I - Summary and Recommendations

The National Human Rights Commission (Comision Nacional de los Derechos Humanos,CNDH), Mexico's official human rights organ, is failing to live up to its promise.  The CNDH has made some valuable contributions to human rights promotion in Mexico over the years, providing detailed and authoritative information on specific human rights cases and usefully documenting some systemic obstacles to human rights progress.  But when it comes to actually securing remedies and promoting reforms to improve Mexico's dismal human rights record, the CNDH's performance has been disappointing.

The CNDH's principal objective is to ensure that the Mexican state remedies human rights abuses and reforms the laws, policies, and practices that give rise to them.  Given the pervasive and chronic failure of state institutions to do either, the CNDH is often the only meaningful recourse available to victims seeking redress for past abuses.  It is also, potentially, the most important catalyst for the changes that are urgently needed in Mexico to prevent future human rights violations. 

The CNDH's failure to carry out these functions effectively has not been due to a lack of resources.  The CNDH's 2007 budget of approximately US$73 million is by far the largest of any ombudsman's office in the Americas and one of the largest in the world.  It has over 1,000 employees, including knowledgeable and experienced professionals who are genuinely committed to promoting human rights.  Nor has the problem been the CNDH's mandate, which is broadly defined to include both "protecting" and "promoting" human rights, or its legal powers, which provide ample tools to pursue this broad mandate.

Rather, the reason for the CNDH's limited impact has been its own policies and practices.  The CNDH has not made full use of its broad mandate and immense resources.  It has routinely failed to press state institutions to remedy the abuses it has documented, to promote reforms needed to prevent those abuses, to challenge abusive laws, policies, and practices that contradict international human rights standards, to disclose and disseminate information it has collected on human rights problems, and to engage constructively with some key actors who are seeking to promote human rights progress in Mexico.

The CNDH could play a far more active role in improving the human rights situation in Mexico.  But for an institution of this kind to be a catalyst for change, rather than merely a chronicler of the status quo, it must be resourceful, creative, proactive, and persistent in promoting solutions to the country's human rights problems. 

CNDH investigators have demonstrated such resourcefulness in their efforts to document abuses.  For example, the Second Investigative Unit (visitaduria) conducted extensive research in the aftermath of police crackdowns in Guadalajara in 2004 and Atenco in 2006, providing an authoritative and detailed account of serious human rights violations in both instances.  The Third Investigative Unit carried out a comprehensive evaluation of the country's prison system in 2006, using a carefully crafted system of indicators to evaluate conditions in 191 prisons.  The Fifth Investigative Unit has sought to overcome the difficulties of documenting abuses against migrants by establishing offices in key locations throughout the country in recent years, thereby making it easier for these victims to denounce violations and for the unit to investigate the denunciations effectively. 

CNDH officials have also, in some instances, been proactive in promoting reforms to address these problems.  The Fifth Investigative Unit, for example, has carried out effective campaigns to expand press freedoms in Mexico.  The unit's advocacy played an important role in bringing about the passage of legislation to protect journalists from having to reveal their sources in 2006 and to decriminalize defamation in 2007.

Unfortunately, as this report documents, this proactive approach to human rights promotion has not been replicated in many areas of the CNDH's work.  This report's findings are based on extensive interviews with 38 CNDH officials, including its current president and high level officials in all substantive areas of work, as well as with various former CNDH employees, including all former CNDH presidents. The findings are also drawn from extensive interviews and consultation with representatives from local nongovernmental organizations, which have played an essential role in monitoring the CNDH's work since its creation, and with representatives from state human rights commissions, lawyers, journalists, scholars, and leading members of Mexican civil society. Finally, the findings draw upon interviews with numerous victims and relatives of victims of human rights violations.

Human Rights Watch's goal in issuing this report is to provide a fact-based analysis of the reasons the CNDH has not fulfilled its promise, as well as concrete, realizable recommendations on how these deficiencies can be remedied. We hope the analyses and recommendations offered here are useful to CNDH officials, Mexican government officials, and Mexican civil society groups and individuals concerned about human rights and the performance of the CNDH.

Remedies

The CNDH routinely abandons the human rights cases it documents before they are resolved.  After documenting violations and issuing recommendations for redressing them, CNDH officials choose not to monitor implementation of these recommendations to ensure the abuses are remedied. 

CNDH officials offer a variety of explanations for their inaction.  They claim, for instance, that the CNDH's mandate does not allow them to continue monitoring cases if government officials reject their recommendations. 

They claim the mandate does not permit them to continue monitoring the abuse cases that they document in "special reports."  They claim the mandate does not permit them to monitor the government's implementation of "general recommendations," which address systemic practices rather than specific abuses. And they claim that they are not permitted to monitor the work of public prosecutors, which means that they cannot monitor implementation of one of their most frequent types of recommendation: that abusers be brought to justice.

However, the CNDH mandate and Mexican law do in fact allow CNDH officials to continue their work-and actively promote implementation of their recommendations-in all these circumstances.  Indeed, in some important instances, CNDH officials have in fact done so, with positive results.  Yet, too often, by failing to follow up aggressively on its own recommendations, the CNDH, despite the considerable work it does documenting abuses and recommending remedies, has little or no impact on human rights practices in Mexico. 

Reform

In addition to recommending remedies for specific abuses, the CNDH has the power to promote the reforms that are needed to prevent future ones.  Yet, here too, the CNDH has tended to abdicate its authority.  Rather than challenging national laws that are inconsistent with international human rights standards, the CNDH too often does just the opposite, tolerating abusive practices by deferring to existing national laws, rather than advocating their reform. 

The CNDH has also failed to support efforts by other state actors-including the executive and legislative branches-to bring Mexican law into compliance with international human rights standards.

CNDH officials justify the failure to promote reform with an unnecessarily limited interpretation of what their own role can and should be.  Yet on several occasions the CNDH has in fact defied these self-limiting interpretations and played a far more active and constructive role in promoting reform.   If it did so more often, the CNDH would have a far greater impact on curbing human rights abuses in Mexico than it does now. 

Publicity

Negative publicity is the most effective tool the CNDH has for deterring future abuses and pressing authorities to reform problematic laws and policies.  Since the CNDH cannot directly sanction authorities for violating human rights norms, often the best it can do is to "name and shame" them into remedying past abuses and preventing future ones. 

Yet, for the vast majority of the cases it handles, the CNDH does not disclose or disseminate the information it collects. The CNDH resolves 90 percent of the abuse cases it documents by signing "conciliation" agreements with the government institutions responsible for the abuses.  But the commission does not publicly disclose the contents of these agreements, which include both the findings of its investigations and the remedies that the responsible state authorities have agreed to implement.  Nor does it publicize at any time afterward the extent to which these authorities comply with the terms of the agreements. 

The CNDH's practice of not publicizing its findings is not limited to conciliation agreements.  In all its work, the CNDH uses overly broad confidentiality norms, a practice which has the effect of ensuring that abuse victims, as well as the general public, do not have access to the crucial information it holds. 

By not publicizing information in its possession, the CNDH severely limits the impact that its work can have both in terms of deterring future abuses and pressing authorities to reform problematic laws and policies.

Collaboration

The CNDH has failed to engage with a diverse array of actors who can contribute to improving the human rights situation in Mexico.  The commission excludes victims from the "conciliation" process, signing agreements directly with government institutions without involving the petitioners in the drafting of the terms, or even seeking their consent to close cases in this fashion. 

The CNDH has also opposed initiatives by other bodies, including the United Nations High Commissioner for Human Rights, the Interior Ministry's human rights office, and state human rights commissions, aimed at strengthening mechanisms to protect human rights in the country. 

By failing to create a constructive relationship with all relevant actors, the CNDH has helped generate an atmosphere of distrust that hinders human rights progress.

Accountability

The CNDH is not subject to any meaningful oversight.  Independent accountability mechanisms, such as the Congress, the CNDH citizen advisory council, and the Federal Superior Auditor, do not provide adequate monitoring of the CNDH.  Limited transparency within the CNDH, moreover, makes it difficult for civil society groups, journalists, and other private individuals to monitor the work of the institution.

Recommendations

To the CNDH

Actively press state institutions to remedy human rights abuses

While the CNDH's recommendations are not binding on other state entities, the CNDH can and should take concrete steps to promote greater implementation of its recommendations. 

First, the CNDH should end the practice of abandoning its work on cases after issuing recommendations for remedying them.  Specifically, the CNDH should instruct its investigators to actively monitor the handling of abuse cases by government officials, even in the following situations:

• when government officials reject its recommendations;
• when the CNDH presents its findings in a "special report";
• when the CNDH presents its findings in a "general recommendation"; and
• when the CNDH requests government officials to carry out criminal and/or administrative investigations.

Secondly, when the CNDH finds that state actors are failing to implement a recommendation, it should actively press these actors to fulfill their obligations to remedy abuses.  Specifically, it should:

• advocate for administrative sanctions to be imposed on officials who fail to address the human rights violations it documents;
• document and publicly denounce government officials' failure to remedy abuses in accordance with its recommendations; and
• take cases to international human rights bodies when the government fails to respond to its recommendations.

Promote reforms to harmonize Mexican law with international human rights norms

The CNDH should take concrete steps to promote changes to those Mexican laws and policies that directly violate international human rights standards or indirectly serve to perpetuate abusive practices. 

First, it should apply international human rights standards in a consistent and rigorous fashion when evaluating Mexican laws, regulations, policies, and practices.

Secondly, when it determines that such laws, regulations, policies, or  practices contradict international human rights standards, the CNDH should press for their reform.  Specifically, it should:

• draft legislation aimed at harmonizing Mexican law with international human rights standards;
• actively campaign to secure the passage of proposed reforms into law; and
• actively support reform initiatives advanced by other state institutions and non-state actors.

Increase public access to information regarding its work

The CNDH should increase public access to the information it collects on human rights abuses and abusive state practices, and increase transparency in all areas of work.  Specifically, the CNDH should:

• apply the principle of "maximum disclosure" when interpreting all laws and policies and when analyzing all information requests;
• modify its implementing regulations of the federal transparency law to eliminate overly broad confidentiality exceptions and limit the period of time during which it can reserve information on concluded cases;
• grant petitioners access to information held in CNDH files regarding their own cases;
• publically disclose information in all cases of serious human rights violations;
• publically disclose information regarding the conciliation agreements it signs, including the human rights violations documented in the agreements, the reparations agreed upon, and the degree to which government institutions subsequently comply with the terms of the agreements; and
• adopt clear guidelines for producing public versions of documents that withhold only personal data and other privileged and confidential information regarding the identity of petitioners and victims in cases.

Ensure petitioners' participation in the conciliation process

The CNDH should ensure petitioners' participation in the conciliation of abuse cases.  Specifically, it should:

• reach conciliation agreements only in those instances where it has first obtained the explicit consent of petitioners;
• consult with petitioners regarding the content of conciliation agreements prior to signing; and
• keep petitioners informed of the extent to which government officials comply with the agreements.

To the Senate Human Rights Commission

Conduct routine and rigorous evaluations of the CNDH's performance and impact

As the main external overseer of the CNDH's work, the Senate Human Rights Commission should thoroughly evaluate all areas of the commission's work on a regular basis.

First, the Senate Human Rights Commission should conduct public hearings throughout the year to discuss the CNDH's performance.  Specifically, it should:

• ensure that these hearings entail a serious and thorough examination of the CNDH's policies, practices, and results;
• invite civil society organizations and victims of human rights abuses who have taken their cases to the CNDH to meetings in which they can provide insights on the CNDH's work;
• take advantage of the information provided by civil society groups and victims to identify issues that require sustained monitoring and attention throughout the year; and
• organize frequent meetings with the appropriate CNDH staff to discuss progress on identified institutional flaws.

Secondly, the Senate Human Rights Commission should promote civil society participation in the process of vetting candidates for the CNDH presidency and advisory council.  Specifically, it should:

• select a short list of candidates from a list of proposals submitted by civil society organizations, and require the candidates to present their views in public hearings;
• open a consultation process with civil society organizations after the short list is drafted and the hearings take place so as to allow these groups to comment on the candidates and the content of their proposals; and 
• include a detailed and substantive analysis of contestants' qualifications in its final decision, taking into account the input provided by civil society organizations.

Finally, the Senate Human Rights Commission should monitor the CNDH's budget to ensure that the manner in which the funds are spent contributes in the best possible way to its mission and purpose.  To do so, it should:

• request that the Vigilance Commission of the Federal Superior Auditorin the House of Representatives solicit a comprehensive performance evaluation of the CNDH by the Federal Superior Auditor (Auditoria Superior de la Federacion, ASF) to assess whether the CNDH is using available human, material, financial, and technological resources efficiently to fulfill the purposes for which it was created; and
• use the information provided by a performance evaluation by the ASF to analyze the CNDH's work and to press the CNDH to improve its practices.

II - Background

The CNDH's Origins

Mexico's National Human Rights Commission (Comision Nacional de Derechos Humanos, CNDH) was created in 1990, through a presidential decree signed by then President Carlos Salinas de Gortari, to monitor the human rights practices of government institutions and promote increased respect for fundamental rights in Mexico.[1] 

The CNDH's creation followed many years of human rights advocacy by Mexican nongovernmental organizations, which had documented abuses committed by the government during the country's "dirty war" and in the years thereafter.[2]  Various human rights advocates had received death threats at the beginning of 1990.  One case that received extensive national and international attention was the murder, on May 21, 1990, of Norma Corona, an activist who had documented abuses committed by the judicial police.  Her assassination was widely seen as an attempt to silence the human rights community in Mexico.  (At the request of Salinas, this was one of the first cases addressed by the CNDH.)[3] 

Attention from the international community also increased the pressure on the government to deal with its human rights problems.  In May 1990 the Inter-American Commission on Human Rights (IACHR) held that Mexico had violated political rights established in the American Convention on Human Rights during the 1985 election of deputies in the state of Chihuahua, the 1986 municipal elections in the capital of the state of Durango, and the 1986 elections for governor of the state of Chihuahua.[4]  International nongovernmental organizations also pushed the government to act.[5]

The CNDH, originally created as part of the Interior Ministry, was transformed into a "de-centralized agency" by a 1992 constitutional reform, which granted it legal standing independent of the executive branch.  The "Law on the CNDH," passed that same year, granted the institution exclusive authority to design its own internal rules and administer its resources.[6]  The CNDH's budget still depended on the executive branch, however, and the president continued to appoint the CNDH president and its council members (though these appointments now required the Senate's approval). 

