Commission also reported that the average time spent in prison by persons awaiting trial in appellate courts was two years and five months.
231. Moreover, the increase in the number of judges in criminal courts has not kept pace with the rate of population increase and poor defendants nearly always lack prompt and effective legal defense. Even though any person who is unable to pay for a private defence attorney is always assigned a public defender, the latter usually takes little effective action, because of the lack of adequate training, low salaries and excessive workload.
232. The inadequate capacity of prison facilities is a serious and complex problem in Mexico. The places housing persons who are serving prison terms must be suitable for that purpose and many of them today are in a deplorable condition. Suitability must be based on the idea of the human dignity of the prisoners. A decent prison is one that provides enough space for privacy, intimate relationships, recreation, sports, work, hygiene, education, and the other activities that are essential to human life.
B. Preventive incarceration and detention
233. Another reason for the serious overcrowding in Mexican prisons is the widespread recourse to preventive detention for accused persons. The IACHR has established that preventive detention as a norm of general application in criminal cases is contrary to the provisions of the Convention, since it violates the right to personal freedom and the presumption of innocence.(39) Hence the current legal and constitutional system, which restricts preventive detention to cases of crimes that carry prison sentences (Article 18), neither promotes nor protects these rights. Preventive detention should therefore be limited to particular cases where the specific situation and a well-founded risk of a threat to society and to public order make it appropriate. In all cases, however, preventive detention must be accompanied by a streamlining of the criminal justice system and an improvement in the conditions at detention centers, together with a periodic review of the detention. In that connection, Dr. Sergio García Ramírez, citing Beccaria, has said that:
…since being deprived of freedom constitutes punishment, it cannot, except in special circumstances, precede sentencing. Preventive detention in this sense is merely holding a person in custody while that person is being tried; and since such custody in fact constitutes punishment, its duration should be as short and as painless as possible. (40)
234. The effective enjoyment of the benefits of conditional freedom that are enshrined in Mexican legislation are an important means of reducing the high number of persons held in preventive detention in Mexico. Article 20 of the Constitution grants accused persons the right of conditional release on bail and in setting the amount of bail the court must take into account the personal circumstances of the accused and the gravity of the crime.
235. In referring to the "personal circumstances" of the accused as an individual guarantee for the fixing of bail, the Constitution is seeking to protect the accused and expects the court to set bail in an amount that is directly in proportion to the poverty or wealth of the accused and to the relative seriousness of the crime committed. It is a protective provision to prevent citizens from being held for more than 72 hours in a preventive detention center (Article 19 of the Constitution).
236. Article 18 of the Mexican Constitution requires the criminal justice system to provide for the social readaptation of offenders, based on work, job training and education. This means that not only must prisons be free of abuse and ill treatment, but that the guidelines established by the First United Nations Congress on Prevention of Crime and Treatment of Offenders should be followed. According to these guidelines "the purpose of and justification for sentences of imprisonment are in essence to protect society from crime." This objective can be attained only if the time spent in custody is used to ensure that the offender, once released, will obey the law and through appropriate treatment in prison, which means that overcrowding must be eliminated.
237. Since each offender is a unique human being different from everyone else, the treatment of prisoners must be individualized. This requires classification based on a clinical, criminological diagnosis, which naturally means that medical, psychological, psychiatric, pedagogical and other evaluations must be carried out.
238. The IACHR would like to highlight the important work performed by the third Inspection Unit [Visitaduría] of the National Human Rights Commission, which has a specific program to cover the situation in penal institutions and prisons. According to the information provided by the Mexican State in its observations, that program produced the following results from May 1996 to May 1997:
… 21 recommendations on prisons and penal institutions were issued and addressed to various officials at different levels of government, and 30 supervisory visits were made to 27 adult detention centers in 15 federal institutions, in addition to 45 visits to follow up on recommendations on penitentiary or psychiatric matters made to detention centers or social rehabilitation and prevention offices in 17 federal institutions.
239. Despite the importance of the recommendations made by the CNDH, the IACHR does not have any information regarding compliance with them, or of the specific results obtained.
240. The National Human Rights Commission has indicated in various of its reports that work and meaningful activity are some of the aspects in which the Mexican prison system is weak, with the exception of a few detention centers that have adequate and satisfactory work activities.
241. According to the National Human Rights Commission, repeated complaints have been received from various detainees that, in those centers where it is possible to work, prisoners are not being paid for the work that they do, even though the law requires that they be paid the minimum wage for their work.
