THE RIGHT TO HUMANE TREATMENT
291. The IACHR continues to be concerned about the practice of torture by State agents in Mexico. During its on site visit, the Commission had an opportunity to examine information from a number of sources regarding that practice committed for a variety of purposes. Because of the gravity of these aberrant acts, the IACHR considers it appropriate to discuss the status of the right to human treatment in Mexico in this report, and to specifically address the issue of torture. Numerous complaints have been filed by non-governmental organizations and individuals, according to which torture continues to be practiced not only on an extrajudicial basis, but also as part of judicial investigations, for the purpose of intimidating prisoners, forcing them to incriminate themselves, and obtaining confessions.(46) This situation has also been noted by international organizations.(47)
I. LEGAL FRAMEWORK
292. A series of national and international legal instruments exists in Mexico to prohibit torture and cruel, inhuman, and degrading treatment.
A. International law
293. Article 5 of the American Convention on Human Rights recognizes the right of every person "to have his physical, mental, and moral integrity respected". It also provides that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.(48)
294. In addition, Mexico has ratified specific instruments that relate to torture, such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-American Convention to Prevent and Punish Torture. Through these two instruments, Mexico assumed the international obligation to, inter alia, prevent and punish torture and to take all legislative, administrative, judicial or other effective measures to prevent torture within its jurisdiction.(49) The Inter-American Convention to Prevent and Punish Torture defines torture as:
...any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.
The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of legal measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.(50)
B. National law
295. Articles 20 and 22 of the Mexican Constitution prohibit all forms of "incommunicado detention, intimidation or torture" or any "punishment involving mutilation and disgrace, branding, whipping, sticklashes, torment of any kind ... and any other unusual or excessive forms of punishment."
296. The Federal Law to Prevent and Punish Torture came into force on 27 May 1986 with its publication in the Official Gazette of the Federation. This law was amended in 1991 with the amendment coming into force in late December of that same year.
297. The main advances achieved in the reform of the law against torture were the following: a confession is valid only if given in the office of a Public Prosecutor or before the trial judge in the case and in the presence of the defense counsel or of a person who enjoys the trust of the declarant; it adopts the principle of the inadmissibility of evidence that has been unlawfully obtained; the punishment for criminal acts has been increased and brought into line with the gravity of the act committed; and criteria have been established for the payment of compensation for harm done.(51) Furthermore, with a view to establishing stricter regulations to prevent torture, it was proposed that each state of the Federation should adopt legislation to prevent and punish torture. In keeping with this approach, the National Human Rights Commission and the respective local commissions have lobbied state governments to adopt special legislation. The result has been positive, since to date only the states of Puebla and Tlaxcala do not have specific legislation on torture or laws that characterize torture as a criminal offence in their criminal codes.(52)
298. Article 3 of the above-mentioned law indicates that the crime of torture is committed by:
...any public employee who uses his or her authority to inflict grave physical or psychological pain or suffering on a person for the purpose of obtaining from such person or from a third party information or a confession, or of punishing the said person for an act which he or she may have committed or is suspected of having committed...
299. The National Human Rights Commission, as other Mexican authorities have done, has indicated that since the reform of the Federal law against torture, the number of such cases has dropped considerably as a proportion of all violations of human rights, and the number of complaints received regarding torture has declined.(53) The Mexican State made the following report to the IACHR:
With regard to persons implicated in the crime of torture from the time the CNDH was established to the present time, at the federal level the Office of the Attorney-General of the Republic has remanded 54 persons to the courts based on the recommendations of that Commission, and 6 of them have been convicted. In addition, as part of its campaign against impunity, the Internal Comptroller's Office [Contraloría Interna] in the Attorney-General's Office, during the same period of time, meted out administrative punishment to 1,202 public agents and brought criminal action in 246 cases.
