A/HRC/WGAD/2010/33

27 February 2012

General Assembly

Human Rights Council


Working Group on Arbitrary Detention

Opinions adopted by the Working Group on Arbitrary Detention at its fifty-ninth session, 18–26 November 2010
No. 33/2010 (Mexico)

Communication addressed to the Government on 13 August 2010

Concerning: Raúl Hernández Abundio

The State is a party to the International Covenant on Civil and Political Rights.

1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of the former Commission on Human Rights. Its mandate was clarified and extended in Commission resolution 1997/50. The Human Rights Council assumed the Working Group’s mandate in its decision 2006/102 and extended it for a further three-year period in Council resolution 15/18 of 30 September 2010. Acting in accordance with its methods of work, the Working Group forwarded to the Government the above-mentioned communication.

2. The Working Group regrets that the Government has not provided the requested information.

3. The Working Group regards deprivation of liberty as arbitrary in the following cases:

(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him) (category I);

(b) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (category II);

(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, established in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III).

4. According to the information received, Raúl Hernández Abundio, a Mexican citizen who is a peasant leader and a member of the Me’phaa indigenous people’s organization (OPIM), was detained on 17 April 2008 and taken to the Social Rehabilitation Centre in Ayutla (Guerrero State). He was charged with the murder of Alejandro Feliciano García on 1 January 2008 in Ayutla.

5. According to the source, the charge is based solely on the statements of two witnesses of dubious credibility whose inconsistency was clearly demonstrated at the trial. The Office of the State Attorney-General (PGJE) failed to bring forward any other evidence in support of the charges. On the other hand, Hernández Abundio’s defending counsel presented several witnesses who made statements in which they declared that at the time of the murder, Hernández Abundio was elsewhere doing community work. Another organization distinct from the source, the Tlachinollan Centre for Human Rights, brought forward several witnesses who confirmed that when the crime was committed, Hernández Abundio was doing work for the town police station because at the time he was the town’s police commander.

6. On 30 June 2010, the judge responsible for the case terminated the submission of evidence. On 27 July 2010, the Governor of the State of Guerrero, Zeferino Torreblanca, made the following statement to the press: “My Government is confident about the charges against Raúl Hernández Abundio. If the State Government is confident that he should be accused, it should not withdraw the charges. If the Government is sure that the preliminary inquiry has not been properly carried out, then it should of course withdraw the charges.� (Statement made to the journalist, Daniel Velásquez in the 27 July 2010 issue of the newspaper El Sur.)

7. On 6 August 2010 the oral hearing was held. At the hearing, at which the closing arguments were presented, the defence drew attention to the irregularities committed during Hernández Abundio’s arrest and detention and presented, according to the source, sufficient evidence to prove his innocence. The witnesses for the prosecution were shown to have made false statements. Nevertheless, the Office of the State Attorney-General decided to maintain the charge.

8. The source draws attention to the fact that several members of OPIM have been awarded provisional measures by the Inter-American Court of Human Rights because they have been the victims of threats, judicial harassment and arbitrary detentions for a number of years for having denounced the human rights violations allegedly committed by elements in the army and for having exposed the abuses committed by the State authorities.

9. The source adds that Hernández Abundio’s detention is arbitrary and intended to punish him for his activities as a human rights activist. According to the source, it is a form of judicial harassment.

10. The source further points out that the statement by the Governor of the State of Guerrero influenced the Office of the State Attorney-General, which depends on the State’s executive branch. It recalls that the presentation of concluding statements is not a political matter, but a question of justice and lawfulness. As the evidence for the prosecution fell apart during the hearing, the charge should have been withdrawn. The procedure should have been conducted in compliance with the law and should have helped to restore the rights of Mr. Hernández Abundio, who has become one more victim of the abuse of the State’s prosecution and judicial institutions. The source also recalls that in the cases of Ms. Jacinta Francisco Marcial and Ms. América del Valle Ramirez, the respective Attorneys- General dropped the criminal charges when they were proven to be unfounded and unsustainable.

11. The Working Group has repeatedly maintained in its Opinions that it does not constitute a further instance to those provided by national law to resolve a conflict
involving a person who is deprived of their liberty. Its mandate is to provide Opinions on whether or not the guarantees of due process have been complied with. Thus, in its Opinion No. 25/2008 (Mexico) concerning the detention of the journalist Olivier Acuña Barba, the Group stated that it is not competent to assess whether the indictment — or the unappealable judgement — in a trial for ordinary offences (and not for an offence in which the act denounced consists in the exercise of one of the rights belonging to category II of the rights considered by the Working Group) fit the evidence in the file. It would be competent if the court had refused to admit evidence put forward by the accused, making the detention potentially arbitrary according to category III.

12. In the case at hand, the allegations made by the source are limited to claiming that the charges of homicide made against Hernández Abundio are based solely on the statements of two witnesses of dubious credibility whose inconsistency was clearly demonstrated at the trial; that the Office of the State Attorney-General failed to bring forward any other evidence in support of the charges; that the defence [...] put forward sufficient evidence to prove his innocence, and other such assertions. It is not possible for the Working Group to issue an Opinion without trial proceedings and the evidence produced.

13. It should also be emphasized that no claim has been made concerning infringement of due process and that as a whole the report by the source shows that the defence presented all the witnesses it deemed necessary. It makes no claim regarding denial of the rights of the defence, of the right to be defended by counsel of one’s own choosing, of the absence of an interpreter, of insufficient time to prepare the defence or any other departure from the principles set out in article 14 of the International Covenant on Civil and Political Rights.

14. The Working Group considers that it does not have sufficient information on the case and decides to file it under the terms of paragraph 17 (d) of its methods of work.

[Adopted on 25 November 2010]