The CNDH became a fully autonomous agency in 1999, thanks to a constitutional reform that granted it complete independence from the executive branch.[7]  The CNDH president and council members are now appointed by the Senate, which must consult with civil society organizations prior to the appointments.

The CNDH's budget has steadily increased since it became an autonomous agency, reaching 801 million pesos (approximately US$73 million) in 2007.[8]    It is, by far, the highest budget of any ombudsman's office in the Americas. And with a staff of more than 1,000 employees, it is one of the largest national human rights commissions in the world.[9] 

The CNDH's Mandate, Structure, and Methods

The CNDH's formal mandate is to "protect, observe, promote, study, and disseminate the human rights protected by the Mexican legal system."[10]  While it is prohibited from analyzing electoral and labor issues, as well as decisions by actors within the judicial system, this mandate provides broad room for addressing a wide range of pressing human rights problems in Mexico. 

The CNDH has five investigative areas, called visitadurias, which carry out most of the CNDH's substantive work, following guidelines established by the CNDH president and the institution's internal rules.[11] 

The CNDH's modus operandi entails investigating and documenting human rights abuses and then employing a variety of instruments to resolve the cases.  The most common instrument used in cases of serious human rights abuses is a public document that details the violations and identifies steps that state institutions should take to redress them.[12]   This document is formally known as a recomendacion, or "recommendation." (A recomendacion often contains multiple specific recommendations directed at multiple state agencies.)  When documenting generalized practices or systemic abuses, the CNDH may issue a "special report" or a "general recommendation," which also usually recommend ways in which the government should address the documented abuses.[13] 

For cases involving abuses that do not rise to the level of "serious" human rights violations, the CNDH can also issue a public recomendacion but must first attempt to "conciliate" the case by means of a signed agreement with the government authority responsible for the documented abuses.[14]  These written "conciliation" agreements contain analyses of the human rights violations and outline the steps that the government authorities have agreed to take to redress them.  The CNDH uses this mechanism to resolve 90 percent of the abuses it documents. 

The CNDH's Contribution to Human Rights Promotion

The CNDH has played a valuable role in identifying human rights problems in Mexico and, in some cases, pressing the government to act in response to them. 

In 1995, for example, the CNDH documented the Aguas Blancas massacre in which 17 people died and many others were injured after an intervention by police forces.[15] Former president Zedillo used the recomendacion issued by the CNDH to request the Supreme Court to analyze the case, which led to the court's first truth-commission style report.[16]  Both the CNDH recomendacion and the Supreme Court's report were later used by the Inter-American Commission on Human Rights (IACHR) to establish the government's responsibility for the massacre and to condemn its failure to follow up and ensure that justice was done.[17]

In 1996 the CNDH documented the illegal detention, torture, and extrajudicial execution of Reyes Penagos Martinez in Chiapas, which formed the basis for building a criminal case against those responsible.[18]  It was, as well, an important source used by the IACHR in reaching an amicable settlement between the government and the victim's representatives.  As a consequence of this settlement, the state government publicly apologized for the abuses, the victims obtained monetary reparations, and there have been some positive developments in the investigations, including one indictment.[19]

More recently, in 2001, the CNDH elaborated a detailed report that documented "disappearances" during Mexico's "dirty war," which was the starting point for the creation of a special prosecutor's office to promote justice for these crimes.[20]

In January 2005 the CNDH created an office to address human rights violations suffered by migrants, a critical step toward addressing this complex problem in a meaningful way after years of limited action.  Since then, the CNDH has opened eightoffices throughout the country; issued one "general recommendation," 19recomendaciones in specific cases, and a "special report" on the situation in migrants' stations; and allowed specialized NGOs to conduct training of CNDH staff.[21] 

In 2006 the CNDH published the National Diagnosis on Penitentiary Supervision, which evaluates 191 prisons (76 percent of all state prisons in the country) through a series of indicators that assign a numeric value to the level of these facilities' compliance with international standards. The purpose of this diagnosis is to assist state governments in deciding where and how to begin addressing the problems in the penitentiary systems in their own jurisdictions.[22]

The CNDH has also adopted measures to raise public awareness about human rights norms in Mexico.  For instance, in December 2002 the CNDH issued an interactive CD-ROM that includes information onthe CNDH, human rights norms, and international law; a proposed capacity-building course; and music and games for children.[23]  The CD-ROM has been widely distributed in the country and, in 2006 alone, the CNDH employed it in approximately 300presentations in various states.[24] 

III - Mexico's Obligations Under International Law

Obligation to Provide a Remedy

Mexico is party to several international treaties that impose an obligation to respect, protect, and fulfill the human rights listed in the treaties. Those same treaties also impose on the Mexican state the obligation to deter and prevent violations, and to investigate and remedy violations of those rights.[25]

Under international law, governments have an obligation to provide victims of human rights abuses with an effective remedy-including justice, truth, and adequate reparations-after they suffer a violation.  According to the International Covenant on Civil and Political Rights (ICCPR), governments have an obligation "to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy."[26]   The ICCPR imposes on states the duty "[t]o ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy."[27]  The American Convention on Human Rights (ACHR) states that every individual has "the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights."[28]   With regard to the "obligation of the States Parties to 'ensure' the free and full exercise of the rights recognized by the convention," the Inter-American Court of Human Rights has held:

This obligation implies the duty of states parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights.  As a consequence of this obligation, the states must prevent, investigate and punish any violation of the rights recognized by the convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.[29] 

Obligation to Inform

In addition to the obligation to investigate and prosecute, states have an obligation to provide victims with information about the investigation into the violations.

Victims have a right to know the truth about violations they suffered.  The UN General Assembly has endorsed the principle that victims' right to remedies includes having access to relevant information concerning human rights violations.[30]  International principles adopted by the UN Commission on Human Rights state that "irrespective of any legal proceedings, victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place."[31] 

International human rights bodies have emphasized the state's obligation to provide information to victims, particularly in cases of enforced disappearance. The UN Human Rights Committee has held that the extreme anguish inflicted upon relatives of the "disappeared" makes them direct victims of the violation as well.[32] To the extent the state fails to inform relatives about the fate of the "disappeared," it fails to fulfill its basic obligation to bring an end to the violation.[33]  Similarly, the Inter-American Court has held that states' obligation to provide reparation to victims of abuses translates into an obligation to provide family members with information about what has happened to people who have "disappeared."[34]

Given this duty to inform, the duty to investigate violations must be understood as distinct from the duty to prosecute them.  According to the Inter-American Court,

The duty to investigate . . . continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.[35]

In addition to informing the victims and their families, the state has an obligation to inform society in general about human rights abuses, particularly when they are serious violations.  This obligation derives partly from its duty to prevent future violations.   According to the UN Commission on Human Rights:

Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration ofheinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.[36]

Similarly, the Inter-American Commission on Human Rights has established that "Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future."[37] 

The right to "seek, receive, and impart" information is recognized in the Universal Declaration of Human Rights, the ICCPR, and the ACHR.[38]  Although to date this has primarily been invoked to prevent states' illegitimate interference or restriction on individuals or the media accessing information that is available, there is growing international recognition that the right also encompasses a positive obligation of states to provide access to official information. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual.[39] In the Americas, the Inter-American Court has held that article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices' obligation to provide it.[40] Moreover, it is internationally recognized that the right of access to official information is crucial to ensure democratic control of public entities and to promote accountability within the government.[41]

According to the "Principles on Freedom of Information Legislation," endorsed by the UN and Inter-American human rights systems, the right of access to information is governed by the "principle of maximum disclosure."[42]  In other words, the government is presumed to be under an obligation to disclose information, a presumption that can be overridden only under circumstances clearly defined by law in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.[43]

Victims' Right to Participate

Under international standards, states should ensure that victims can participate in proceedings designed to remedy human rights violations. 

International treaties provide victims of human rights abuses with the right to a remedy, and such a remedy must respect and protect their rights and role in the process. Both the Inter-American Court and the European Court of Human Rights (ECHR) have held that victims and their families have a right to be involved in investigations into the events that resulted in a violation of their rights.[44]  According to the ECHR, "the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests."[45]  The International Criminal Court (ICC) held in 2006 that victims also have a right to participate in the investigative phase.[46]

Article 8(1) of the ACHR states that "Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, … for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature." And, according to article 14 of the ICCPR, "In the determination … of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

According to international principles adopted by the UN General Assembly:

The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; [and by] b)  Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.[47]

Applicability to the CNDH

While these obligations to provide a remedy, to inform and publicize, and to ensure victims' participation have generally been construed with specific reference to judicial and administrative procedures, they are also applicable to other institutional mechanisms established by states to ensure the protection and promotion of human rights, in particular to institutions charged with investigating or adjudicating on human rights violations. 

The Inter-American Court has held that any process, "whatsoever [its] nature," that leads to a decision regarding a person's rights and obligations must be carried out respecting due process guarantees established in the American Convention.[48]  According to the court, these guarantees do "not apply merely to judges and judicial courts."  Rather,  "[t]he guarantees established in this provision must be observed during the different procedures in which State entities adopt decisions that determine the rights of the individual, because the State also empowers administrative, collegiate, and individual authorities to adopt decisions that determine rights."[49] 

The CNDH is bound by these obligations.   This is true in part because a state's obligations under international human rights law are shared by all the institutions and agencies that constitute that state. These principles are especially relevant to the work of the CNDH given its role as the state's principal institution dedicated to the promotion and protection of human rights. 

The CNDH's goal should be to ensure that Mexico meets its international human rights obligations.[50] In order to do that the CNDH needs to ensure that other state institutions meet their obligations to provide remedies, to inform, and to promote victim participation. 

Yet, the CNDH itself regularly makes decisions that have immediate and direct impact in determining the rights of the individual.  The CNDH's determinations in specific cases may be intended as merely a catalyst, prompting judicial and other state institutions to make their own final, authoritative, and enforceable determinations.  Yet, as a practical matter, given that these other institutions routinely fail to act without the CNDH's intervention, the CNDH's determinations themselves are a decisive factor in the multifaceted process through which the Mexican state determines the rights of individuals.  Indeed, the victims of abuse who take their cases to the CNDH may reasonably view the institution as the only viable guarantor of their rights. 

The applicability of some of these principles to the work of human rights institutions like the CNDH is reflected in the "UN Principles relating to the Status of National Institutions," known as the Paris Principles, which set out the basic guidelines recommended by the UN for the establishment and functioning of national human rights institutions.  These principles were endorsed by the UN Commission on Human Rights in 1992 and by the UN General Assembly in 1993.[51] 

In recommending methods of operation, the Paris Principles establish that national human rights institutions should publicize their work by stating that they shall "address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations."[52]  The principles also state that human rights institutions shall "publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs."

Furthermore, the CNDH is subject to Mexico's Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental), which incorporates into domestic law international standards regarding the state's obligation to inform and publicize.  The law's purpose is to guarantee access to information held by all federal entities, including autonomous constitutional agencies such as the CNDH, and specifically states that when interpreting it, public entities must apply the "principle of maximum disclosure."[53] 

IV - Remedies

The CNDH cannot impose penalties or punish government officials who commit abuses.  Instead, it must call on other institutions to do the sanctioning, either through criminal prosecution or administrative procedures, or both.  If those institutions refuse to do so, the CNDH will have failed to achieve one of its most fundamental objectives: guaranteeing the abuse victim's right to a remedy.  

The CNDH should therefore do everything it can to make sure those institutions fulfill their obligation to redress the human rights violations it documents.   Yet the CNDH routinely fails to do so.  After documenting abuses and issuing recommendations for remedies, CNDH officials effectively abandon many cases.  When the corresponding state institutions fail to implement their recommendations, the CNDH often remains silent. 

CNDH officials offer all sorts of explanations for their silence and inaction.  They claim, for instance, that the CNDH's mandate does not allow it to continue monitoring cases in instances in which government officials reject its recommendations.  They claim they cannot monitor implementation of "general recommendations" they made regarding systemic practices.  They claim they cannot continue monitoring cases after they issue "special reports" that do not contain specific recommendations.  And they claim that they cannot monitor the work of public prosecutors, which means that they cannot monitor implementation of one of their most frequent type of recommendation: that abusers be brought to justice. 

However, an examination of the CNDH's mandate and Mexican law makes clear that CNDH officials are allowed to continue their work-and actively promote implementation of their recommendations-in all these circumstances.  Indeed, in some important instances, CNDH officials have in fact done so, with positive results.  Yet, too often, by failing to follow up aggressively on its own recommendations, the work that the CNDH does documenting abuses and recommending remedies may have little or no impact on human rights practices in Mexico. 

Failing to Follow Up: Paradigmatic Cases

The CNDH's failure to effectively follow-up on its recommendations has been evident in high profile cases that have shaped public perception of human rights in Mexico in recent years. 

The CNDH has made important contributions in documenting abuses and highlighting the state's obligation to address them by, among other things, providing remedies to the victims.  Yet undermining these achievements is the consistent failure of the CNDH to take serious steps to ensure that the relevant state authorities implement its recommendations and that the victims are provided the remedies guaranteed to them by Mexican and international law. 

Crimes of the "Dirty War"

One of the most important documents produced by the CNDH is its recomendacion, released in 2001 after ten years of investigation, documenting hundreds of enforced disappearances committed by state security forces during the "dirty war" in the 1960s and 1970s.[54] The CNDH examined 532 cases and concluded that there was sufficient evidence to establish that at least 275 individuals had been arrested, tortured, and "disappeared" by state forces.  (It did not rule out the possibility that the other 257 individuals had also been "disappeared" during that time.)  The CNDH called on President Vicente Fox to order the federal attorney general to appoint a special prosecutor to investigate and prosecute these crimes.[55] 

In November 2001, following the CNDH's interventionFollow, the government created a special prosecutor's office to investigate and prosecute the abuses.[56]  The executive order establishing this office specifically instructed the Defense Ministry to turn over to the prosecutor's office any information relevant to the cases to be investigated. And it instructed the Interior Ministry to release secret government archives with information on these abuses, so that they would be readily available to the special prosecutor, as well as to the public at large.