300. Many non-governmental human rights organizations in Mexico do not share the State's view that the number of cases of torture in Mexico has dropped considerably. In this connection, they caution that:
... we must be mindful of the fact that the decline in the number of cases recorded by the National Commission is due, in part, to the creation since 1992 of 32 local human rights commissions, one for each state and one for the Federal District. This development led to a real decline in the total number of complaints submitted to the National Commission and hence to a reduction in the total number of allegations of torture.(54)
301. Consequently, it is to be noted that in order to have a full picture, one must refer not only to the recommendations of the National Commission but also to those issued by the state human rights commissions (32 nationwide). The total should also include denunciations of torture made to the Office of the Public Prosecutor but not submitted to the National Commission as well as those declarations made directly before a court, in which accused persons retract the statements which they had made to the Office of the Public Prosecutor, on the grounds that they had been extracted under torture. They further state that the recommendations formulated by the National Commission take account only of the complaint but not of the number of victims. "in 1992, for example, in the 30 recommendations in which the National Commission found credible evidence of torture the recommendations themselves state that a total of 50 and not 30 people had been tortured."(55)
302. Finally, non-governmental organizations have noted that many complaints of torture are changed to another offence when the recommendations are formulated:
... in other words, the recommendation refers to injuries, abuses of authority, or, if the complaint has been made from inside a prison, the National Commission classifies its recommendation as relating to the violation of prisoners' rights. Consequently, the practice of torture is downplayed, distorting the reality and thereby allowing those guilty to go unpunished." (56)
II. OFFICE OF THE PUBLIC PROSECUTOR, TORTURE, AND THE PRINCIPLE OF SWIFT PUNISHMENT
303. Even though Mexico has a broad legal framework for the prevention, eradication and punishment of acts of torture, torture and the impunity of the perpetrators continue to pose a serious problem.(57)
304. The IACHR has received numerous complaints about incidents of torture in Mexico and a number of cases are currently being reviewed by the Commission.(58) By way of illustration, we will refer here in extenso to one recent case of torture which took place in Mexico and which was the subject of a recommendation by the Human Rights Commission for the Federal District:
On October 18, 1996, as María de los Angeles Plancarte Costilla and her boyfriend David were driving along Avenida Churubusco, they were stopped by agents of the judicial police of the Federal District, who made David get out of the car before taking her to the offices of the judicial police. On the way to the police station, they asked her where the merchandise was and threatened to plant cocaine on her and put her in jail if she didn't cooperate. In an interview with the victim, the latter described what happened:
They reached a place that was unfamiliar to me and immediately took me up a spiral staircase with railings and pushed me into an office. They continued to ask about the warehouse where the merchandise was stored. All of a sudden they brought out a bottle of "tehuacán" (mineral water) and poured the water into my nose. I felt as if I was drowning because they covered my mouth and forced the water down. The second time that they poured the "tehuacán" in I fell onto my side and remained in that position for a moment. As they interrogated me, I was struck on several parts of my body. They beat me with my own shoes on my head and with closed fists on my right side and kicked me. They also pinched my breasts. They placed a plastic bag over my head with my sweater on. Then they took off the sweater and again placed the plastic bag over my head. My vision blurred and I fainted. When I came to, they were slapping my face to get me to react. I realized that once again I had my sweater on. They insisted that I tell them where the suits were hidden and since I couldn't tell them, they removed my sweater again and replaced the plastic bag over my head so that I again fainted. When I recovered, they pulled my hair, held my neck in a lock and applied electric shocks to my head. They repeated this four times. While I continued to be restrained, they pulled me by the ankles and spread my legs telling her they were going to rape me. They also told me they were going to call the army people to take off my clothes and pull out my pubic hairs one by one. They told me that they had my mother and two children there. That my mother was in bad shape from the beatings she had received and that one of my children had to be taken to hospital because of an injury to his testicles. They then took off my sweater, told me to turn around and took two photos from the front and from the side. They then put the sweater back on and they forced me into a corner. One of the persons in the corner lit a cigarette and burned my hands.
She later indicated that a man and a woman dressed in black, who were not part of that group of four, had brought her down two floors in the elevator to the 10th floor, where they placed her in a room and brought her some papers which they told her to sign without letting her read the contents. She had signed them out of fear of what they might do to her. Both persons treated her very well. When they finally allowed her to make a phone call, she called one of her brothers. To find out where she was, she asked one of the policemen guarding her, who told her that she was in the Arcos de Belén building, next to the Salto del Agua subway station. At about twelve o'clock they brought her down to the doctor on the ground floor, who asked her if the judicial police had beaten her, but out of fear she replied that she had fallen when getting off a bus. The doctor persisted until she told him what had happened. Finally, they took her to the Office of the Attorney-General of the Republic where an officer told her that the incident was related to the investigation of some counterfeit 50-peso notes which she had in her purse. She made it clear from the outset, however, that she had no 50-peso notes on her person, but a single 100-peso note.(59)
305. According to information received by the IACHR, most cases of torture and of cruel, inhuman and degrading treatment occur in the context of the criminal justice system, mainly during the early stages of the investigation of criminal offenses.(60) The agents who are usually guilty of committing acts of torture are members of the Federal and state judicial police, the Office of the Public Prosecutor or the Armed Forces. Below is an excerpt from the report issued recently by the United Nations Special Rapporteur, Nigel Rodley, regarding the practice of torture in Mexico:
Torture is inflicted primarily to obtain confessions or information. At times, it is practiced in conjunction with brutal prison treatment. Its perpetrators may be federal or state police officers, members of the preventive or judicial police force, or military personnel, when the military is involved in law enforcement activities. The victims may be suspected of having committed common crimes or violent crimes for political reasons, and they may also have taken part in crimes related to drugs or be treated as if they had been involved in crimes of that sort.(61)
306. This preliminary investigative stage, as we have pointed out in earlier chapters of this report, is under the exclusive responsibility of the public prosecutor's office. Prior to the 1993 amendments to the Constitution, neither the public prosecutor's office nor official agents could detain persons without judicial authorization, with the exception of cases of "flagrante delicto" or urgent cases involving crimes to be prosecuted ex oficio. Contrary to what was expected, the amendment increased the possibility of abuse, and gave the Public Prosecutor's Office virtually absolute power to make arrests without prior judicial authorization, whenever, in the opinion of the Public Prosecutor's Office, an urgent case were involved pursuant to Article 16 of the Constitution. The presumed suspect may be held by the Public Prosecutor's Office for periods of time up to 48 or 96 hours, depending on the case,(62) before being brought before the competent judge.