242. Because of the severe restrictions on freedom of movement to which prisoners are subject, prisons should have adequate, around-the-clock medical services to handle any situation that may arise. These services should include suitable clinical facilities, medicines which at a minimum cover the basic needs of patients, doctors and nurses and other essential health care resources.
243. Reports by non-governmental human rights organizations and by the National Commission itself indicate that medical, psychological and social work services (where these exist) are taxed beyond their capacity. The total lack of such services in some establishments and the overcrowding in others create a situation that constitutes a systematic violation of the rights of prisoners. In some cases the lack of medical care has had grave consequences, including the loss of life.
244. According to the study by the National Commission entitled "The real situation in Mexico's prisons", some prisoners who appeared to be mentally ill were observed in 75 per cent of prisons. In eight prisons, these inmates received no specialized treatment, in 13 of them they were part of the general prison population and in 9 of them there was no prison psychiatrist.
F. Disciplinary system
245. Temporary solitary confinement is used as a disciplinary measure in the Mexican prison system. The most frequent irregularities observed in the application of this measure relate to the conditions in the punishment area and the duration of the punishment.
246. As regards the procedure for applying disciplinary measures, prison authorities are committing various human rights violations because of their failure to convene the Technical Interdisciplinary Council to review the case in question with a view to determining the period of solitary confinement, their failure to clearly inform the inmate being thus punished of the reasons for his solitary confinement the duration of the confinement, failure to permit prisoners to object to the punishment imposed and to appeal it and denial of family and conjugal visits. Prisoners in solitary confinement are sometimes denied three meals a day, permission to go to the bathroom or to go outside and medical services. Prisons have also been found where the persons in solitary confinement are kept naked.
247. On the subject of confinement, article 115 of the Regulations on Prisons and Social readaptation Centers of the Federal District states that in both prisons and preventive detention centers, there should be high-security modules for "those prisoners who require specialized rehabilitation treatment." However, it fails to define what is meant by "specialized rehabilitation treatment".
248. Article 156 of the above mentioned Regulations indicates that these high security modules are also intended to house high-risk prisoners who disturb the peace or endanger the security of the prison.
249. Even though article 157 stipulates that such medical, psychological, psychiatric, educational, cultural, recreational sports, and social work as are needed to promote social readaptation should be provided in these modules, these services are still not available.
250. There is no reason to have high-security modules "regardless of the facilities that are available in them" in preventive detention centers, where accused persons should be treated in a manner consistent with the presumption of their innocence. The information provided by the National Commission itself indicates that this disciplinary measure is abused.
251. In articles 147 and 148 of the Regulations on Prisons and Social readaptation Centers in the Federal District, which specifies which acts constitute infractions of the regulations the disciplinary measures that are allowed, we found it surprising that the applicable disciplinary measures are in some cases greatly disproportionate to the infractions committed. This situation is further aggravated by the fact that certain infractions may result in the application of more than disproportionate disciplinary measure. For instance, being a nuisance or using vulgar or insulting language to the relatives or visitors of prisoners or in the presence of minors visiting the institution, or using vulgar or offensive language to fellow inmates or to the staff of the institution (sections IX and X of article 147) is punishable by a warning, suspension from participation in sports activities for a period of no more than thirty days, suspension of visitation rights, except for attorney's visits, transfer to another dormitory or to another prison, or, in the case of use of vulgar language to fellow inmates or staff, temporary solitary confinement for up to two weeks. Similar penalties are provided for disturbing the visits of other prisoners, which may include the following: suspension of privileges for up to thirty days, suspension from participation in sporting activities for up to thirty days, suspension of visits except for attorney's visits for up to four weeks, and temporary solitary confinement for up to fifteen days.
252. These measures are in contrast to those imposed for attempted escape, for which the punishment of temporary solitary confinement is also applied. However, the penalty for endangering an inmate's own security or the security of other inmates or of the institution is an official warning and suspension from sports activities. Our concern is heightened by the fact that disciplinary measures are imposed without complying with the provisions of articles 149, 150, 151 and 152, which state that disciplinary measures may be imposed only after receiving the opinion of the technical interdisciplinary council, which that council issues after having heard the prisoner's arguments in his defense. Moreover, it would appear that article 152, which entitles prisoners, their families or their attorneys to object to the measure imposed, is a dead letter.