The creation of the Special Prosecutor's Office was an historic initiative for Mexico. It held the promise that, after many years of denial, Mexican authorities would finally investigate the crimes and "disappearances" committed during the "dirty war" years, something they had failed to do for over three decades. 

Yet during its five year existence, the Special Prosecutor's Office produced very limited results.[57]  It did not obtain a single criminal conviction.  Of the 532 cases analyzed by the CNDH, the special prosecutor filed charges in only 16 cases, obtaining indictments in only nine of them.[58]  And it was able to determine the whereabouts of only six "disappeared" individuals.  (It found that four of these were sent to psychiatric institutions, and two were killed while in detention.)[59]

The failure of the initiative was entirely foreseeable.  Within the first year of its existence it became clear that the Special Prosecutor's Office was not receiving the active support it needed from other state institutions.  The Fox administration failed to ensure that it possessed the resources, credibility, and powers it needed to succeed.  The Mexican military stonewalled investigators and interfered with prosecutions by pressing charges in military courts against military officers for the same crimes the special prosecutor was handling (once the defendants were acquitted in military courts, they would be immune from prosecution in civilian courts).[60]  And the Federal Investigation Agency (Agencia Federal de Investigacion, AFI) was unable or unwilling to execute a majority of the arrest warrants obtained by the special prosecutor.[61]

After playing such an instrumental role in bringing about this historic initiative, the CNDH did virtually nothing to help the Special Prosecutor's Office overcome these obstacles.   Instead, the commission remained largely silent and inactive as the office confronted one setback after another and only spoke up clearly about the office's failures when it was finally closed in 2007 and it was too late to make a difference.[62]  

The reason for this silence, according to the investigator in charge of the case, was that the CNDH does not comment publicly while government authorities are attempting to implement its recommendations.  It is a highly questionable policy, but even if it were justifiable, there are plenty of other ways the CNDH could have helped to salvage this initiative.  It could have investigated and denounced the military for stonewalling and interfering with investigators.  It could have protested strongly when the "dirty war" cases were turned over to military courts in flagrant violation of the Mexican Constitution.  It could have denounced the failure of both the Ministry of Defense (Secretaria de la Defensa Nacional, SEDENA) and the Interior Ministry (Secretaria de Gobernacion, SEGOB) to ensure that key archives turned over by the latter were adequately equipped with indices and catalogues.  It could have investigated and denounced the repeated failure of authorities to execute arrest warrants that the special prosecutor had obtained from judges.

Rather than performing any of these critical functions, the CNDH chose instead to watch passively from the sidelines as the enormous potential impact of its 2001 report was squandered. 

Crackdown in Guadalajara

Given that the recommendations made by the commission are not binding, government authorities may reject them.  It is hardly surprising that they frequently choose to do so.  What is surprising is that the CNDH responds to these rejections by closing the cases in question rather than pressing for implementation.   

On May 28, 2004, in Guadalajara, after participants in an anti-globalization demonstration clashed with security forces, Jalisco state police and Guadalajara city police rounded up 118 people, some as they sat in public parks or strolled down the street, and some even as they were being treated in a Red Cross clinic. During this time, more than 70 people were arbitrarily detained. The majority of the detainees were then illegally held incommunicado; and 55 were subject to cruel and inhumane treatment, including 19 who were tortured with the aim of coercing them into signing self-incriminating statements and providing information.[63]  

The CNDH issued a report that documented the torture and other abuses committed by the police and called on the then governor of Jalisco, Francisco Ramirez Acuña, to seek administrative and criminal investigations into the abuses.[64]  But Ramirez Acuña rejected the CNDH's work, declaring that he had "no obligation whatsoever to respond."[65]  Rather than disciplining the police responsible for the abuses, he held a public ceremony honoring them for their participation in the crackdown.[66]

The CNDH's report also called on the municipal president of Guadalajara to seek administrative and criminal investigations of municipal police involved in the crackdown.[67]  Unlike the state government, the city government did conduct an investigation, but concluded that the human rights violations documented by the CNDH had been committed by state police and should therefore be investigated by state authorities.[68] 

After the governor's rejection of its findings, the CNDH did virtually nothing to ensure that justice was served in the cases it had documented.[69]   It issued statements regretting the governor's position, as well as another endorsing an initiative by federal legislators to investigate the state's handling of the case.[70]  But it could have done much more.  For instance, it could have launched a far more vigorous and sustained campaign to denounce the governor's refusal to provide victims with a remedy.  It could have raised questions about the governor's appointment as interior minister by President Felipe Calderon in 2006 (as the Citizens Council of the Jalisco State Human Rights Commission did).[71]  It could have issued a new report focusing on the problem of impunity in the cases it had already documented.   It could have issued recommendations directly to the state prosecutors, rather than rely on the governor to initiate the investigations.  

For three years, the CNDH did none of these things.  Instead, it deferred to the governor and dropped the case.  As recently as August 2007, the CNDH refused petitions by the victims to take up the cases again, arguing that its norms did not allow it to follow up after issuing a "special report."[72] 

Only after this refusal was published in local and national newspapers did the CNDH finally change course, telling the victims' representative that it would request the new governor of Jalisco to investigate the abuses.[73]  Thanks, in part, to this long overdue intervention, the new governor of Jalisco announced in December 2007 that he would conduct investigations into the abuses documented by the CNDH.[74]  It remains to be seen how serious this commitment to accountability will be.  At this writing, no one has been brought to justice for the egregious abuses that took place in Guadalajara in 2004. 

Crackdown inAtenco

In May 2006, a clash between police and residents of San Salvador de Atenco left dozens of police officers and rioters injured, and two residents dead from gunshot wounds.  After the police attempted to evict flower vendors from the streets, residents attacked them with Molotov cocktails and machetes, and held several officers hostage overnight, until thousands of officers moved in to free the hostages and take control of the town.

Responding to widespread reports of police brutality, the CNDH investigated what had taken place and issued a report the following November, which documented egregious abuses.  According to the CNDH, the federal and state police had illegally arrested 145 individuals inside their homes, and subjected 207 detainees to inhuman, cruel, and unusual punishments.  At least 11 women and 15 men were tortured, and 26 detained women were victims of sexual abuse.  It also found that the federal government, after conducting illegal and irregular proceedings, had expelled five foreigners who reportedly participated in the demonstrations.[75] 

The CNDH called on the federal Ministry of Public Security (Secretaria de Seguridad Publica, SSP) and the governor of the state of Mexico to provide information to competent authorities so they could investigate federal and state police officers accused of having committed abuses.  It also recommended that both institutions conduct training of law enforcement agents on what constitutes appropriate use of force, and provide monetary compensation to those whose physical integrity was violated during the events.  Finally, the CNDH requested that the National Institute of Migration (Instituto Nacional de Migracion, INM) carry out administrative investigations of the public officials involved in expelling the five foreigners.[76] 

The CNDH investigators handling the case told Human Right Watch that the CNDH has closely monitored the state government's response, examining its compliance with its obligation to investigate the role of the 1815 members of the State Security Agency (Agencia de Seguridad Estatal) who participated in the confrontation.  According to the investigators, the CNDH has requested information on investigations by state authorities every 15 days, and analyzed how they were carried out.[77]   In its 2006 annual report, it provided a detailed account of the information it had received on what activities the state government had carried out, what the results were, and what remained pending.  According to this report, a series of criminal investigations were initiated at the state level, and nine state officers received administrative sanctions (four officials were removed from their posts and five were suspended for 90 days).[78]

But the CNDH has not followed up on its recommendations to the federal government.  The CNDH investigators in charge of this case claim they can do very little follow-up on recommendations that are rejected by government authorities.  After the federal minister of public security rejected their recommendations, they say, the CNDH could only make public the fact that its recommendations were rejected.[79] And they did so through strongly worded press releases and several statements in the media.[80] 

The CNDH did not, however, publicly challenge the reasons provided by the minister of public security in rejecting the CNDH's recommendations.  In a 57-page document, the minister responded to the CNDH's findings and recommendations, arguing that the CNDH did not adequately document the facts, and that there was no evidence that federal police officers had committed abuses.[81]  Instead of just criticizing the minister of public security for not accepting the recommendations, the CNDH could have responded to those arguments, explaining clearly why its findings were accurate, thus pushing the ministry to deal with the documented abuses.  It also could have used the opportunity of the minister's appointment as federal attorney general, the official in charge of carrying out investigations, to reiterate its concerns more prominently.

The CNDH did not make the effort to publicly refute the minister of public security's case for non-implementation.  More than a year after the events, only nine police officers have received limited administrative sanctions and victims of torture have yet to receive compensation.

Murders of Women in Ciudad Juarez

The case of Ciudad Juarez offers one of the most dramatic examples of the CNDH's mixed record in promoting human rights.  Unlike the cases described above, Ciudad Juarez represents an instance in which the CNDH has played an active role in following up on its recommendations to state authorities.   Unfortunately, it waited five years to do so. 

In 1998, the CNDH produced a comprehensive report that examined the murders and "disappearances" of women in Ciudad Juarez, in the state of Chihuahua.  The report documented the serious mismanagement of the cases by local law enforcement authorities.   The report found, for example, that authorities had failed to conduct autopsies and interrogate witnesses in some cases.  In others, in which there was evidence of sexual abuse, they had failed to examine the possible presence of semen in victims' bodies.  Authorities had sometimes waited days or even weeks to investigate reported "disappearances" and murders.  In one case, authorities had failed to question a person whose I.D. card was found in the victim's shoes.[82]

The CNDH called on the governor of Chihuahua to see to it that administrative and criminal investigations were opened against specific high-level state officials who had failed to investigate the cases.  It also called on the governor to take steps to ensure that the crimes against women were investigated in a more serious fashion and to improve the quality of public security and administration of justice generally within the state.  The governor accepted the latter recommendations but rejected the call to investigate the authorities responsible for the state's mishandling of the cases.[83]

For the next five years, the CNDH did only minimal follow-up on these recommendations, and only on the ones that had been accepted.  The follow-up consisted of periodically requesting information from state and municipal government officials and briefly mentioning in annual reports that the authorities had failed to provide it.[84]  The CNDH also communicated with relatives of the victims to assess state implementation, but it did not use the information it gathered from them to make official public statements that would push state authorities to act.[85]  Most significantly, the CNDH did not monitor the state government's actions to see whether it was holding high level state officials, including the state prosecutor, accountable for failing to address these cases seriously.[86]  

Given the lack of follow-up, it is hardly surprising that the CNDH's 1998 report had little or no impact on the problem of violence against women.  Over the next five years, the murders and "disappearances" continued unabated.  An additional 187 women were murdered[87]and 28 "disappeared."[88]   

Beginning in 2001, the ongoing violence and impunity began to draw international attention, thanks in large part to the efforts of local NGOs.  A wide range of international monitors visited Chihuahua and issued reports on the situation.  These included the UN Special Rapporteur on the Independence of Judges and Lawyers, the United Nations Committee Against Torture, the Special Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights, two experts from the Committee Against the Elimination of Discrimination Against Women, and the United Nations Office on Drugs and Crime.  Several international nongovernmental organizations, including the Washington Office on Latin America and Amnesty International, also conducted research and advocacy that reinforced the efforts of local NGOs to end impunity for these crimes. 

It was only after years of mounting pressure at the national and international level that the CNDH decided to take action.  In 2003, it issued another report on the situation in Ciudad Juarez in which it concluded that the state had failed to implement some of its key recommendations from five years earlier.[89]  During this time, it found, the irregularities and abuses by police and prosecutors had not only continued, but in fact had worsened.  In many cases, the authorities had not conducted investigations of individuals notwithstanding the existence of strong evidence against them.  Prosecutors mistakenly closed cases before completing even the most basic tasks, such as identifying the victim. 

Most disturbingly, law enforcement officials had turned to coerced confessions.  The CNDH found eighty-nine instances in which the suspects in these crimes had "spontaneously confessed" before the public prosecutor, only to recant the confession before a judge, claiming that they had been subjected to torture. The CNDH concluded that the use of physical or psychological violence to obtain confessions appeared to be a regular practice within the state prosecutor's office.[90] 

The 2003 report was an example of precisely the sort of follow-up that the CNDH should have been doing all along. It clearly and thoroughly documented the state's failure to act on its previous recommendations, and put forward recommendations on ways to improve implementation.  For example, the new report called on the federal government to appoint a special prosecutor who could work with state authorities in advancing the criminal investigations of the murders and "disappearances."   It called on the state's Special Prosecutor's Office for the Investigation of Homicides of Women in Juarez (Fiscalia Especial para la Investigacion de Homicidios de Mujeres en el Municipio de Juarez, Chihuahua) to, among other things, investigate these cases correctly.  And it reiterated its recommendation that state officials who had grossly mishandled these cases be disciplined and even criminally prosecuted.[91] 

Unlike what took place in the aftermath of its 1998 report, following the release of its 2003 report the CNDH engaged in serious and aggressive follow-up.  The CNDH's 2003 annual report held that neither the state government nor the municipality of Juarez had adequately implemented its 1998 recommendations.[92]  The CNDH established an office in Ciudad Juarez charged with monitoring implementation (as well as addressing human rights issues related to migrants at the border.)  It issued over 40 press releases about the situation in Ciudad Juarez and raised its concerns with representatives from the United Nations, the Inter-American Court of Human Rights, the European Parliament, and the European Union.[93]  In 2004, it published a follow-up report on the government's implementation of its recommendations, followed by another report, released in 2005 at the behest of the Mexican Congress, assessing the situation.[94] 

The CNDH's interventions played an important role, along with the also critically important efforts of the National Commission to Prevent and Eradicate Violence Against Women in Ciudad Juarez (Comision para Prevenir y Erradicar la Violencia contra las Mujeres en Ciudad Juarez) and local NGOs, in generating political pressure at the state level to address the ongoing problems.  In October 2004, the new governor of Chihuahua appointed a new attorney general, Patricia Gonzalez, who set about changing how the state handled these cases, increasing the emphasis on investigative techniques and strengthening the internal offices that take action against officers who commit abuses.[95]  In 2006 the Chihuahua legislature passed a comprehensive justice reform that provided Gonzalez with tools to carry out her work.[96]  Since then, more than 170 cases of violence against women have been successfully prosecuted.  An additional 66 cases are pending before the courts, while 16 have been sent to the juvenile justice system.  More than 130 other cases are under investigation.[97]  

The National Commission to Prevent and Eradicate Violence Against Women in Ciudad Juarez also made very important contributions to this progress by, among other things, supporting the work carried out by the Argentine Forensic Anthropology Team (Equipo Argentino de Antropologia Forense, EAAF).[98]  The EAAF, which has been working under the auspices of the state prosecutor's office in Ciudad Juarez to obtain samples from bodies and family members in order to match their DNA results, has obtained DNA samples from at least 80 bodies and 193 family members, and has succeeded in identifying 27bodies.[99]  

The case of Juarez illustrates the enormously constructive role that the CNDH can play after it documents abusive practices.  Unfortunately, it took the institution five years to assume this constructive role.  For the victims and their families, the cost of that delay is incalculable. 