307. This power of extensive interpretation conferred on the Office of the Public Prosecutor, to determine which cases are "urgent," makes it impossible to ensure adequate protection of citizens from illegal interference with their personal freedom, with the serious consequences for their own personal well-being in all too many cases.(63) In the course of its many years of experience, the IACHR has found that in most cases, torture occurs during the first few days the prisoner is detained. Prisoners are particularly vulnerable during the time they are held "incomunicado," that is, when the security forces have total control over the fate of these people, since they are denied access to family members, an attorney, or an independent physician. For these reasons, the Commission considers it important to limit to a minimum the time that a prisoner may be held before being brought before a competent judge.
308. Despite the fact that article 5 of the American Convention states that "...all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person", torture and cruel, inhuman and degrading treatment are widely used by members of the Mexican judicial police during the preliminary investigation stage as a means of obtaining confessions from the accused and/or to intimidate them.
309. The practice of torture as a method of police investigation has been encouraged by the legal validity which the Mexican legal system confers on the first statement by the accused, which, as we have already noted in this report, is taken not by the judge but by the Office of the Public Prosecutor. In this regard, the Supreme Court of Mexico has even held that where there are two contradictory statements by an accused the initial statement should prevail:
Confession. First statements by a detained person. In conformity with the principle of procedural immediacy [inmediación procesal] and unless the retraction of the confession is legal, the first statements by the accused which are made without sufficient time for preparation or for exculpatory reflection should prevail over later statements.(64)
310. This argument has been erroneously characterized in Mexico as the principle of procedural immediacy; however, this is valid in law only when the judge himself witnesses the giving of the statement. In that sense, Argentine author Julio B.J. Maier refers to the control of the evidence to be weighed by the court in its ruling in the following terms:
This is the main reason for the oral and public debate, which is regulated by modern rules of procedure which reformed the earlier inquisitorial procedure, establishing it as the culmination of the procedure and as the basis for the court's decision. This debate takes place in the uninterrupted presence of all parties involved in the trial (principle of immediacy), including the accused and his defence counsel and provides the only evidentiary elements on which the court's decision is based, a procedure that ensures that all the parties who have an interest in the court's decision have the power to review the evidence...(65)
311. Historical experience has shown conclusively that to accord probative value to extrajudicial statements or statements made during the investigative stage of criminal proceedings merely encourages the practice of torture, insofar as the police prefer to expend less effort in the investigation and to seek instead the confession of the accused person. In this regard, the aforesaid report of the United Nations Special Rapporteur states the following:
…As a general rule, judges and attorneys, pubic prosecutors and the judicial police itself are all overwhelmed with work, so that there may be a tendency to resort to confessions as a quick way to solve a case. Other sources also point out problems of corruption and influence peddling among public prosecutors, judges, and court-appointed attorneys, as a way for public prosecutors and judges to accumulate convictions so that they can more easily obtain promotions.(66)
312. A comparative analysis of the various elements of fair trial in the hemisphere clearly shows that the process should be conducted directly and promptly by the judge, with special emphasis being placed on the direct relationship between the judge and the person accused. Both the International Covenant on Civil and Political Rights and the American Convention provide that the accused must be brought "... promptly before a judge...."(67)
313. The logic behind the guarantees of the criminal proceeding is the personal intervention of the judge in his court, which is deemed to be the appropriate organ for the protection of such rights. The objective behind the principle of principle of immediacy is to avoid as much as possible any distancing of the judge from the elements of the proceeding and especially from the accused.(68) In addition, "the objective behind the principle of procedural immediacy is to guarantee to citizens that the most serious matters that may affect their social lives - including those of a criminal nature - would be dealt with by an organ that is endowed with a range of safeguards to guarantee in particular its independence and impartiality."(69)
314. In criminal matters, the principle of procedural immediacy is of fundamental importance, since the problems to be resolved by the court concern the basic faculties of the human person, which may be affected by the criminal justice system of the State.(70) Consequently, the guarantee of procedural immediacy should in all cases be construed as having effect only between the judge and the accused person. Improper and erroneous interpretations, including statements given at police stations or at the Office of the Public Prosecutor should be rejected, since they are not given before the judge himself.
315. The Mexican State is construing the guarantee of procedural immediacy in a way which, instead of serving as a procedural guarantee for those accused of a crime, is becoming its very antithesis, the source of abuse of the rights of accused persons. Instead of being brought promptly before an impartial and competent organ for the protection of their rights, such as the competent judge in each specific case, accused persons are held for 48 hours or 96 hours by the judicial police without any judicial oversight.(71) In many cases the judicial police use coercion and torture to extract self-incriminating testimony from the accused.(72) In this regard, the IACHR notes that it has had no knowledge of acts of torture taking place during the period in which persons accused of crimes are brought before a competent judge; on the other hand, it is aware of numerous cases of torture that have taken place when accused persons are under the responsibility of the judicial police, be they federal or state.