253. According to the National Human Rights Commission's "proposal and report on the Mexican prison system", 40 per cent of the prison population finds that complaints of ill-treatment to the authorities result in insults, beating or confinement, or else the complaint is simply ignored.
254. The IACHR is also of the opinion that it is the sole and exclusive purview of the judicial authorities to impose punishment that restricts personal freedom, as provided for in article 50 of the Mexican Constitution. Therefore, the power of prison officials to discipline prisoners through solitary confinement for up to thirty days may --under the circumstances of a specific case-- result in the violation of articles 8 and 25 of the American Convention. In any event, the disciplinary action taken against inmates must be provided for in the applicable legislation and be governed by the norms of due process; also provided for in the law must be the possibility to subject to judicial review the decisions to impose such punishment.(41)
255. Here, mention should be made of the so-called "Maximum Security Prisons", which are governed by the Regulations governing Federal Social readaptation Centers. Even though existing federal centers are maximum-security prisons, the regulations do not make specific reference to this fact. The regulations refer to manuals and organizational and procedural instructions for the proper functioning of these centers,(42) of which the general population is not yet aware, despite the fact that the second transitional article of those regulations states that the Secretariat of the Interior, acting through the Social readaptation and Prevention Department, shall issue manuals and organizational and operational instructions based upon and consistent with these regulations within no more than one month from the date of publication of the regulations (August 30, 1991).
G. Prison regime
256. The mixing together of convicted persons and persons awaiting trial, adults and minors, men and women, is a situation observed in many Mexican prison institutions. In view of the limited budgetary resources and the widespread recourse to imprisonment as a form of punishment, prisons are overcrowded and most of them are unable to sort inmates into groups according to their characteristics.
257. It should be noted that article 18 of the Mexican Constitution itself provides that persons awaiting trial should be kept completely separate from convicted prisoners. And yet accused persons who are awaiting trial are detained in high-security federal prisons. What is more, the Under-Secretariat for Civil Protection and Social readaptation has reported that prisoners who had simply been guilty of participating in prison protests were transferred to this type of establishment.
258. In accordance with article 14 of the Regulations governing Federal Social readaptation Centers, persons entering these centers as inmates are to be selected on the basis of personality studies carried out by the Interdisciplinary Technical Council, in accordance with the relevant regulation.(43)
259. Similarly, article 18 of the Constitution provides that women must be imprisoned in facilities that are separate from those housing men. However, this provision has not been fully observed in practice and female inmates are incarcerated in a number of male institutions. This, as has been reported, results in abuses and undesirable consequences.
H. Outside contact
260. Among the principles applicable to the treatment of prisoners that are deemed to be essential to their rehabilitation is the right to maintain contact with the outside world. Despite this, prisoners in Federal Rehabilitation Centers complain of abuse and ill treatment in connection with visits and restrictions on visits. Persons who are not family members or the attorneys of prisoners have been denied entry. Persons are also denied entry if their names do not appear on the prisoner's "visitor's list". This is so despite the fact that article 79 of the relevant regulations states that "prisoners shall be entitled to maintain, strengthen, and, where applicable, re-establish relationships with their families, friends and acquaintances. To this end, the authorities of prison establishments are required to adopt the appropriate measures, depending on the needs of the inmate."(44)
261. In addition, in its study entitled "The real situation in Mexico's prisons", the National Human Rights Commission noted that 35 per cent of prisons did not even have a telephone for general use by prisoners.
I. Illegal power groups
262. Corruption, inadequate resources and lack of planning have led to frequent situations in which groups of prisoners unlawfully take over management and command functions in what is known as self-government by prisoners. Such situations are inconsistent with the principle of due authority and with the conditions of equality among prisoners that should exist, giving rise to numerous abuses.
263. These power groups are made up of persons (inmates) who have the economic means or the support of certain officials and who recruit other prisoners. Since the latter are unable to find well-paid work within the prison institution, they prefer to work for another prisoner, even though the activity might be illegal (e.g. selling drugs, prostitution, etc.).
J. Corruption and abuse of power
264. The phenomena of corruption and abuse of power are not absent from the Mexican prison system. Prisoners or their families are frequently compelled to pay for basic services that should be provided free of charge: conjugal visits, food, cleaning services, communication with the outside world, etc. This creates a situation that is blatantly unjust, in which there are privileged prisoners who buy everything, including the servitude of other prisoners and even of guards and officials.