How the CNDH Limits Its Own Mandate

The four cases above are not isolated examples.  Rather, they reflect broader CNDH failure to push for implementation of its recommendations.  CNDH officials justify this failure by citing supposed limitations on the institution's mandate.  However, a close examination of the governing legal and regulatory framework and actual practices of the CNDH reveals that the limitations that these officials cite are often self-imposed. 

Rejected Recommendations

The law governing the CNDH explicitly states that the "CNDH's role is to follow up and to ensure that the recomendacion is totally complied with" and that this follow-up function includes cases in which the "recomendacion [is] not accepted."[100]  The CNDH can "close" cases only after the follow-up ends.[101]  CNDH officials, however, insist that they can only follow up to ensure implementation of their recommendations if the government authorities accept them.[102]   Consequently, when recommendations are rejected, the CNDH often stops working on them, thereby abandoning the cases and leaving the victims without access to remedies to which they are entitled.   

In the case of the Ciudad Juarez murders, for example, the CNDH chose not to monitor the state's handling of charges of serious negligence on the part of high-level officials after the state government rejected the relevant recommendations in 1998.[103]  Similarly, in the case of police brutality in Atenco, the CNDH did not continue to monitor the federal government's handling of the abuse allegations after the federal minister rejected its recommendations.[104]  

The CNDH's passivity in the Ciudad Juarez and Atenco cases has been repeated in many other instances.  Of the 354 recomendaciones that the CNDH issued on specific cases between 2000 and 2006, 70 (or 20 percent) were rejected by the government authorities who received them.[105]  According to its own self-limiting interpretation of its mandate, the CNDH had no choice but to abandon its work on these cases, and it appears to have done so in many such cases.

In July 2004, for example, M.A.C.C., a minor, was allegedly detained, beaten, and raped by police officers in Ciudad del Carmen, state of Campeche. The CNDH concluded that M.A.C.C. had been beaten and that the rape allegation warranted further investigation.[106]  The CNDH recommended criminal and administrative investigations.  On December 1, 2005, the president of the municipality of Carmen notified the CNDH that it had rejected the recommendations.[107]  The CNDH closed the case on December 21, 2005.[108]

In 2003 the CNDH found that officers from the Military Prosecutors' Office (Procuraduria General de Justicia Militar, PGJM) and from the Military Judicial Police had arbitrarily detained hundreds of soldiers from the army's 65th Infantry Battalion(based in Guamuchil, Sinaloa), holding them incommunicado for four or five days and subjecting them to physical and psychological abuse, including torture.  The CNDH recommended that the PGJM conduct both criminal and administrative investigations into the officers responsible for these abuses, establish instruction in human rights law, and protect the confidentiality of military personnel who had collaborated with its investigation.[109]  The PGJM rejected the recommendations on May 15, 2003.[110]  The CNDH closed the case on May 20, 2003.[111] 

In 2004 the CNDH documented the case of Daniel Torres, who had reported being beaten and tortured by police officers who subjected him to electric shocks in an effort to get him to confess to a murder.  The CNDH concluded that the police had arbitrarily detained Torres and that there was extensive evidence to support the claim of torture.[112]  The CNDH recommended that the state government initiate criminal and administrative investigations of the police officers involved in the detention.  But when the governor failed to respond to the recomendacion within 15 days, the CNDH concluded that he had rejected it.[113]  According to the CNDH's interpretation of its mandate, there would be no follow-up on the case.  Indeed, there is no mention of it in the follow-up section of the CNDH annual reports of 2005 and 2006.

In 2004 the CNDH documented the case of Juan Antonio Ortiz Rivera, who had been arbitrarily detained and beaten by the Municipal Police of Chihuahua City.[114]  The CNDH recommended that administrative proceedings be initiated against the police.[115]  But when the municipal government did not respond to the recomendacion, the CNDH concluded that it had been rejected.[116]  The CNDH did not mention whether or not it would follow-up on its recommendations, but since the case is not mentioned in the follow-up sections of the CNDH reports of 2005 and 2006, it is reasonable to conclude that it did not.

In 2004 the CNDH documented the case ofJaime Arias Sealauder, concluding that he had been subject to physical abuse by judicial police in Tijuana.  The CNDH analyzed a medical report by the Attorney General's Office (Procuraduria General de la Republica, PGR), which documented hemorrhagic spots in his stomach area, side and back, as well as a cut on his upper lip, and determined that the injuries were inflicted, probably with the intention of harming him, while he was in detention.[117]  The CNDH recommended that the governor of Baja California give instructions to initiate criminal and administrative investigations. On September 22, 2004, the state rejected its recommendations.[118] On November 12, 2004, the CNDH closed the case.[119] 

In January 2004, 15-year old Julio Cesar Vazquez Mezafell from the roof of his home in TlaxcalaState.  During the course of the next 18 hours, Julio was transferred to different hospitals six times, and died on his way to the last one.[120] The CNDH concluded that the Health Ministry of Tlaxcala, the governor of Tlaxcala, one of the doctors who refused to treat Julio, and the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) violated Julio's rights to health and to appropriate medical care.[121]  The CNDH recommended that the IMSS conduct an administrative investigation into the case and provide monetary reparations to Julio's parents.   It also recommended that the governor of Tlaxcala adopt measures to improve health services in the state.  The general director of the IMSS rejected the recommendations on August 18, 2004.  The governor accepted only some of the recommendations.  The CNDH closed the case entirely, considering that a partial acceptance was not sufficient to follow up after it issued a recomendacion.[122]

Accepted Recommendations

Even when its recommendations are accepted, the CNDH often fails to ensure that they are actually implemented.  This practice is particularly pronounced in the case of recommendations involving criminal or administrative investigations. (Approximately half of the recomendaciones the CNDH issued between 2000 and 2006 called for criminal or administrative investigations, or both).

In the case of criminal investigations, CNDH officials argue that they do not have the legal authority to scrutinize the work of public prosecutors.  They cannot monitor the progress of criminal investigations,[123] nor evaluate their quality.[124]  The reason, they claim, is that Mexican law only allows them to request that investigations be carried out, but it is entirely up to the prosecutors themselves to determine how this is done.

The law and regulations governing the CNDH do not limit follow-up on cases in this way.  On the contrary, they explicitly grant the CNDH the authority to monitor criminal and administrative investigations of the human rights abuses it has documented.[125]  Moreover, successive CNDH presidents have recognized that the institution has this power.[126]  And in fact, the CNDH has monitored and publicly criticized the work of prosecutors on multiple occasions.[127]     

The negative impact of the CNDH's misreading of its mandate was evident in its handling of the "dirty war" cases.  While its report on the "dirty war" crimes led to the creation of a special prosecutor's office, the CNDH did virtually nothing to address the shortcomings of the office and the obstacles put in its way by other government institutions. 

The CNDH's passivity was also evident in another high-profile case, involving Rodolfo Montiel and Teodoro Cabrera,two peasant leaders involved in environmental activism in the mountains of Guerrero state.   Montiel and Cabrera were detained by soldiers in 1999 and held illegally for two days before being turned over to civilian authorities.   The two men reported that they had been tortured during their detention.  The CNDH issued a recomendacion in which it concluded that the two had been subjected to arbitrary detention and tortured.[128] It called on military prosecutors to initiate a criminal investigation.[129]  The military prosecutor's office examined the case and decided not to press charges, arguing that there was no evidence of torture.[130]  Yet even if there was insufficient evidence to prove torture, there was very clear evidence of arbitrary detention.[131]  The CNDH did not denounce the military prosecutors' mishandling of the allegations, choosing, rather, to end its follow up and close the case.[132]

Another way the CNDH limits its follow-up function is by issuing recommendations that only call for investigations to be initiated.[133]  The commission considers that its involvement in these cases should cease if an investigation is initiated, irrespective of whether the investigation is carried out in a satisfactory manner and completed, and regardless of whether or not the victims ever obtain a remedy. 

In 2000, for example, the CNDH documented that PGR officials had used excessive force to detain Guadalupe Carrasco Licea, causing bruises and cuts on her neck, arms, and chest.  The CNDH recommended the federal attorney general order an investigation to find out who had carried out this detention, initiate administrative investigations against those responsible, and inform the competent prosecutors so they would carry out the corresponding criminal investigation.[134]  The CNDH concluded that the PGR had "totally complied" with the CNDH recommendations after it informed, two months later, that it had "adopted measures" to implement them and that its internal control office had initiated an investigation of the officials.[135] 

In 2002 the CNDH documented that a nurse from the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) placed an intra-uterine contraceptive in Hermelinda del Valle Ojeda, an indigenous woman from Oaxaca, without her consent. Ojeda carried this device in her body unknowingly for two years, causing risks to her health.[136]  The CNDH held the IMSS had violated her sexual and reproductive rights and her right to health. It recommended that the IMSS provide information to its internal control office so it could initiate an administrative investigation and, if the results of that investigation justified it, inform the public prosecutor's office so that it could open a criminal investigation.[137]  The CNDH decided that the IMSS had "totally complied" with its recommendations when it initiated the administrative proceedings.[138]

In 2003 the CNDH documented that Laura Guzman Soria, who was pregnant, died due to medical malpractice in a public hospital in Baja California.  The CNDH concluded that the doctors who treated her violated her rights to life and health, and recommended that the IMSS inform the internal control office that it should initiate and carry out an administrative investigation of the doctors and hospital directors, and provide monetary reparations to the victims' family.[139]  The CNDH determined that the IMSS had "totally complied" with its recommendations when the IMSS sent information on the case to its internal control office to initiate an administrative investigation.[140]  (On the monetary reparations question, the CNDH held it considered its recommendation had been implemented, since the technical council of the IMSS had signed an agreement saying it would pay reparations.) 

In 2000 the CNDH found that municipal police in Veracruz had used excessive force when arresting Jose Leonardo Rosas Hernandez. It recommended that the municipality of Cordoba propose that the Cabildo (local legislature) sign an agreement to initiate an administrative investigation.  It also stated that, independently of the previous recommendation, the municipal government could inform the relevant prosecutors so that they could, in turn, carry out criminal investigations.[141]  The following year, the CNDH stated that the municipality had "totally complied" with its recommendations simply based on the fact that the local legislature had agreed to request its internal control office to carry out an administrative investigation, as well as to inform prosecutors of the case so they could initiate a criminal investigation.[142] 

"Special Reports" and "General Recommendations"

The CNDH regularly issues two other types of reports that also warrant follow-up: "special reports" (informes especiales) and "general recommendations" (recomendaciones generales.)  According to its rules of procedure, the CNDH issues special reports on human rights problems "when the nature of the case requires it, given its importance or seriousness."[143]  General recommendations examine the laws, policies, and practices that lead to human rights violations.[144]   In both cases, CNDH officials maintain they can abandon their work after publishing their findings. 

In the case of special reports, some CNDH officials claim that the institution does not have legal authority to conduct follow-up on its findings and must therefore limit itself to receiving information from government authorities.[145]   Yet the law regulating the CNDH contemplates such follow up.  Its rules of procedure state that "the CNDH shall not be obliged to follow up" on special reports,[146] strongly implying that the CNDH has discretion and may do so when it wishes (if the drafters of the law had wanted to prohibit such follow up, they can and would have stated the prohibition directly, rather than using the discretionary language quoted above).  Moreover, some CNDH officials do consider follow-up appropriate for special reports and have done so in some cases.[147]  The CNDH, for example, actively followed up on its 2003 "special report" on Ciudad Juarez, and its "special report" on Guadalajara (albeit after several years of neglecting to do so). 

In the case of general recommendations, one CNDH official told Human Rights Watch that the CNDH has no legal obligation to conduct follow-up.[148]  Consequently, CNDH officials reason, there is no need to do anything more than receive information on these cases.[149]  Indeed, all the general recommendations that the CNDH has issued to date have ended with a paragraph informing the government authority that it has no obligation to accept the recommendation and requesting that it send evidence of having implemented the recommendation within a 30-day period.  Yet the law governing the CNDH envisions a far more active role, which is not merely to wait for the government to send information.  Instead, the CNDH rules of procedure specifically provide for the "verification of compliance" with general recommendations.[150]

A Peculiar Interpretation of the "Legality Principle"

When pressed on why they did not more actively follow up on their reports and recomendaciones, CNDH officials cited a principle of Mexican administrative law, known as the "legality principle," which holds that public officials can only do what the law expressly authorizes them to do.[151]  These officials maintain that, according to this principle, any advocacy work they might carry out that exceeds the explicit mandate of the CNDH would constitute an abuse of authority and expose them to administrative sanction.[152] 

Yet, as we discussed above, the CNDH mandate allows these officials to perform the very functions they claim exceed the institution's mandate, including monitoring criminal investigations and following up on rejected recomendaciones, "special reports," and "general recommendations."  As also noted above, in some cases CNDH officials have performed these functions, and have done so with positive results.