316. During its visit, the IACHR spoke with various State officials, such as officials in the Office of the Attorney-General, the Secretariat of the Interior [Secretaría de Gobernacíon], and the Supreme Court, to discuss the problem of torture as a method that the police continue to use in investigations, even though it is clearly illegal. In order to combat this abusive practice, the Commission stressed the importance of refusing to admit as evidence in court proceedings any statements that were obtained under torture. The Mexican State submitted to the Commission various court rulings in which the probative value of confessions extracted by means of torture was rejected. The IACHR appreciates legal precedence of this sort, but it points out that it is aware of many judgments in which statements obtained under torture have been accepted by the Mexican courts.
317. With reference to the foregoing, the State cites a case in which it was established that "pursuant to the principle of a prompt trial, the initial statements of an accused ordinarily are more convincing than later statements," but that the effectiveness of those statements is greater if "they are corroborated by other evidence."(73) In other cases cited by the State, Mexican courts have decided as follows:
Confessions obtained after prolonged and unjustified detention by police authorities have no probative value on their own, nor do statements by officers of the authority who act arbitrarily in violation of individual guarantees, since it is reasonable to assume that they intend to use the charges against the prisoners to justify their arbitrary proceedings.(74)
Detention of a suspect by police officers before the charges are presented implies coercion of the person and hence the resulting confession is considered as lacking veracity.(75)
318. Based on the previous statements regarding the principle of a prompt trial and the guarantees of due process, the IACHR concludes that the only confessions that should be accepted as incriminating evidence are judicial confessions, or in other words confessions made before a competent judge, with all the corresponding guarantees. On this point, the IACHR is in agreement with the United Nations Special Rapporteur, whose recent report on the practice of torture in Mexico recommends that the Mexican State "should not consider statements made by prisoners as having probative value unless they are made in the presence of a judge."(76)
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319. The Federal Law to Prevent and Punish Torture states that "no confession or information obtained by torture may be introduced into evidence."(77) In practice, however, the burden of proof is on the victim of torture, since it is he who must prove that he has been tortured, which is often a difficult thing to do.(78) (79) Procedurally, the statement given by the accused person to the police authorities has full legal validity if he is unable to prove that he was subjected to torture.(80) Hence, the Mexican Supreme Court itself has stated that:
Proof of coerced confession: When the confessor does not provide any evidence to prove his assertion that he was subjected to violence by a State organ, his statement is insufficient to deprive his initial confession of the spontaneity required for it to be legally valid.(81)
320. On this point, the IACHR states that in the case of a statement or testimony in which there is a well-founded suspicion or presumption that it was obtained by some type of coercion, be it physical or psychological, the Mexican courts must determine whether such coercion did actually exist. In the event that a statement or testimony obtained in these circumstances is admitted and used during the trial as an element of evidence or proof, that state may incur international responsibility.
321. With a view to reducing the incidence of torture, the constitutional reform provided that only confessions made before the public prosecutor or the judge of the case, and in the presence of the declarant's attorney or other person who enjoys the confidence of the accused, shall be admitted for trial purposes.(82) Despite the progress which this reform represented, persons accused or suspected of having committed crimes continue to be subjected to torture, which generally take place before their attorneys arrive and, in some cases, the Commission has learned that court-appointed public defenders fail to bring complaints of torture to the attention of the competent authorities. The Commission also learnt during its visit to Mexico that the person of confidence to which the Constitution refers is designated by none other than the Public Prosecutor or that an ex officio public defender is appointed who is not present but who later signs a document attesting to his presence.
322. In conjunction with the foregoing, the United Nations Special Rapporteur referred to the problem of public defenders in cases of torture:
In the absence of a private attorney, the court-appointed attorney appears to be present at the time a statement is taken and does not appear to have (or to exercise) the right to follow the person if he or she is taken back to police headquarters. Moreover, it was generally acknowledged that court-appointed defense attorneys do not have the necessary qualifications, they are very poorly paid, and they have virtually no established position vis-à-vis the other participants in the proceedings. Frequently, the victims did not even know that one of the persons around them was in fact a public defender, who was supposedly on their side. In short, the court-appointed defenders cannot be counted on to defend the accused.(83)
III. IMPUNITY OF TORTURERS
323. The Commission has received numerous complaints that victims of torture face innumerable obstacles in their attempts to bring legal actions against their alleged torturers and that when such actions are brought they do not reach completion. One of the greatest obstacles is that torture, as a federal crime, is required to be investigated and prosecuted by the federal judicial police.(84) This means that there is a lack of independence in the investigation, since it is common for the party that simultaneously investigates (Office of the Public Prosecutor) and assists in the investigation (judicial police) to be acquainted with and to cover up those whom it is investigating (judicial police and others), thereby creating a climate of impunity for torturers.
324. Mention must be made of Article 8 of the Inter-American Convention to Prevent and Punish Torture, which provides that: "States Parties shall guarantee the right of any person within their jurisdiction who makes an accusation of having been subjected to torture to an impartial examination of his case." For its part, Article 13 of the United Nations Convention against Torture provides that: "Each State Party shall ensure that any individual who alleges he has been subjected to torture ... has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities...."