265. Corruption and influence peddling are found specifically in certain cases involving control of the sale of alcohol and drugs, which are often reported to the authorities without any concrete action being taken.
IV. PERSONALITY STUDIES AND THE PRESUMPTION OF DANGEROUSNESS
266. This section will examine the provisions common to both the Penal Code and the Law on Guardianship Councils for the punishment of adults and minors. Both sets of laws provide for the "presumption of the danger to society" posed by those persons who fall within their competence, thereby "assuaging" the conscience of that part of the population which has not been arrested.
267. The presumption of dangerousness is rated on a scale that takes into account the degree of danger posed to society and classified as "high, moderate and minimal". The rating is based on a series of multi-disciplinary tests that are carried out on the alleged author of the crime and which are known as a "personality profile".
268. According to the principles of "clinical criminology", these tests are meant to establish the personality of the author of the crime at the time that the unlawful act was committed. But to do so, it is first necessary to establish with certainty, in a criminal trial, who the author was and then to examine the exogenous and endogenous circumstances that affected him at the time the crime was committed. In Mexico, the personality study is carried out on persons against whom criminal proceedings have just been initiated.
269. The Mexican Constitution establishes that "court proceedings shall be initiated only in respect of the crime or crimes that are alleged in the warrant of arrest" (article 19, second paragraph) and clearly excludes the possibility of basing such proceedings on any other elements and certainly not on the "personality" of citizens. Consequently, "personality studies" as a means of incriminating or of increasing criminal responsibility violates the right to freedom from "ex post facto" laws enshrined in article 9 of the American Convention. Nevertheless, legal definitions have been taken to such extremes that article 256 of the Criminal Code for the Federal District and the Law on Guardianship Councils for Minors of the Federal District (article 2) also extend to all persons under the age of 18 years, on the grounds that they "are minors." In these cases, it is sufficient that they are presumed to have a tendency to cause harm, even though they may have never exhibited any such behavior before.
270. Article 18 of the Constitution states that "the governments of the Federation and of the states shall organize the penal system in their respective jurisdictions based on work, job training and education as vehicles for the social readaptation of criminals".
271. When, in accordance with universal standards, the Constitution speaks of "penal system" and "social readaptation of criminals", it is referring to prisons in which sentences are served and to persons who have already been found guilty and sentenced and who are referred to as "criminals". Other persons in detention but who have not been convicted are referred to as "the accused or the alleged authors of a crime" and these are not referred to in the above-mentioned article 18.
272. Consequently, a "personality study" cannot be used to provide pseudo-scientific justification for the assertion that an accused person is a danger to society, so that he can be taken out of the social group of "good citizens", have a label attached to him and then be brought defenseless before a judge, thereby giving the judge all the more reason to convict him and providing additional justification for the decision of the court. This is a violation of human rights and in particular of the principles of freedom from "ex-post facto" laws, the presumption of innocence and judicial guarantees.
273. The Law on "minimum standards for the social readaptation of convicted persons", which was published in the Official Gazette of the Federation on May 19, 1971, thus provides that a personality study may give greater weight to the accusation and should be initiated as soon as the person becomes subject to criminal proceedings, in which case a copy of the study shall be submitted to the court having jurisdiction over the accused.
274. This rule, which violates "the principle of the presumption of innocence" because the guilt of the suspect has not yet been proven, fails to follow established legal practice, since the law concerns the "social readaptation of convicted persons", but is applied also to accused persons awaiting trial.
275. Moreover, article 52 of the Penal Code in force in the general law of the Federal District and as part of federal law throughout the Republic states as follows:
For the purposes of this article, the court shall request expert opinions to determine the personality of the accused and other information that may be relevant to the determination of punishment.
276. This rule therefore requires a personality study to be made of accused persons during the trial phase, so that judges will have information to use in the determination of the appropriate sentence. This also concerns the institution of preventive detention, since it is when an accused is so detained that the personality study is conducted and not in the prison where sentences are served, as required by the provision of the law which refers to convicted persons.
277. An attempt is thus being made to legitimize personality studies so that pseudo-technical information can be used to justify putting the label of "dangerous to society" on any person who for any reason enters the misnamed (because of their practices) "social readaptation" centers, even though that person has not been found guilty and may have nothing to do with the acts with which he is charged. In any case, as was stated, the practice of "social dangerousness evaluation" is openly violative of the American Convention.