Moreover, even if the CNDH mandate were in fact limited, as the officials claim, these limitations would be largely self-imposed, since the CNDH is responsible for writing its own internal regulations and has the power to request Congress to modify its legal mandate.[153]  In other words, the CNDH says it cannot do its job because its hands are tied, yet it makes no effort to have them untied. 

The purpose of the legality principle is to protect individuals from arbitrary government acts.  The principle derives from a clause of the Mexican Constitution establishing that "[n]o one can be bothered in [his or her] person, family, home, papers or possessions, except as a consequence of a written decision by a competent authority, which must be based on and justified by the legal cause of the proceedings."[154]  According to Mexican courts, it is intended to apply to "all government acts that are directed at adversely affecting an individual."[155]  Its main practical significance is that it grants individuals the right to know in detail all the circumstances that lead to a government decision, so that he or she has the opportunity to challenge its merits and adequately defend him or herself.[156]  

By invoking this principle to avoid following up on its own recommendations, the CNDH turns the principle on its head, employing it to protect state officials who abuse their authority rather than to protect individuals. 

V - Reform

In addition to pressing the state to remedy specific abuses, the CNDH has the power to promote the reforms that are needed to prevent future ones.  Here too, however, the CNDH has tended to abdicate its authority, too often allowing abusive policies to continue unchecked.  

One of the CNDH's most important functions is to challenge national laws that are inconsistent with international human rights standards.  Yet, on a range of important issues, the CNDH has done just the opposite, tolerating abusive practices by deferring to existing national laws.  In these cases, the CNDH has displayed a fundamental disregard for the very international human rights standards that it is supposed to be promoting.  

The CNDH has also failed to support efforts by other state organs-including the executive and legislative branches-to bring Mexican law into compliance with international human rights standards.  In at least one case involving Mexico City's abortion law, it has actively opposed such efforts. 

As with the CNDH's failure to actively monitor implementation of its recommendations, CNDH officials justify their failure to promote reform with an unnecessarily limited interpretation of what their own role can and should be.  Perhaps the clearest evidence of the speciousness of these arguments is the fact that on several occasions the CNDH has in fact played a far more active and constructive role in promoting reform.   If the CNDH did so more often, it would have a far greater impact on curbing human rights abuses in Mexico than it does now. 

How the CNDH Limits Its Own Mandate

Mexican law grants the CNDH ample authority to promote reforms aimed at improving human rights practices.  It may propose changes to laws, regulations, and governing practices to increase the respect of human rights.[157]  Since November 2000, the CNDH has had the power to issue "general recommendations" that address general practices and legal norms that undermine human rights protections.[158]  And since April 2006, it has had the power to challenge before the Supreme Court the constitutionality of federal or state laws that violate human rights standards established in the Mexican Constitution.[159] 

Yet CNDH officials interpret this mandate in a very limited fashion.  They argue that, since the Mexican Constitution and the law on the CNDH only empower them to address violations of human rights "protected by the Mexican legal system," they cannot advocate for rights that are not explicitly established in Mexican constitutional or statutory law.[160] Yet, one of the most important principles that the CNDH should be championing is that "the Mexican legal system" includes the state's obligations under international law. 

The Mexican Supreme Court, the highest authority on the Mexican legal system, has itself upheld this principle, ruling on two occasions that Mexico is bound by its international obligations and that the provisions of treaties ratified by Mexico take precedence over federal and state statutory law (but not over provisions of the Constitution).[161]  While these rulings do not yet constitute binding jurisprudence for Mexico's lower courts (under Mexican law, the Supreme Court generates binding jurisprudence when it issues five consecutive decisions that reach the same conclusion), they do provide an authoritative interpretation of Mexican law that should be the guiding principle of the CNDH. 

This limited interpretation of its mandate has seriously hindered the CNDH's ability to contribute to human rights progress in Mexico. 

Military Jurisdiction over Human Rights Cases

Some of the most egregious human rights violations documented by the CNDH have been military abuses against civilians.  These abuses are rarely punished, however, in large part because the military justice system routinely exercises jurisdiction over military abuses, and military authorities have proven unable to properly investigate and prosecute human rights cases.  Rather than challenging military jurisdiction over human rights cases, the CNDH has routinely turned military abuse cases over to military prosecutors, virtually ensuring there would be no effective remedy for the victims or their families.

The CNDH president argued as recently as October 2007 that, according to Mexican law, military officers should be tried by civilian courts only when they commit crimes while off duty.  Accordingly, the CNDH has no choice but to request military prosecutors to investigate military abuse cases.[162] 

But it does have a choice.  It could take advantage of a recent Supreme Court ruling that points towards a different interpretation of applicable law.  While the Mexican Constitution establishes military jurisdiction only for "offenses against military discipline,"[163] the Code of Military Justice establishes a very expansive notion of such offenses that includes "offenses under common or federal law…when committed by military personnel on active service or in connection with active service."[164] In 2005 the Mexican Supreme Court limited the scope of the clause by defining "service" as "performing the inherent activities of the position that [he or she] is carrying out." Although at the time the court was not deciding a human rights case, the decision suggests that human rights violations cannot be considered inherent to activities carried out by military officials.[165]  The CNDH could also take into account constitutional interpretations by Mexican legal scholars, who argue that military courts may not exercise jurisdiction over civilian victims, since the Constitution provides for victims' rights.[166]

In any case, even if Mexican law suffered from some ambiguity regarding military jurisdiction, the CNDH could apply international law, which is quite clear.  Mexico has an obligation to provide victims of human rights abuses with effective remedies.  And authoritative international human rights bodies have repeatedly found that military tribunals cannot be relied upon to provide such remedies.  For that reason, they have called on states to transfer jurisdiction over these cases from military to civilian authorities.[167] In the case of Mexico, the U.N. Special Rapporteur on Torture found that Mexican military personnel who committed abuses were "generally protected by military justice" and concluded that "[c]ases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice."[168]

Rather than challenge the misuse of military justice, the CNDH has routinely turned military abuse cases over to military prosecutors, including:

• when soldiers arbitrarily detained and tortured Rodolfo Montiel and Teodoro Cabrera,two peasant leaders involved in environmental activism in the mountains of Guerrero, in 1999;[169] 
• when soldiers stationed in Oaxaca shot and killed Gildardo Avila Rojas as he was running away from them in 2000;[170]
• when soldiers in Guerrero shot and killed Esteban Martinez Navario, a minor, as he was running away from them in 2001;[171]
• when soldiers in Colima attacked a meeting of recovering alcoholics, killing Rodrigo Torres Silva and injuring a minor named Yuliana Mercado Vargas;[172]
• when soldiers opened fire on a vehicle transporting 23 migrants in 2002;[173]
• when soldiers beat and kicked another 13 migrants to extract information on who was transporting them in 2003;[174] and
• when soldiers shot and killed an unarmed civilian, Aquileo Márquez Adame, in Guerrero in 2004.[175] 

More recently, the CNDH has requested military prosecutors to investigate human rights abuses committed by the military while engaged in law enforcement activities.  These cases include:

• when  soldiers in the state of Coahuila beat seven municipal policemen and sexually abused 14 women in July 2006,[176]
• when soldiers arbitrarily detained 65 people in Michoacan state in May 2007, holding some incommunicado at a military base, beating many of the detainees, and raping four children,[177]
• when soldiers in Michoacan arbitrarily detained eight people in May 2007, keeping them incommunicado at a military base, where they beat and covered the heads of four of them with plastic bags,[178] and 
• when soldiers opened fire against a truck in Sinaloa in June 2007, killing five people, including three children, and injuring three others.[179]

The CNDH has even requested that the Military Prosecutor's Office (Procuraduria General de Justicia Militar, PGJM) handle cases even after finding irregularities in the investigations the military had already conducted.   In 2005 the CNDH documented a 2003 shooting at a military checkpoint in Guerrero, in which soldiers injured Rogaciano Miranda Gomez, a minor, and killed Prisciliano Miranda Lopez.  The CNDH concluded that soldiers had shot Miranda in the back and then failed to bring him to a hospital for another 12 hours.  It also determined that a military prosecutor had engaged in irregularities when investigating the case, including failing to assess contradictions in the statements made by military personnel, and then closing the case.  Yet the CNDH then sent the case back to the PGJM with the expectation they would do a better job investigating it the second time around.[180]

The CNDH has also failed to challenge military jurisdiction in cases where its use violated the Mexican Constitution.   According to the Constitution, "military tribunals shall in no case and for no reason exercise jurisdiction over persons who do not belong to the army," and "[w]henever a civilian is implicated in a military crime or violation, the respective civilian authority shall deal with the case."[181] Accordingly, when both military and civilians are suspected of committing a particular crime, the case must go to civilian courts.[182]

Yet military prosecutors and courts have openly ignored this provision of the Constitution, most notably in the "dirty war" cases involving three military officers implicated in enforced disappearances in Guerrero in the 1970s.  The PGJM recognized the participation of civilians in the commission of the crimes, yet it persisted with the prosecutions, and ultimately acquitted the defendants.[183] The CNDH did not adequately question this flagrant misuse of military jurisdiction.[184]

Discrimination against Military Officers Living with HIV

The CNDH has for years failed to challenge the military's flagrant discrimination against people living with HIV, citing Mexican law to legitimate a policy that violates both the Mexican Constitution and international human rights standards. 

The Ministry of Defense (Secretaria de la Defensa Nacional, SEDENA) has routinely fired military personnel who are living with HIV based on their HIV status.   Prior to 2003, SEDENA justified this discriminatory practice by citing the Law on the Social Security Institute for the Mexican Armed Forces (Ley del Instituto de Seguridad Social para las Fuerzas Armadas Mexicanas),even though it did not explicitly include HIV infection as a basis for expulsion from the military.   More recently, SEDENA has referred to legislation passed by the Mexican Congress in 2003 that explicitly authorizes such discrimination.[185]

In September 2001, for example, the CNDH found that SEDENA had not violated the rights of Eliazar L., who had been fired after the military considered him "useless to work" because he lived with HIV.  The CNDH argued that the law allowed the military to dismiss him, "since it was medically certified that [the victim] had become infected while off duty."[186]  Similarly, in January 2002, the CNDH held that SEDENA had not violated the rights of Vicente J., who was fired for the same reason, arguing this time that it did not have jurisdiction to analyze the case because the petitioner had already challenged the decision through the relevant administrative channels.[187]

In August 2005, after finding out that he was HIV positive, Omar P.went to the CNDH to "protect his work" because he knew that others had been fired from the military for living with HIV.[188]  The CNDH told Omar P. that it did not have jurisdiction to analyze his case and referred him to the military ombudsman.[189]  According to Omar P., when he went back to work the commander in charge of his unit asked him, in front of the entire battalion, "You have a deadly disease, why did you go to 'human rights?'"  A few days later, the commander reportedly ordered every person in the battalion to go to the hospital for an HIV test.[190]  And a few months later, Omar P. was discharged from the military "due to inutility."[191] Omar P.'s lawyer told Human Rights Watch that he presented another formal complaint before the CNDH, which the CNDH did not respond to until he won an injunction before the courts ordering the CNDH to analyze the case.  According to his lawyer, when it finally did deal with the case, the CNDH sent Omar P. a conciliation proposal that stated he had consented to conciliation of the case, which he argues is not true.[192]

Omar P. told Human Rights Watch that he went to the CNDH expecting that they would protect him.  But "there was no help from the CNDH," he said.  "On the contrary, if I hadn't gone to the CNDH I would be o.k. (…) and not in the situation that I find myself in [now]."[193]

Not only has the CNDH failed to protect such HIV-positive individuals from discrimination, it has also refused to challenge the legal basis for this abusive practice.  The CNDH president told Human Rights Watch that, since there were cases pending before the courts, the CNDH could not address this issue.  According to the CNDH president, if the CNDH had been given legal standing to challenge the constitutionality of laws prior to 2006, it would have challenged the constitutionality of this law.[194] 

But the CNDH could have openly criticized the Mexican Congress when it voted, in 2003, to explicitly authorize this sort of discrimination.  Moreover, despite a ruling by Mexico's Supreme Court holding that the 2003 law is unconstitutional, the CNDH staff continues to insist that it cannot denounce this discriminatory practice.[195]  In conversations with Human Rights Watch, the director of the CNDH's program on HIV and human rights acknowledged that the law is discriminatory.  Yet he insists that the CNDH cannot challenge the practice since its mandate is to "defend the human rights established in the Mexican legal system" and "the law states that they can dismiss a military official with HIV."[196]

The CNDH official dismissed the relevance of the Supreme Court ruling on the law on the dubious grounds that it did not constitute binding jurisprudence, since Mexican law requires five consecutive Supreme Court rulings to establish binding jurisprudence.  (After our interview, the Supreme Court did issue a fifth ruling and established binding jurisprudence.)[197]  Yet the fact that the ruling was not binding for lower court judges at that time does not mean that it was not an authoritative opinion that should inform the CNDH's evaluation of the law.  There is no compelling reason why the CNDH must wait for the Supreme Court to issue five decisions before it challenges a blatantly discriminatory law, especially when that law contradicts international human rights standards. 

The CNDH official also dismissed the relevance of international human rights standards, arguing that "there is no international treaty that states that a military official cannot be dismissed for having HIV."  This argument reflects a remarkably limited understanding of the applicability of international law.  While there is no specific treaty language on this particular issue, there is a clear prohibition in several treaties against discrimination that is applicable here.[198]   The ICCPR, for example, prohibits discrimination based on HIV/AIDS, according to the U.N. Commission on Human Rights, the main political body within the U.N. system charged with human rights matters.[199]

Access to the Airwaves (The "Televisa Law")

In 2006 the CNDH did not publicly object when the Mexican Congress passed a decree granting major telecommunications companies control of the country's airwaves, thereby undermining efforts to promote freedom of expression in Mexico.[200]  Although problematic provisions of the decree ultimately were struck down by the Supreme Court, the case again illustrates the CNDH's timidity.