325. In addition, it has been noted that the judiciary in Mexico has often played a complicitous role in the impunity of torturers, in that it has shown no real willingness to punish those guilty of acts of torture:(85)
In this stage of the struggle against torture, the judiciary is still not fully behind the effort, since convictions have been handed down in only four cases, while in 14 cases it refused to issue a warrant of arrest. In five cases, courts have rescinded and in two they have issued orders for the release of accused persons ... There is, of course, more data, but I wish to make it clear that much remains to be done to raise awareness among the various authorities about the importance of ensuring that torture is punished severely and in accordance with the law....(86)
326. Failure to impose the appropriate penalties on persons or public employees who refuse to cooperate in the criminal proceedings must be taken as an expression of judicial negligence, the effect of which is to protect the authors of acts of torture. It also means a failure by Mexico to fulfil its obligation to ensure the free and full exercise of judicial rights and judicial protection to the persons within its jurisdiction.(87)
327. The Commission also notes that once an act of torture has been committed, the State has an international obligation to take effective measures to investigate and punish the persons responsible for such acts or for other cruel, inhuman, and degrading treatment to which persons have been subjected within its jurisdiction.(88) The fact that a State has a law that severely punishes acts of torture is not, per se, sufficient to guarantee compliance with its international obligation to take effective measures to punish such acts, if the organs of the State in question which are responsible for applying and enforcing that law do so in a partial manner or in only a few cases.(89) Consequently, the State must ensure the punishment of persons responsible for acts of torture. Similarly, among the effective measures which the State must take is to ensure redress and the right to fair and adequate compensation for the victims of torture, including the means for as full rehabilitation as possible.(90) To date, the Commission has no knowledge of any case in Mexico in which any redress, including compensation and rehabilitation, has been obtained by the victims of torture.
328. Similarly, Mexico has the legal duty to prevent acts of torture. To this end, it must take such legal, political, administrative and cultural measures as are necessary to safeguard the personal integrity of all persons within its jurisdiction. As the Inter-American Court of Human Rights has indicated that:
... subjecting detained persons to official, law-enforcement organs which engage with impunity in the practice of torture and assassination is itself a breach of the duty to prevent violations of a person's right to life and to physical integrity, even if a particular person is not tortured or assassinated, or if those facts cannot be proven in a specific case.(91)
IV. TORTURE IN CONFLICT ZONES
329. As was indicated in this report in the chapter on the right to justice (Chapter V), the IACHR found that following the emergence of the Zapatista National Liberation Army (EZLN) in 1994 and of the so-called Ejército Popular Revolucionario (People's Revolutionary Army) (EPR) in 1996, a campaign of repression has been unleashed in several Mexican states by both police and military forces with a view to apprehending members of armed dissident groups.
330. The IACHR has repeatedly recognized the duty of States to provide the necessary means to guarantee the security of its citizens and the defense of its territory, within the framework of a democratic society. However, in the case of Mexico, the IACHR has received various complaints and information, since the outbreak of the armed conflict, documenting violations of human rights and of international humanitarian law in the areas affected by conflict.(92) According to testimony received by the Commission, the civilian population is constantly being searched and harassed by the Armed Forces under the pretext of pursuing allegedly armed groups of dissidents.
331. These joint operations which are carried out in various parts of Mexico, especially in areas of major social and political protests or where armed groups are presumed to operate, have been characterized --as various non-governmental human rights organizations have indicated-- by arbitrary arrests, torture and threats, as well as intimidation against peasants and other citizens from various social and political organizations. The Commission has received information that the army has tortured detained peasants --especially in the states of Guerrero and Oaxaca-- in an effort to obtain information on the EPR or to force them to make statements linking peasant leaders to that guerrilla group.(93)
332. As was indicated in this report, during its on-site visit the IACHR was able to verify that many of the arrests of alleged members of the EPR were carried out by members of the Mexican army and that some of these guerrillas were effectively tortured to get them to confess their involvement. During its on-site visit to penitentiary center of the city of Acapulco, the Commission was thus able to meet with and question eight alleged EPR members and directly observed that these persons had been badly beaten and had visible signs of torture by electrical device on their bodies.
333. In addition, among other cases, it has been reported that the Zapotec indigenous community of San Agustín Loxicha, in the state of Oaxaca, has been the victim of enforced disappearances, arbitrary arrests without warrants, illegal searches of homes, torture, beatings, and ill-treatment by members of both the judicial police and the army.(94)
334. Another example is provided by the relatives of the 25-year-old Mr. Domingo Jiménez Sonora, who was arrested by the army on July 1, 1996, accused of possession of a firearm, and brought before the Public Prosecutor seven days after his arrest. During the period of his disappearance, he allegedly suffered various forms of torture: he was bound hand and foot and kept exposed to the elements, regularly beaten, denied food or drink and thus was able to consume only rain water, and before being brought to prison he was taken up on a military helicopter and hung by his feet over the sea in a simulated execution to get him to confess all he knew about the EPR. At least two other witnesses have reported the same experience, although they were captured at different times and places; their names are Lorenzo and Jerónimo Adame del Rosario, both residents of the town of Tepetixtla, in the state of Guerrero.(95)
335. Reference should also be made to the events linked to operations by the Mexican security forces in El Charco on June 7, 1998, mentioned in the chapter of this report which discussed the right to life. When these operations were over, one of the detainees, Erika Zamora Pardo, made serious accusations:
…I declare that the Federal Army forced me to sign a military statement by using physical and psychological torture. They blindfolded me, took off all of my clothing, and gave me electric shocks on my feet. The statement made in the presence of the Federal Public Prosecutor was made under the pressure of State agents, who forced me to name and involve persons, while threatening me and my family with disappearance.(96)
336. The Commission will continue its consideration of this allegation, in light of the available information and of action taken by the Mexican government to shed full light on the events in question.