B. Persons under 18 years of age
278. The presumption that a minor represents a danger to society is expressed in the law on guardianship councils, which was published in the Official Gazette of the Federation dated August 2, 1984, as follows:
Article 2. The Guardianship Council shall take action in accordance with the law when minors violate criminal laws or the regulations of the police and of good government, or when they exhibit any other type of behavior that gives rise to a well-founded presumption of an inclination to cause harm to themselves or to their families or society, and therefore require preventive action by the Council." (emphasis added)
279. Unfortunately, the fact that minors may be brought before the Guardianship Council for the reason mentioned in the previous paragraph, is an extremely serious matter which puts minors in a situation of juridical insecurity and inferiority before the law and stigmatizes them from the very moment that the determination is made that they are potentially dangerous.
280. Any person may be potentially dangerous and exhibit behavior that may lead to a presumption of some dangerousness, but that does not mean that they will necessarily commit a criminal act. Criminal law should punish criminal acts or perhaps even unsuccessful attempts to commit such acts, but should not punish behavior or presumptions of certain types of behavior.(45)
281. Being a "danger to society" is a subjective concept held by the person making the judgment and cannot be effectively measured or predicted. It remains a hypothesis and should not ethically be attached to a person. In such cases, no specific behavior needs to be exhibited in order to be accused. It therefore constitutes a violation of human rights and a violation of the principles of freedom from "ex post facto" laws, presumption of innocence, right to a fair trial and personal freedom, all of which are enshrined in the American Convention.
282. In light of the situation reviewed above, the IACHR makes the following recommendations to the Mexican State:
283. To review the procedures used by police organizations with a view to enhancing the effectiveness of their efforts to combat crime and to ensure that such activities are carried out in accordance with the law.
284. To adequately regulate the principle of freedom of the accused during the trial phase, providing for specific exceptions in accordance with the guidelines laid down by the IACHR.
285. To expand the scope of application of sentences that are alternatives to imprisonment, adopt the measures that are required to speed up trials, and increase the capacity of prison establishments.
286. To put an end to the confinement of prisoners for up to 30 days as a disciplinary measure; and to ensure that disciplinary measures be subject to the principle of legality and de process guarantees.
287. To implement the legislative provisions intended to separate persons awaiting trial from convicted criminals, as well as minors from adults, and women from men.
288. To adopt measures aimed at guaranteeing the conditions of prison establishments and the treatment of inmates, including the right of inmates to maintain contact with the outside world.
289. To duly investigate complaints of corruption and influence peddling, which are alleged to occur inside prisons, to punish those found guilty and to take the necessary steps to correct such situations.
290. To discontinue the practice of carrying out studies to determine the degree of danger posed by an individual and the so-called "personality profiles", which are a violation of the American Convention.
36. According to Dr. Carpizo, op. cit., the special powers referred to in this article are legislative powers, as well as broader powers in the administrative field.
37. Article 27 of the American Convention establishes that:
1. In time of war, public danger, or other emergency that threatens the independence or security of a State Party, it may take measures derogating from its obligations under the present Convention to the extent and for the period of time strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law and do not involve discrimination on the ground of race, color, sex, language, religion, or social origin.
2. The foregoing provision does not authorize any suspension of the following articles: Article 3 (Right to juridical personality), Article 4 (Right to life), Article 5 (Right to humane treatment), Article 6 (Freedom from slavery), Article 9 (Freedom from ex post facto laws), Article 12 (Freedom of conscience and religion), Article 17 (Rights of the family), Article 18 (Right to a name), Article 19 (Rights of the child), Article 20 (Right to nationality), and Article 23 (Right to participate in Government), or of the judicial guarantees essential for the protection of such rights.
38. Cases 11.479 and 11.509, respectively. The Commission is processing both.
39. IACHR Report Nº 2/97 on Argentina. In this report the IACHR also stated that the prolonged preventive detention of a person be justified only for legitimate reasons. It stated its conviction, however, that in all cases the universal principles of presumption of innocence and respect for individual freedom must be taken into account. The legitimate reasons referred to by the IACHR in its report are: the presumption that the accused has committed a crime, the risk of flight, the risk that new crimes will be committed, the need to investigate and the need for collusion, the risk that pressure will be brought to bear against witnesses, and the preservation of public order.