The decree-commonly referred to as the "Televisa Law"-modified the Federal Law on Radio and Television (Ley Federal de Radio y Television) and the Federal Law on Telecommunications (Ley Federal de Telecomunicaciones), allowing a few telecommunications companies to keep control of new channels created on the radioelectric spectrum through improvements in digital technology.[201] The new rules established economic criteria to determine access to radioelectric frequencies and made it harder for non-commercial radio stations to obtain such access.[202]  It also created a mechanism by which the Ministry of Communications and Transportation would automatically authorize-on demand and without opening a public bidding process-those who already have a concession over a portion of the radioelectric spectrum for commercial exploitation to use their spectrum to provide other telecommunication services, such as Internet or telephone services. 

Before the decree, ownership of media in Mexico was concentrated in two major private telecommunication companies.  The new measures would have increased their power over the airwaves even further and dealt a new blow to efforts to expand and diversify commercial and non-commercial radio and TV offerings in Mexico.

The decree ran counter to Mexico's obligation to promote freedom of expression by making it virtually impossible for certain social sectors to express themselves through the broadcast media.[203]  According to authoritative international human rights bodies, when states administer the airwaves, they must ensure that there is fair and non-discriminatory access.  In doing so, states must bear in mind that monopolies or oligopolies in the ownership of communication media limit the plurality and diversity that are necessary to ensure the full exercise of people's right to information.[204]  According to the OAS Special Rapporteurship on Freedom of Expression:

Radio stations that style themselves as community, educational, participatory, rural, insurgent, interactive, alternative, and citizen-led are, in many instances and when they act within the law, the ones that fill the gaps left by the mass media; they serve as outlets for expression that generally offer the poor better opportunities for access and participation than they would find in the traditional media… Given the potential importance of these community channels for freedom of expression, the establishment of discriminatory legal frameworks that hinder the allocation of frequencies to community radio stations is unacceptable.[205]

One sector of Mexican society that would have been particularly adversely affected by the decree is the country's indigenous communities, which, as linguistic and cultural minorities, have a special interest in establishing local radio and TV stations in their own language.   Indeed, the Mexican Constitution explicitly requires the state to provide indigenous communities with access to ownership and operation of electronic media.[206] 

The decree was widely repudiated by international, governmental, and nongovernmental actors for its potential impact on freedom of expression in Mexico.  The representative in Mexico of the U.N. High Commissioner for Human Rights stated that the decree placed undue limitations on the right to freedom of expression.[207]  The National Commission for the Development of Indigenous Peoples (Comision Nacional para el Desarrollo de los Pueblos Indigenas) criticized it for failing to guarantee equal access to radio spectrum for indigenous communities.[208]  And the World Association of Community Radio Broadcasters (Asociacion Mundial de Radios Comunitarias, AMARC) stated that the reforms "violate the right to freedom of expression as they practically eliminate the possibility of access to radio and television frequencies for citizen groups and indigenous communities."[209]

A legislative minority challenged the constitutionality of this decree before the Supreme Court.[210]  In June 2007, the Supreme Court struck down crucial provisions of the law, arguing, among other things, that the law violated freedom of expression and the right of access to information, limited the social function of the radioelectric spectrum, and favored the creation of monopolies.[211]

By remaining silent on this controversial legislation, the CNDH missed an important opportunity to advance the protection of freedom of expression in Mexico.

Reproductive Rights in Mexico City

A principal function of the CNDH is to ensure that Mexican laws and policies are consistent with human rights standards.  Yet, CNDH did just the opposite in 2007 when it challenged the constitutionality of a law passed by the Mexico City legislature legalizing abortion for all women in the first 12 weeks of pregnancy.

In May 2007 the CNDH requested the Supreme Court to declare that the Mexico City law was unconstitutional.[212]  The CNDH argued, among other things, that the Mexican Constitution protects the right to life of the unborn from the moment of conception, and that such a right is supported by international human rights treaties that protect the right to life.[213] 

Most international human rights instruments are in fact silent concerning the starting point for the right to life.[214]  Yet the negotiating history of many treaties and declarations, international and regional jurisprudence, and most legal analysis suggest that the right to life as spelled out in international human rights instruments is not intended to apply before the birth of a human being.[215]

The American Convention on Human Rights (ACHR) is the only international human rights instrument that contemplates the application of the right to life from the moment of conception, though not in an unqualified manner.[216] In 1981, the Inter-American Commission on Human Rights established that the right-to-life provisions in this Convention and in the American Declaration on the Rights and Duties of Man are compatible with a woman's right to access safe and legal abortions.[217] Moreover, when Mexico ratified the ACHR, it added an "interpretative declaration" that said that the wording of the article on the right to life "does not constitute an obligation to adopt, or keep in force, legislation to protect life 'from the moment of conception,' since this matter falls within the domain reserved to the States."[218]

The CNDH recognizes that the right to life of the unborn (which it purports exists in international law) is not absolute and must be balanced with the right to life of the pregnant woman.[219]  Yet there are other fundamental rights at stake that the CNDH ignores.  Authoritative interpretations of international law recognize that abortion is vitally important to women's exercise of their human rights, which are not limited to their right to life.  They include, among others, the rights to health and health care, the right to non discrimination, and the right to decide the number and spacing of children.[220]  These rights are also provided for in the Mexican Constitution.[221] 

Unsafe abortions are a grave threat to women's health.[222]  Where there is a lack of legal and safe abortion services and pervasive barriers to contraceptives and other reproductive health services, there will be unwanted pregnancies and unsafe abortions.Between 10 and 50 percent of women worldwide who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs.[223]According to information from six Latin American countries, five to 10 of every 1,000 women are hospitalized annually for treatment of complications from an induced abortion.[224] These may result in permanent injury, infertility, or death.

Access to safe and legal abortion services is also essential to the protection of women's rights to nondiscrimination and substantive equality.[225] In practice, women are more likely than men to experience personal hardship as well as social disadvantage as a result of economic, career, and other life changes when they have children. Where women are compelled to continue having unwanted pregnancies, barriers to safe and legal abortion services forcibly put women at a further disadvantage.

Moreover, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which interprets the Convention on the Elimination of All Forms of Discrimination Against Women, has held that restrictive abortion laws are contrary to the right to nondiscrimination in access to health care.[226]  The CEDAW Committee has stressed states' obligation to respect women's access to reproductive health services and to "refrain from obstructing action taken by women in pursuit of their health goals."[227] According to the Committee, "barriers to women's access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures."[228]  It therefore recommends that "[w]hen possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion."[229]In the case of Mexico, the CEDAW Committee recommended in 1998 "that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion."[230]

The right of women to decide on the number and spacing of their children without discrimination can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state.[231]  For this right to be fulfilled, women must also have access to all safe and effective means of controlling their family size, including abortion, as part of a full range of reproductive health care services.[232]

The CNDH's challenge to the Mexico City abortion law relied on a highly selective interpretation of relevant international law.  Worse, it demonstrated a disturbing disregard for the internationally-protected human rights of women in Mexico City. 

Torture

The CNDH issued a comprehensive general recommendation on torture in 2005 that documented what a serious and widespread problem it is throughout Mexico.[233]  However, despite the fact that Mexico is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)[234] and is obliged to take measures to eliminate and prevent torture, the CNDH did not provide concrete proposals to end the practice or advocate on behalf of existing initiatives to address it at the federal and state level.

The CNDH's general recommendation on torture made proposals to dozens of government officials at the state and federal levels, but the proposals were broad and unspecific.[235]  For example, it recommended that they "define a strategy" to prevent torture,[236]  but did not propose concrete changes or measures to deal with the factors that perpetuate the use of torture throughout Mexico. 

A principal reason torture continues in Mexico is that law enforcement agents find they can use it to extract "confessions," which can then be used to prosecute criminal suspects.[237] Indeed, according to a 2004 study by the CNDH, in over 90 percent of the cases documented by the federal and state human rights commissions, torture had been used to force a "confession" from the victim.[238] As a party to the Convention Against Torture Mexico is obliged to ensure that any statement made as a result of torture cannot be used as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.[239] An obvious legal reform that would further this goal would be legislation making it impossible, in practice, to use confessions obtained through torture in trial. The CNDH's general recommendation did not suggest such a reform.

In contrast to the CNDH, some policymakers have recognized the importance of such reform.  The Fox administration included concrete measures to address it in the comprehensive justice reform package it sent to Congress in 2004 (which was never approved).[240]  In 2006 the National Network in Favor of Oral Trials-composed of individuals and civil society organizations advocating for an oral and adversarial judicial system in Mexico-drafted a comprehensive constitutional reform proposal that also addressed this problem, which was endorsed by a congresswoman and presented before Congress.[241] The state of Chihuahua also included such measures as part of systemic reforms aimed at creating an oral and adversarial justice system, which was passed at the state level in 2006.[242]

The CNDH could have played an important role in securing the passage of these reforms.  However, it failed to be a forceful advocate for the Fox proposal, which languished for several years in Congress and eventually died.  It did not support the proposal by the National Network in Favor of Oral Trials.[243] And, while the CNDH did provide some minimal assistance to the Chihuahua government, it did so only after the state prosecutor actively solicited it.[244] 

Juvenile Detention Centers

After documenting the mistreatment and abuse of children in juvenile detention centers throughout Mexico, the CNDH failed to make concrete proposals that would have enabled government authorities to address the problem seriously.

In 2003 the CNDH documented a wide range of human rights abuses of detained children, including violations of the right to receive dignified treatment, the right to development, the right to health, and the right to non-discrimination.[245]  According to the CNDH, in a juvenile detention center in Tijuana, children were woken up at 4:00 a.m. every day to cook 3,300 pounds of tortillas for adult inmates at a nearby prison.[246]  In a detention center in Veracruz, children had not been separated by age or severity of crime and two seven-year-old boys were found living with 18-year-old adolescents.  In a center in Sonora the children were forced to sleep on cement slabs because there were no mattresses.[247]  In Chiapas, the staff reported that the detention center often experienced water shortages.[248]  In Nuevo Leon, the facility was severely understaffed with only one social worker for 188 children.[249] 

The report outlines a list of principles on the rights of juvenile detainees but it fails to provide any recommendations on the steps that should be taken-nor who should take them-to implement these principles.  Instead, it simply lists general principles on the treatment of juvenile detainees, which include that children should be given proper medical and psychological treatment, imprisonment should always be the last option for juveniles, and all inmates should be treated equally without discrimination.[250] 

Since the report's publication in 2003, the mistreatment of children in prisons has continued.  The United Nations Committee on the Rights of the Child recently expressed concern about the continuing mistreatment of juveniles in detention centers in Mexico.  In 2006, in its analysis of Mexico's adherence to the Convention on the Rights of the Child, the committee stated that it was "concerned at the very poor living conditions of juveniles detained in police stations and other institutions."[251]  More specifically, the committee noted that many juvenile detainees do not have access to educational programs.[252]  The report also expressed concern over the fact that corporal punishment is not explicitly prohibited in penal institutions.[253]

Recent cases also reveal that the abuse and mistreatment of children continues to be a serious problem within the Mexican prison system.  On March 23, 2005, Jose Luis Blanco Ramirez, who was imprisoned in a federal juvenile detention facility, was assaulted by another prisoner.  He died from severe respiratory infections and encephalitis after two doctors failed to correctly diagnose and treat his illness.[254]  Another example involves the case of 15-year-old Felipe Garcia Mejia, who was arrested in January 2004 in Mexico City. Garcia Mejia was charged with allegedly stealing a woman's bag on the street and was incarcerated with adult inmates.[255] While in detention awaiting trial, he was harshly beaten by another inmate.  Due to his injuries, he died a few days after his arrest.[256]

When the CNDH Pushes for Change

Perhaps the clearest evidence that the CNDH can play a more active role in promoting human rights reform in Mexico are cases in which it has in fact chosen to do so.  In several cases, the CNDH has succeeded in promoting serious debate and spearheading important changes in the Mexican legal system. 

In 1994, for example, the CNDH carried out a study of the state's responsibility to provide monetary compensations after it violates human rights, which led to a presidential reform proposal that was passed by the federal Congress.[257]  In 1998 the commission produced a comparative study of Mexican and international laws related to women's and children's rights that served as the basis for substantial reforms passed by the state of Oaxaca and Mexico City.[258] 

More recently, the CNDH contributed to promoting freedom of the press in Mexico.  To protect journalists and communicators from having to reveal their sources, the CNDH sent a proposal to the Senate Human Rights Commission on how to redraft the Federal Criminal Procedures Code (Codigo Federal de Procedimientos Penales).[259]  The CNDH then issued a general recommendation explaining why the existing norms violated the right to freedom of expression.[260]  Congress passed the reform in 2006.[261]   The CNDH has also actively campaigned in support of legislation decriminalizing defamation, which was adopted by the Mexican Congress in March, and signed by President Calderon in April 2007.[262] 

The CNDH has also actively promoted reforms to strengthen the protection of immigrants in Mexico.  In 2005 it published a "special report" and in 2006 it issued a "general recommendation" that documented abuses committed against illegally detained migrants.[263]  It subsequently sent letters to the Mexican Congress calling for the elimination of article 123 of the General Law on Population (Ley General de Poblacion), which makes it a crime to enter Mexico illegally.  The CNDH argued that, by criminalizing immigration, this article increased the vulnerability of foreign migrants, making it easier for military and law enforcement personnel to "commit all types of abuses against undocumented migrants, who are mistreated, beaten, robbed, and even victims of sexual abuse."[264]  As of this writing, the proposed reform is still being debated.

The CNDH has also opposed the death penalty, which was abolished in Mexico in 2005 when Congress removed all references to it in the Constitution.[265]  The CNDH has consistently held this view in various press releases, and in its annual reports since 2000.[266] CNDH officials told Human Rights Watch that they also actively supported legislative initiatives aimed at eliminating the death penalty from the Mexican system.[267] 

VI - Publicity

Public disclosure and dissemination of the information the CNDH collects on human rights cases is one of the institution's most important functions. To date, it has not played this role consistently or effectively.

Public disclosure of information on human rights cases is important for several reasons. First and foremost, negative publicity is the most effective tool the CNDH has for deterring future abuses and pressing authorities to reform problematic laws and policies.  Since the CNDH cannot directly take punative action against authorities for violating human rights, the best it can do is to "name and shame" them into remedying past abuses and preventing future ones. 