337. Based on the preceding information, the Commission believes that the Mexican State should pay special attention to and supervise its agents operating in areas of armed conflict, since the situation of conflict may encourage the use of torture by some members of the Armed Forces as a means of defeating the armed dissident groups and maintaining social order.(97) Based on clear rules of international human rights law and international humanitarian law, the Commission emphasizes that the existence of factual or legal circumstances, such as a state of war, threat of war, state of siege or emergency, internal disturbance or conflict, domestic political instability or other analogous situations, the dangerousness of the person detained, or other factors, can in no way justify any acts of torture, or other human rights violations.(98)
338. In light of the situation reviewed above, the IACHR makes the following recommendations to the Mexican State:
339. To adopt the measures toward ensuring that acts of torture are characterized and punished as such by jurisdictional organs, in accordance with the international definition of this violation of the right to personal integrity.
340. To characterize acts of torture as such and not as other types of crime.
341. To take the necessary measures to exercise effective judicial supervision over the arrest and the agencies entrusted with making the arrest, since detention and arrest are among the most critical phases in any criminal proceeding during which the detainee is under the exclusive control of the police.
342. To give the relevant instructions to State agents making the arrest to inform the persons being arrested, at the time of such arrest, of the reasons for their arrest and of their rights and guarantees in terms that he or she can understand, taking into account the person's background, educational level and language spoken.
343. To implement specific programs to educate and train public officials responsible for enforcing the law about the absolute prohibition of acts of torture and of all cruel, inhuman or degrading treatment or punishment.
344. To guarantee the right of those arrested to communicate immediately with an attorney of their choice.
345. To take the necessary measures to ensure that the states of Puebla and Tlaxcala adopt specific legislation on torture.
346. To adopt the necessary measures, legislative or of other nature, to ensure that the statement which the accused makes before the competent judge in the case is deemed to be the only valid confession, eliminating expressly the incriminating value of confessions made to the judicial police.
347. To provide specific guidelines for the competent authorities requesting them to reject any statement or testimony in which there are presumptions or good reason for believing that such statement or testimony was obtained by coercion or physical or moral torture.
348. To investigate and punish, with the severity required by each specific case, those responsible for acts of torture.
349. To take all necessary steps to ensure that victims of torture are rehabilitated and provided with fair and adequate compensation.
350. To instruct the relevant authorities to pay special attention to and properly supervise State agents (army and police) in combat zones with a view to preventing acts of torture.
46. In the statement released by the Commission following its visit to Mexico, it had the following to say:
During its visit to Mexico, the IACHR received information regarding a general distrust of the police, and it received complaints related to their inefficiency and corruption, and to their practice of arbitrary arrests and torture.
The IACHR attaches the utmost importance to the complaints it has receiving regarding torture in Mexico. On the basis of its wealth of experience in the hemisphere, the IACHR would like to stress that in the ongoing struggle against the scourge of torture, it is essential that the court give no probative value to confessions extracted under torture, and that they prosecute and punish the guilty parties. The IACHR is aware that the National Human Rights Commission has issued a number of recommendations in the case of torture, some of which have been acted on. The IACHR will investigate the complaints that it has received on the subject.
47. For instance, the Report of the United Nations Special Rapporteur on Torture issued in January 1996 indicates:
The Rapporteur... had received information according to which toture continued to be practiced extensively as part of judicial investigations, for the purpose of intimidating prisoners and obtaining confessions ….
United Nations, E/CN.4/1996/35.
48. Other international agreements to which Mexico is party also expressly prohibit torture. Article 7 of the International Covenant on Civil and Political Rights states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Article 5 of the Universal Declaration of Human Rights also states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
49. Article 1 of the Inter-American Convention to Prevent and Punish Torture states: "The States Parties undertake to prevent and punish torture in accordance with the terms of this Convention." Similarly, article 2 of the United Nations Convention against Torture provides that: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
50. In this regard the IACHR has noted that three elements are required for a finding of torture, namely:
1) It must be an intentional act through which physical and mental pain and suffering are inflicted on a person;
2) It must be committed with a purpose;
3) It must be committed by a public official or by a private person acting at the instigation of a public official.
See, Annual Report of the Inter-American Commission on Human Rights 1995, Report No. 5/96, Case Raquel Martín de Mejía, Peru, p. 198.
In addition, the United Nations Special Rapporteur against Torture has noted that the real result which torture actually seeks to achieve is to obliterate the personality and break the will of the victim and that its long-term effects are more psychological than physical, since a broken and obliterated personality will never heal and the inherent dignity of the victim is irreparably impaired. United Nations Special Rapporteur against Torture, E/CN.4/1993/26, p. 149.
51. Jorge Madrazo, "Logros de la CNDH en la lucha contra la tortura," (Successes of the National Human Rights Commission in the fight against torture), paper delivered on 10 August 1995 in Mexico, p. 11.