40. Sergio García Ramírez, "Manual de Prisiones," third edition, p. 524, Editorial Porrúa, México, 1994.
41. The United Nations General Assembly approved in 1988 a series of Principles on Detention. Principle No. 30 provides as follows:
1. The types of conduct of the detained or imprisoned person that constitute disciplinary offences during detention or imprisonment, the description and duration of disciplinary punishment shall be specified by law or lawful regulations and duly published.
2. A detained or imprisoned person shall have the right to be heard before disciplinary action is taken. He shall have the right to bring such action to higher authorities for review.
United Nations, Body of Principles for the Protection of All persons under Any Form of Detention or Imprisonment, General Assembly Resolution 43/173 of 9 December 1988. For its part, the European Court of Human Rights has held that "disciplinary actions which are punishments normally associated with criminal law cannot be imposed without a procedure which guarantees the fair-trial rights of Article 6 of the European Convention". Also, the United Nations Centre for Human Rights prepared a "Handbook of International Standards relating to Pre-trial Detention". Chapter XIII of the Handbook, under the title "Use of discipline and restraints in pre-trial detention" states that "arbitrariness of discipline in the place of dentition…can be reduced by setting clear rules of conduct with specified disciplinary measures for breaches and making both detainees and institutional personnel aware of those rules." In greater detail, the Handbook establishes "practical guidelines", of which the following is especially relevant for the analysis of this section:
139. Minor matters of discipline --if no danger to life, security or property exists-- should be handled discreetly and routinely. For minor violations of disciplinary rules, detainees should be subject to minor sanctions, not more severe than reprimands, temporary loss of privileges, or temporary confinement for a brief period in their cell. Records should be kept of which staff member imposed a disciplinary sanction and what sanction was imposed. Such records should be made available to officials responsible for oversight of the place of detention.
United Nations, Human Rights and Pre-trial Detention: A Handbook of International Standards relating to Pre-trial Detention, United Nations Centre for Human Rights, Crime Prevention and Criminal Justice Branch, New York and Geneva, 1994, págs. 31 y 32.
42. Articles 5, 14, 18, 19, 32, and 60 of the Regulations on Federal Social Rehabilitation Centers.
43. Members of NGOs were of the view that some 150 of the persons detained in those centers should not be there. In that connection, the Coordinator of Federal Social Rehabilitation Centers has admitted to visitors that the system of high-security prisons had been abused, but that it was not his responsibility, since the state prison directors and judges sent the prisoners there. According to the law and the practice in the Mexican prison system, it is for the administrative authorities to determine the place where a person who is deprived of his freedom is to be incarcerated.
44. A group of attorneys initiated amparo proceedings in relation to the declaration and implementation of the order prohibiting visits to detention centers other than visits by the defense attorney or family members of inmates. The attorneys indicated that they visit prisons regularly, since their activities include the defence of human rights and that the order to prevent entry by persons who are not attorneys or family members of the prisoners raises questions about the humane treatment of prisoners, in view of the numerous recommendations made by the National Human Rights Commission on the prison system. The action of amparo was based not only on the provisions of the Constitution but also on article 10 of the International Covenant on Civil and Political Rights and on article 5 of the American Convention on Human Rights. The District Court and later the Collegiate Court [Tribunal Colegiado], (upon reviewing the case) ruled that no violation of the Covenant and of the American Convention on Human Rights took place by reason of the punishment of prisoners without due regard for their status as persons who had not been convicted and who were therefore presumed to be innocent, and the denial of the freedom of the attorneys to work in the field of human rights, in view of the fact that violation can be argued not on the grounds of infringement of the International Covenant on Civil and Political Rights and of the American Convention on Human Rights but on the grounds that such action violates some other rule set forth in the Federal Constitution.... Amparo 172/93 filed in the Fourth Administrative District Court, Review R.A.84/94. (Underlining added).
45. Dr. Sergio García Ramírez (currently a judge in the Inter'American Court of Human Rights) referring to the protection of society, has said that The security that is guaranteed by the law and protected by the justice system reaches into the most delicate areas of civil life, because it is concerned with the moral and physical welfare of citizens, an area in which the State has its greatest responsibility. This almost instinctive manifestation of State authority takes major political decisions and uses them for the prevention and resolution of conflicts. This process, however, should take place without interfering with other social processes. Using this power to determine the direction of society would introduce a disruptive and arbitrary element in the society." Op. cit., pp.738 and 739.