Public disclosure is also crucial for promoting public awareness of the country's human rights problems and the role that state actors play in perpetuating or curbing them.  Publicizing information on human rights abuses allows the general public to better monitor and evaluate the practices of their elected officials.  It helps policy analysts, commentators, and ordinary voters assess public policies from a human rights standpoint. Finally, public access to the CNDH's information allows political leaders and the broader public to monitor the work of the CNDH itself. 

While the CNDH does publish important information on some specific abuse cases and related policy issues, it does not do so for the vast majority of cases it handles. 

A main reason for this failure is the CNDH's heavy reliance on "conciliation agreements" to resolve the abuse cases it documents.  The CNDH uses these agreements to secure a commitment from state authorities to remedy abuses it has documented.  In exchange for this commitment, the CNDH agrees not to publicly disclose its findings.   While this "friendly settlement" mechanism undoubtedly can be useful for obtaining remedies for abuse victims, it does so at a significant cost.  By not publicizing these cases, the CNDH fails to inform the public about human rights problems and limits whatever deterrence value its findings might provide. 

The conciliation process therefore must be handled carefully to ensure that the advantages outweigh the disadvantages.  The CNDH has used conciliation agreements effectively to obtain results in some cases.   But it inexplicably chooses to withhold far more information than is actually needed to secure these agreements.  And, given that the CNDH does not actively report on compliance with the agreements, it is unclear how much is actually gained by entering into these pacts of silence. 

The CNDH's failure to publicize is not limited to conciliation agreements.  It also uses overly broad confidentiality norms, approved by its own advisory council, to deny abuse victims and the general public access to crucial information it holds on human rights abuses.    

Concealing Information on Abuses through "Conciliation"

Before issuing a public recomendacion on an abuse it has documented, the CNDH usually provides government authorities with the option of "conciliating" the case.  In the conciliation agreement, the authority or institution accepts responsibility for the documented violation and agrees to implement remedies proposed by the CNDH.[268]  In return, the CNDH does not issue a public recomendacion and does not publicize the case.   

The CNDH resolves the vast majority of cases in which it documents abuses in this way.  Of the 1,277 cases the institution documented between 2000 and 2006, the CNDH resolved 1,121 through conciliation agreements, issuing only 156 public recomendaciones.[269]  (In January and February 2007 it issued two recomendaciones and signed 31 conciliation agreements.)[270] 

The CNDH disemminates very little information on the conciliation agreements.  Since 2000, its annual reports have indicated the number of conciliation agreements obtained and with which government institutions they have been signed.[271]  But the CNDH does not disclose the actual content of the agreements themselves.  Consequently, the public rarely learns anything about the abuses the CNDH has documented or the remedies that offending institutions have agreed to pursue. 

The CNDH does provide the victims with a copy of the agreement, which includes a summary of its findings on the case and the remedies agreed upon.  The victims are free to disclose this information to the public.[272]  However, unlike the CNDH, they very often do not have the resources or wherewithal to publicize this information.  In theory, victims could turn this information over to the media or nongovernmental organizations to publicize their cases, but in practice this is not a viable option for the majority of victims, who have no contact with either. 

Uncertain Benefits of Non-Disclosure

Conciliation agreements can be a useful tool for obtaining remedies for victims.  Some government authorities may be willing to sign agreements, committing themselves to remedying abuses, as a way of avoiding the public shaming that published recomendaciones can entail. 

The CNDH has used this tool effectively in diverse cases.  For example, in one case the CNDH used the conciliation process to help an inmate in a high-security federal prison obtain a type of surgical operation that is usually not available in those prisons.[273]  In another case, the CNDH obtained a conciliation agreement with the Ministry of Defense on behalf of an officer facing criminal prosecution for alleged "desertion."[274]  The military agreed to reevaluate the case and, upon doing so, concluded that there were no grounds for prosecution.[275] 

But the effectiveness of conciliation agreements depends entirely on the degree of compliance by the state authorities that sign them.  As with published recomendaciones, the CNDH can only ensure compliance by conducting follow-up on the cases.[276]  And as with recomendaciones, the CNDH does not always do so.[277] 

For example, the CNDH closed the case of Carlos T., an undocumented immigrant who was harshly beaten by an immigration official, before the National Institute of Migration (Instituto Nacional de Migracion, INM) had complied with the terms of the conciliation agreement.  After signing an agreement that requested the INM to provide, among other things, reparations to the victim, the CNDH deemed the INM to have complied with the agreement when the INM said it would pay the victim.[278]  According to the victim's legal representative, however, the INM never complied with this part of the conciliation agreement.[279]  This left the victim with no reparations, and the public with no information on the case or the institution that had violated his rights.

Something similar occured when the CNDH reached an agreement in May 2006 with the Mexican Commission for Aid to Refugees (Comision Mexicana de Ayuda a Refugiados, COMAR) in the case of seven foreignerswho had requested refuge in Mexico.  The conciliation proposal stated that COMAR had to adopt new internal rules, as well as measures to prevent human rights violations of those applying for refugee status in Mexico.[280]   The petitioners' legal representative told Human Rights Watch that they had repeatedly requested information on what the CNDH had done to follow-up after the agreement was signed-both by phone and through letters-and did not receive a response for approximately one year.[281] When it did respond, the CNDH considered COMAR had complied with the terms of the agreement after it informed the CNDH that it had requested its staff to carry out the measures proposed in the agreement.[282]  Yet according to the petitioners' legal representative, COMAR had not implemented the terms of the agreement.[283]

Without information regarding the degree of compliance with remedies, it is impossible to gauge the overall effectiveness of conciliation agreements.

An Unnecessary Price for Conciliation

Even if there are benefits to the heavy reliance on conciliation agreements, the CNDH concedes far more than it needs to-in terms of non-disclosure of information-in order to obtain them.  

The CNDH could easily limit the disclosure of key details-such as the identity of specific officials, units, or offices implicated-in order to obtain agreements, while still publicizing general information about the conciliated cases.  It could, for example, publish information on the cases in its annual reports, grouping them by types of violation committed by each state institution, with a basic account of the facts of the case and the types of reparations agreed upon.  It could also publicly disclose government authorities' degree of compliance with the terms of conciliation agreements. 

There is no good reason for the CNDH not to disclose more information on these cases to the general public.   The CNDH president told Human Rights Watch that conciliation agreements are not publicized because the law does not establish that they should be.[284]  But the law does not stipulate that these agreements should not be made public.  And the "principle of maximum disclosure," included in the federal transparency law to which the CNDH is subject, states that government entities are always presumed to be under an obligation to disclose information.[285] 

Conciliating Serious Human Rights Abuses

The price paid for obtaining conciliation agreements is all the more problematic when it comes to more egregious abuses.  According to its own rules, the CNDH is never supposed to use conciliation agreements to resolve cases involving "serious" violations.[286]  But in fact it does, thereby ensuring that its findings in these cases are also kept from the public.  (Human Rights Watch was able to obtain copies of some conciliation agreements through nongovernmental organizations that represent victims of abuses and from individuals who requested information from government offices that conciliated cases.[287])

Prior to 2003, this prohibition extended to all cases involving "violations of the right to life, physical or psychological integrity, or others that are considered especially serious due to the number of victims or its possible consequences."[288]  Yet the CNDH nonetheless conciliated cases involving such violations.  For example, it reached agreements with the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) in cases of medical malpractice that led to the death of a patient.  In two cases documented by Human Rights Watch, the CNDH's conciliation proposal was limited to asking the IMSS to initiate an administrative investigation of the allegedly responsible doctors, and to provide the petitioners with monetary reparations.[289] 

In another case, the CNDH proposed a conciliation agreement even after its own staff directly saw that Juda Enrique Contreras, a migrant from Central America, had injuries to his back and head.[290]  Contreras filed a complaint with the CNDH, claiming that municipal police had beat him "excessively, causing injuries in [his] back, head and left leg," and that INM officials had threatened to beat him again after he said he filed a complaint before "human rights."  After sending a telegram to Contreras informing him that his case would be subject to the conciliation process, in September 2003 the CNDH sent the INM a conciliation agreement.[291] 

In the case of Carlos T., the CNDH actually included on the first page of a conciliation agreement a transcription of language from its internal rules barring the use of conciliation agreements for cases involving "violations to the right to life or physical integrity."  The agreement then proceeded to detail how government officials had used excessive force against the petitioner, violating his right to physical integrity.[292]  The CNDH documented that an immigration official harshly beat Carlos T. until he fell to the floor, causing bruises, the loss of one tooth, and head injuries that required stitches.  Carlos T. did not receive medical assistance until the following day, after he vomited blood.[293] 

Even after it adopted a more limited definition of "serious" violation in 2003, the CNDH continued to conciliate such cases.[294]  In December 2003, for example, it proposed that the IMSS conciliate a case of medical malpractice that resulted in the death of a patient.  In this case, the proposal did not even mention the IMSS's obligation to provide the victim with monetary reparations.[295]

Applying Broad Confidentiality Norms

The problem of non-disclosure is not limited to cases resolved through conciliation agreements.  Rather, as a result of the CNDH's overly broad application of confidentiality norms, it extends to other areas of the CNDH's work.[296]

The CNDH considers all cases it has under review to be strictly confidential.  According to CNDH rules, the investigations it carries out, as well as information and documentation in pending case files, are privileged.  The CNDH, therefore, is not required to provide such information to third parties.  And it only provides victims with information about their cases when those cases are already closed and the content of the files is no longer considered confidential.[297] 

There is an obvious need to protect the confidentiality of petitioners and victims in cases in which release of information could jeopardize their lives, physical integrity, or well-being.  The presumption that derives from the "principle of maximum disclosure" can certainly be overridden if the release of information could undermine the rights of others.  But, in these cases, the CNDH could produce public versions of documents, blacking out personal data and other privileged and confidential information that could identify the petitioners and thus endanger their lives or physical integrity.[298] 

Similarly, while it makes sense to limit public access to sensitive information regarding ongoing investigations, the CNDH goes so far as to deny all access to files for pending cases even to the victims themselves. For example, in a case involving the forced sterilization of 14 members of a Mepa indigenous community in Guerrero, the CNDH argued that "information in files under study by the CNDH is privileged information" and denied these men and their legal representative access to their own files.[299]   

The same occurred in 2006 to Omar P., a military official dismissed from the military because he was living with HIV, who requested access to an internal investigation relating to the behavior of CNDH officials who handled his case.  Omar P. had asked that the CNDH carry out an internal investigation to evaluate if CNDH staff had failed to seriously address his case.[300]  The CNDH did not provide him any access to this file.[301]

Another problem with the CNDH rules is that they limit disclosure of information on investigations of serious human rights cases.  The Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental, "transparency law") would seem to require that information found in investigations of serious human rights abuses may not be deemed privileged.[302]  However, under its rules, the CNDH may limit access to information on these cases until it concludes its investigation.  The CNDH's implementing rules on the transparency law merely state that in these cases "the information will be public once the respective recomendacion or report is issued."[303]  This approach is particularly problematic given that, as we saw above, the CNDH has used conciliation agreements to close cases involving serious abuses, without ever issuing a public report. 

Obtaining information on concluded cases can also be difficult. The CNDH's implementing regulations on the transparency law allow its staff to withhold information on concluded cases for 12 years.[304]  Complete information is available on cases that end with a recomendacion or a report.   But such cases are the exception, not the rule:  between 2003 and 2006, for example, recomendaciones constituted less than 1 percent of all concluded cases.[305]

In 2003, when the Atalaya Program of the Technological Autonomous Institute of Mexico (Instituto Tecnologico Autonomo de Mexico, ITAM) requested access to the files of all cases that the CNDH concluded in January 2003, the CNDH denied it, arguing that the law governing the CNDH and CNDH implementing regulations on the transparency law allowed it to consider such information privileged.[306] The Atalaya Program then presented an injunction, challenging the applicable regulations. A few weeks before the Supreme Court was going to decide the appeal, and two years after the initial request, the CNDH allowed the Atalaya Program to see the files that were mentioned in the injunction. In February 2006 the Supreme Court decided the case was moot, and did not address whether the challenged laws were constitutional.[307]  But when the Atalaya Program actually went to the CNDH to obtain copies of the requested information, the CNDH denied access to it, arguing that a 30-day deadline had expired (a deadline that, according to the Atalaya Program staff, neither they nor the Supreme Court had been made aware of.)[308]  As of this writing, the case is pending before the Inter-American Commission on Human Rights.[309]

The Federal Institute for Access to Official Information (Instituto Federal de Acceso a la Informacion Publica, IFAI)-the mechanism created to interpret the transparency law and promote and regulate access to information within the executive branch-has held that entities subject to the law must provide access to information held in their files after they reach a final decision in a case.  The transparency law explicitly says that judicial files or administrative procedures will be considered privileged information "as long as they have not concluded."[310]  The IFAI has argued that once a resolution is public, individuals should have access to the entire file because the administrative investigation that led to the resolution has already concluded.[311]

Other federal entities have sought to use the CNDH's restrictive rules, which, unlike the transparency law, allow the CNDH to limit access to information regarding concluded cases that do not end in public recomendaciones or reports.

In two cases in which this happened, the IFAI granted access to the requested information, thereby allowing petitioners to obtain information on cases decided by the CNDH through a back door.[312] In the first case, the Atalaya Program asked the Ministry of Agrarian Reform (Secretaria de la Reforma Agraria, SRA) for copies of the cases against them, which had been analyzed by the CNDH and had concluded between July 2005 and June 2006.  The SRA responded that since the CNDH's rules of procedure and its implementing rules on the transparency law considered that information privileged, the petitioner should request that information from the commission.  After the Atalaya Program staff made a similar request to the INM, the INM argued that it could not provide access to the information since the law on the CNDH stated that government offices had to communicate to the CNDH when an individual was requesting information that it considered privileged.