53. In this connection, Jorge Madrazo, former Chairman of the National Human Rights Commission, has stated that:
"During the first year of the Commission's activities, torture ranked first among violations of human rights, with 446 cases out of a total 3,256. This represented 13.7% of all cases investigated....
... during the second year things gradually improved, with cases of torture ranking third and accounting for 290 or 4.1 per cent of the 6,988 complaints received. During the third year of the Commission's existence, the 246 reported cases dropped to seventh place in the ranking, representing 2.8 per cent of the 8,793 complaints received. In the fourth year, the 141 cases reported ranked tenth and represented 1.65 per cent of the 8,804 complaints received. And in the last year, the 45 complaints of torture received ranked torture fifteenth among all types of violations committed, when it represented 0.5 per cent of the 8,921 complaints received....
Idem, at 10.
54. Network of Civilian Human Rights Organizations of Mexico, Report on Torture in Mexico submitted to the United Nations Committee against Torture at its session of April- May 1997.
57. See, for example, the report prepared by Human Rights Watch/Americas entitled Mexico, Torture and Other Abuses During the 1995 Crackdown on Alleged Zapatistas, February 1996, p. 5.
58. The Commission will express itself on them when they are decided and their publication has been agreed on.
59. Human Rights Commission of the Federal District, Recommendation 2/97, pp. 5-8. In this case, the Human Rights Commission of the Federal District recommended prompt investigation of the criminal torture to which Ms. María de los Angeles Plancarte Costilla was subjected and, once the presumed responsibilities were determined, the initiation of criminal proceedings when and where appropriate in connection with the crime and its concealment.
60. The June 1993 report of Amnesty International entitled "The Persistence of Torture and Impunity" notes that almost all cases of torture and human rights violations recorded by Amnesty International continue to be related to the administration of justice, especially in the investigation and trial phases (A.M.R. 41/01/93/s distr. SC/CO/GR).
61. United Nations, Economic and Social Council, Report of the Special Rapporteur, Mr.Nigel S. Rodley, presented in accordance with Resolution 1997/38 of the Human Rights Commission, E/CN.4/1998/38/Add.2, 14 January 1998, par. 79, p. 23.
62. Article 16 of the Constitution of the United Mexican States provides:
No suspect may be detained by the Office of the Attorney General for more than 48 hours, at which time his release must be ordered or he must be turned over to the judicial authority. This time limit may be doubled in cases defined by law as organized crime. Any violation of the foregoing provision shall be punished under criminal law.
63. In its "Comments and Observations" to this report, the Mexican government regarded as an "erroneous assessment" the IACHR's statement that it was within the purview of the Public Prosecutor's Office to determine which cases are urgent for the purposes indicated. In support of its argument, the government claimed that the following conditions set forth in Article 16 of the Constitution must be met in order for a case to be considered as urgent:
- A serious crime is involved, as defined by the relevant law;
- There is a well-founded danger that the suspect may escape prosecution by the courts.
- Because of the time, place, or circumstances, it is not possible to have recourse to the judicial authority.
The text of the referenced Article 16 expressly establishes that, in the event that these requirements are met with respect to a given person, "the Public Prosecutor's Office may, acting on its own responsibility, order that person's detention, giving the grounds for and indicating the evidence that motivated its action." Consequently, there is no possibility for error with regard to the power of the Public Prosecution to determine whether the conditions established by law for detaining a persons have been met, thus confirming the observation set forth in paragraph 15 of this chapter. As for the periods of 48 and 96 hours, the government indicated in its comments that this was the maximum time that a person may remain in the custody of the Public Prosecutor's Office, both in cases of flagrante delicto as well as in so-called urgent cases. Once those periods of time have lapsed, the person is released or the appropriate criminal judge is assigned to the case, or in other words criminal proceedings are instituted.
64. Thesis number 82, Federal law seminar, appendix on defined jurisprudence 1917-1971, Part II, First Chamber, p. 175.
65. Julio B.J. Maier, Criminal procedural law, Tome I - Basic elements, Editores del Puerto S.R.L., Buenos Aires, Argentina, 1996, p.585.
66. United Nations, E/CN.4/1998/38/Add.2, par. 43, p. 14. See also, Anneliezze Pereira, "The fight against torture in international law", Universidad Pontificia de Salamanca, final thesis for Master's degree in European studies and human rights, p.61.
67. Article 9 (3) of the International Covenant on Civil and Political Rights provides that: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power...." Similarly, article 7 (5) of the American Convention provides that: "Any person detained shall be brought promptly before a judge..."
68. Cristián Riego, Criminal Procedure in Chile and Human Rights, Volume I, Legal aspects, Law Review Journal (Cuadernos de análisis jurídico) School of Law, Diego Portales University, pp. 37-39.
71. The government told the IACHR that "the Public Prosecutor's Office decrees that suspects are to be detained under its responsibility, and not that of the judicial police, in certain cases that are specifically defined." This statement confirms the lack of supervision of the competent judge during this stage of detention of suspects in Mexico.
72. The Human Rights Commission of the Federal District has stated in this connection that:
This Commission takes note that there are many ways in which a detainee may be injured in the pretrial stage of criminal proceedings and the Attorney-General, the Assistant State Attorney for Preliminary Investigations and the Director-General of the Judicial Police cannot be everywhere at the same time to prevent some form of abuse against persons deprived of their liberty.
Op. cit. at 20, p. 67.
73. Second Collegiate Court of the Sixth Circuit, direct amparo 218/89, Genaro Félix Eliosa Muñoz, July 12, 1989. Eighth Period, Semanario Judicial de la Federación, Mexico,Volume XIV-July, p. 511.
74. Direct amparo 790/86. Lorenzo Martínez Nieto and Coags., November 3, 1986, Seventh Period, Semanario Judicial de la Federación, Mexico, Volume 205-216, Second section, p. 13
75. Direct amparo 2151/74. Salvador Pérez García et al, 17 July 1975, Seventh Period, Semnario Judicial de la Federación, Mexico, Volume 84, Second section, para. d, p. 49.
76. United Nations, E/CN.4/1998/38/Add.2, p. 26.
77. Federal Law to Prevent and Punish Torture, article 8.
78. The United Nations Special Rapporteur on Torture, in his report of January 10, 1991, notes in section 6 that:
... Even in cases where there is a persistent pattern of torture in a country, it is difficult to establish with absolute certainty whether a specific person has been tortured without conducting a careful medical examination.... Torture is invariably practiced in private, and the only witnesses are the accomplices to the act. Physical signs, if any, often disappear or heal, or can be ascribed to other causes. In that sense it can be said that torture is the most private of human rights violations.... therefore, it is implicitly recognized that torture does not begin in the interrogation room, but rather the decisive moment is when the victim is deprived of his liberty. From that moment he is in a situation in which he may be subjected to torture....
United Nations, E/CN.4/1991/17.
79. One reality that clearly shows the difficulty proving the facts of torture in Mexico is pointed out by the Human Rights Commission of the Federal District, in its Recommendation 2/97:
It is striking that the current routines for documenting detentions or stays of detainees in facilities of the Office of the Attorney General are insufficient to facilitate the detection of anomalies in the preliminary investigative proceedings.
80. Article 10 of the Inter-American Convention to Prevent and Punish Torture also provides that:
…no statement that is proven to have been obtained by torture shall be admissible as evidence in a legal proceeding, except in a proceeding brought against the person or persons accused of having elicited the statement through acts of torture, and only as evidence that the accused obtained the statement by such means.
82. See article 20, II of the Mexican Constitution.
83. United Nations, E/CN.4/1998/38/Add.2, par. 81, p. 24.
84. It has been noted that victims of torture in Mexican are often afraid to accuse the persons responsible. Asked why he did not bring a complaint before the judicial authorities for the ill-treatment suffered, one person answered: "After having been beaten and threatened, do you feel like repeating it before the same authorities?" Most citizens see no difference between the role of the police, the public prosecutor's office and the judges. See Miguel Sarre and Fernando Arturo Figueroa (Minnesota, p. 16).
85. The IACHR has received information that the National Commission has recognized in its reports the existence of 105 cases of torture. In reality, criminal charges been brought against only 53 public employees for the crime of torture, and in 14 cases for the crime of murder which originated in torture.
86. Op. cit. at 7.
87. The Inter-American Court of Human Rights in its judgment in the Velásquez Rodríguez Case stated that:
The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction....
88. Inter-American Convention to Prevent and Punish Torture, article 6.
89. In its judgment in the Velásquez Rodríguez Case, the Inter-American Court of Human Rights held that: "The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation -- it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights." (paragraph 167)
90. Article 14 of the United Nations Convention against Torture provides that:
Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.
See also article 8 of the Inter-American Convention to Prevent and Punish Torture.
91. Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1988.
92. See, for example: Human Rights Watch/Americas, Mexico: The New Year's Rebellion: Violations of Human Rights and Humanitarian Law During the Armed Revolt in Chiapas, Vol. VI, No. 3, March 1, 1994; Human Rights Watch/Americas and Physicians for Human Rights: Waiting for Justice in Chiapas (December 1994); and Human Rights Watch/Americas, Mexico: Army Officer Held "Responsible" for Chiapas Massacre: Accused Found Dead, Defense Ministry, Vol. 7, No. 7, June 1995.
93. "Fray Francisco de Vitoria O.P" Center for Human Rights, Report on the situation of human rights in Mexico, 1995-1996."
94. Mexican Commission for the Defense and Promotion of Human Rights AC, "Human rights in Mexico since the reform of the laws governing public security and organized crime", March 5, 1997.
95. Op. cit.
96. "La Jornada" newspaper, Erika Zamora: me obligaron bajo tortura a implicar a gente inocente ["Erika Zamora: They tortured me to get me to name innocent people], published on the internet on June 18, 1998.
97. The United Nations Special Rapporteur on Torture has noted that "when facing a noisy opposition or an armed uprising, drowning the opposition or crushing the insurgents will appear to have the highest priority...all other priorities are subordinated to it. In such circumstances it will be very easy to use torture with the dual objective of obtaining information and inspiring terror. Torture becomes a political tool for achieving this top priority."
98. See Article 5 of the Inter-American Convention to Prevent and Punish Torture.