The IFAI has also granted access to other CNDH files possesed by government agencies.  After the Atalaya Program asked the Ministry of Public Security (Secretaria de Seguridad Publica, SSP) for copies of cases concluded by the CNDH between June 2005 and July 2006 regarding abuses committed in one federal detention center, the SSP responded that the information was confidential because it could "compromise public security, or even national security."  In February 2007, the IFAI ruled that the SSP should provide the requested information, arguing it would enable citizens to analyze the government's performance on human rights.[313] 

VII - Collaboration

For Mexico to make real progress in strengthening human rights protections, it is critical to promote active collaboration among the diverse array of actors who can contribute to the process.  In addition to the CNDH, these actors include local NGOs, state human rights commissions, and international organizations, as well as victims of abuse themselves.  Rather than promoting collaboration with all these actors, the CNDH too often has resisted it, thereby helping to generate a corrosive atmosphere of distrust and antagonism that is counterproductive for human rights advocacy in Mexico. 

Perhaps the most problematic practice in this regard has been the commission's failure to engage with some victims that turn to it for help.  This failure is particularly evident when the CNDH resolves petitions through conciliation agreements, as it does in almost 90 percent of the cases in which it documents abuses.  As the last chapter made clear, the CNDH routinely signs these agreements directly with government authorities, committing itself to a pact of silence.  It does so without consulting with or seeking the consent of the petitioners.  In other words, abuse victims often have no say in their so-called "conciliation."

The CNDH has also failed to engage constructively with other key human rights advocates in Mexico, actively opposing important collaborative projects aimed at strengthening human rights protections.

Human Rights Victims

Under international human rights law, victims of human rights violations have a right to participate in the proceedings designed to remedy those violations.  Yet the CNDH has a policy of not involving human rights victims in the conciliation of their own cases. 

While the CNDH's old rules of procedure required that the victim be "heard" and "informed of the progress of the conciliation process until it concludes," since 2003 the CNDH rules only require that the CNDH inform the victim of the existence of a conciliation proposal and then "try to keep the victim informed of how the procedure advances until its final conclusion" [italics added].[314]  CNDH officials insist that, under these new rules, they have no obligation to consult with petitioners prior to signing conciliation agreements or to seek their consent before signing them.[315] 

In 2003, for example, the CNDH conciliated the case of Jaime Alves de Paula, who had filed a complaint with the CNDH claiming that immigration officials in the Cancun airport had psychologically abused him, denied him access to a lawyer and translator, and coerced him into signing a document that was later used against him.  The CNDH concluded that the National Institute of Migration (Instituto Nacional de Migracion, INM) had violated Alves' due process rights and sent the INM a conciliation proposal on September 26, 2003. The agreement stipulated that the INM would initiate an administrative investigation and order all its employees to inform foreigners about their right to consular assistance.[316]  On that same date, the CNDH sent a copy of the proposal to Alves.   The CNDH received notice from the INM that it was accepting the proposal on October 7, 2003, and only informed the petitioner two weeks later that his case had concluded through conciliation.[317]

The CNDH also sought a conciliation agreement with the INM in the case of Ines O., a woman who alleged an immigration official had told her he would allow her to go if she had sexual intercourse with him.  Before sending the conciliation agreement proposal to the INM on November 25, 2003, the CNDH informed Ines O. via telegram that her case would be subject to conciliation.  The proposal stipulated that the INM would initiate an administrative investigation and instruct "whomever is concerned" that at least two INM officials should be present when transporting detained individuals.[318]

An example of the CNDH not including the petitioners' specific claims in the agreement involves the case of two Chilean tourists who were arbitrarily deported from Mexico in December 2005.[319]  The CNDH proposed that the INM reimburse the deported tourists their travel expenses, send the case to an administrative review, and issue and apply clear and objective criteria to accept or reject a tourist's entrance to Mexico.  On November 10, 2006, the CNDH sent the conciliation agreement to Sin Fronteras, the NGO representing the two deported Chileans, as well as to the INM, giving the latter 15 days to respond.[320]  Two days later, Sin Fronteras requested that the CNDH include in the conciliation agreement that the government authority must recognize that it had also violated other rights, such as the right to have access to consular assistance.[321]  These considerations were never included in the text, and on November 30, 2006, the CNDH informed Sin Fronteras that the case had concluded through conciliation.[322]

The CNDH has even insisted on signing conciliation agreements after petitioners explicitly say they do not want to conciliate because the problem is recurrent in Mexico, and they want the CNDH to address the broader issue.[323]  Abel M. contacted the CNDH on March 30, 2006, arguing that as a consequence of lack of medicines in public hospitals,[324] he had to interrupt his HIV treatment,making it more likely he would  become resistant to the life-saving medication. The CNDH closed the case on April 28, 2006, after the hospital told Abel M. that the specific drug he needed was then available for him.[325]  In August 2006, a community-based organization submitted 41 new cases to the CNDH-including one from Abel M.-showing that the same hospital was not providing 10 types of medicines.[326]  The petitioners' representative told Human Rights Watch that he informed the CNDH that the petitioners did not want to sign a conciliation agreement, but a CNDH official told him "I'm not asking for your opinion; I'm calling to let you know how it will be."[327]  Even though the hospital continued to limit the provision of medicines, the CNDH waited over a year to issue a public recomendacion on the case.[328] 

A Policy of Exclusion

The policy of excluding victims from the conciliation process reflects the CNDH's current position that that conciliations are "an act of authority" carried out by the CNDH.  The CNDH president told Human Rights Watch that victims are informed of the agreements and usually agree with them but, should they disagree, they can always use the courts.[329]  According to press accounts, his view is that the institution should serve as a "mediator."[330]

This view represents a departure from past CNDH policy.  One former CNDH president told Human Rights Watch that the ombudsman's role "is not that of a mediator because violations [in Mexico] are so extraordinarily serious that the first function of an ombudsman is to protect human rights."[331] Another insisted that the CNDH was intended to represent the victim, not mediate with the victimizer.[332]  A third similarly said that the ombudsman's principal role was to protect the interests of the victim.[333]

Indeed, in one of its first publications, the CNDH stated that conciliation agreements could only be used to close cases when, "in an absolutely voluntary fashion, the petitioner and the government authority express their will to resolve the problem through the proposed manner."[334]   The CNDH's old rules of procedure required that the victim be "heard" and "informed of the progress of the conciliation process until it concludes."[335] 

The CNDH's current policy may be consistent with its modified rules, but it directly contradicts the international principle that victims of abuse should participate in the proceedings designed to remedy the violations they have suffered.  As we saw in chapter III, this principle is applicable to non-judicial proceedings, such as those carried out by the CNDH.  It is also reflected in the practices of other international and national human rights mechanisms.  For example, the Inter American Court of Human Rights, the European Court of Human Rights, and the International Criminal Court allow victims to participate in their proceedings.[336]  Similarly the national human rights commissions of Canada, Costa Rica, and South Africa all guarantee that petitioners have an opportunity to participate in the proceedings for resolving their cases.[337]   

Even if the current rules do not mandate consultation with the victims, neither do they preclude it.  Indeed, in one of the five main investigative units, consultation with victims is considered part of the conciliation process.[338]  Officials in the Second Investigative Unit told Human Rights Watch that in the cases they handle, the petitioner has access to the conciliation agreement prior to its signature because "it is the petitioner who has to be satisfied," and that as long as his or her position is legally viable, the petitioner has the last word.  Unlike officials in other units, these officials said that, when pursuing a conciliation agreement, they consider themselves acting as "representatives of the victims."[339]

Other Human Rights Bodies

UNHCHR

An important function of the CNDH, as mandated by its rules of procedure, is to promote cooperation on human rights with international organizations.[340]  Yet, the CNDH refused to participate in one of the most important and ambitious collaborative efforts of the past decade, the elaboration of a comprehensive prognosis of Mexico's human rights problems in conjunction with the Fox administration, members of civil society, and the United Nations' High Commissioner for Human Rights (UNHCHR).[341]  

CNDH officials justified the refusal to join this collaborative effort on the grounds that the government had "excluded the CNDH" when it negotiated the project with the UNHCHR in 2002, and again when the government and UNHCHR selected experts to perform the diagnosis.[342]  As a result, according to the CNDH president, the collaboration "had a problem of democratic legitimacy."[343]  According to two of the four principal experts, however, the CNDH was involved in their appointment, and delayed it for approximately two months, decreasing the amount of time they had to prepare the report.[344]

The Executive's Human Rights Office

The CNDH also decided not to participate in the National Human Rights Program (Programa Nacional de Derechos Humanos, PNDH) that derived from the national diagnosis carried out by the UNHCHR.[345] 

The CNDH participated in the meetings that led to the creation of the PNDH, but it did not do so actively.[346]  Later on, the CNDH openly opposed the PNDH.  The CNDH president told Human Rights Watch that the PNDH "had no legal basis because [in Mexico] there is a law that establishes how national plans must be carried out, and it was not followed in this case."[347]  Another CNDH official explained that the CNDH eventually decided not to participate in the PNDH because this program was not included in the National Development Plan (Plan Nacional de Desarrollo), which each administration must present at the beginning of its six-year term (the PNDH was announced one-and-a-half years before the end of the Fox administration's time in office).[348]

The CNDH's justification implies that if an administration does not decide, within six months of entering office, that it will carry out a specific program, the proposal must wait five-and-a-half years, until the next president takes office.  This is an insupportable postion. While the Mexican Constitution and the Federal Planning Law establish parameters for each administration to present its government plan within six months of taking office,[349] this obviously does not mean that the government cannot present new proposals or implement new public policies after those initial six months.  

State Commissions

The CNDH collaborates with some state commissions to assist them, for example, in building their own websites and creating computerized systems to enter information about their cases.  The CNDH has also carried out joint capacity building activities with some state commissions.[350] 

However, in 2003, the commission opposed an international cooperation agreement aimed at strengthening the ombudsman system in Mexico.  The Mexican Federation of Ombudsmen (Federacion Mexicana de Organismos Publicos de Derechos Humanos), an organization that includes the CNDH and all 32 state commissions in the country, negotiated an agreement whereby the European Union (EU) would provide € 640,000 and the MacArthur Foundation would provide US$ 260,000 for strengthening the national system of human rights commissions.  The federation's president signed the cooperation agreement with the EU in April 2003, after 16 state commissions and the CNDH approved its signature.[351]  The following month, members of the federation agreed to organize an extraordinary meeting to begin planning specific activities related to the project, and to approve signing a cooperation agreement with the MacArthur Foundation.[352] 

But then in July 2003, the CNDH and 18 state commissions decided to cancel the agreement.[353]   The rationale they provided for rescinding the contract was that they had not known the "content and scope" of the agreement at the time the federation's president signed it, and they believed it contradicted the law and regulations governing the CNDH, state commissions, and the federation.[354]  But 11 of them had already authorized the president to sign the agreement in a previous meeting of the federation, nine had attended the official ceremony to sign the agreement in May 2003, and Human Rights Watch obtained documentation showing that the CNDH participated in email discussions and meetings about the project prior to its signature.[355] 

The CNDH president told Human Rights Watch that in supporting withdrawal from the  cooperation agreement, the commission was following the lead of a majority of state commissions.[356]  There is some evidence, however, that the CNDH played a more active role, providing elements for the discussion that led to the rejection of the agreement.  During the extraordinary meeting in which the project was supposed to be initiated, the CNDH presented a document prepared by a private accounting firm, which was then used as the basis for a discussion of whether the project should continue.[357]  A former ombudsman told Human Rights Watch that CNDH staff told him it was better for the CNDH-rather than the federation-to be in charge of a project like this one, and that it would find the resources to do so.[358]

According to the CNDH executive secretary, the CNDH and other state commissions opposed the fact that the secretariat created to administer the project, headed by the Mexico City Human Rights Commission, was going to receive far more funds than the state commissions would.[359]  But the leadership of the Mexican Federation of Ombudsmen claims it had designated an operational team-composed of six full-time, independent professionals selected through an open process-to use the funds to carry out activities planned in the cooperation agreement, which would benefit all state commissions.[360]

The cancellation of the project deprived the ombudsman system with funding that could have helped to strengthen its work.  While the CNDH's 2007 budget was approximately US$73 million, many state commissions still struggle to obtain the funds to cover their everyday operations.[361]  This cooperation agreement would have helped commissions with activities they usually are unable to fund, such as capacity building for their own personnel, expert seminars, and more frequent meetings to discuss strategies to improve their work.[362]

VIII - Accountability

Promoting accountability is one of the CNDH's principal functions.  Yet the CNDH is not subject to meaningful accountability.  This lack of adequate accountability undermines the institution's credibility and effectiveness as Mexico's most important advocate for human rights. 

Part of the reason for the CNDH's limited accountability is the fact that Mexican law grants it autonomous status in order to protect it from undue political interference.  But safeguarding the CNDH's autonomy does not require making it unaccountable.  In addition to granting the CNDH autonomous status, Mexican law also establishes accountability mechanisms to monitor its operations, the most important of which are the oversight functions granted to the Senate, which include the selection of the CNDH president.  Another is the CNDH's advisory council, made up of distinguished citizens, also selected by the Senate.  A third is the work carried out by the Federal Superior Auditor, an office which audits the spending of all federal entities in Mexico. 

None of these oversight mechanisms are currently functioning adequately.  The reasons vary, but the end result is the same: the CNDH's work is not subject to meaningful independent oversight.

As a result, the task of monitoring the CNDH's work falls on private actors and members of civil society.  Yet unfortunately, the CNDH's limited transparency makes it difficult for outsiders to gather the information necessary to evaluate its work. 

The Need for Accountability

There are several reasons to be concerned about the CNDH's current lack of accountability.  The first is generic: effective accountability mechanisms are, as a rule, important for ensuring that any state institution fulfills its functions as efficiently and effectively as possible. 

A second reason is specific to the substance of the CNDH's work.  As the preceding chapters have documented, the CNDH is currently not fullfilling its mandate in a variety of crucial ways.  While it undoubtedly makes important contributions on some specific human rights cases and issues, it routinely fails to press for remedies for human rights victims and systemic reforms to curb abusive policies and practices.  It also fails to publicize information it has on abuses and abusive practices, and fails to collaborate effectively with key human rights advocates in the government, civil society, and international community.

Independent Accountability Mechanisms

The National Congress

Mexican law grants the national Congress significant power to monitor and shape the work of the CNDH. The Senate appoints the CNDH president, selects the members of the CNDH advisory council, and holds a yearly public hearing during which it receives the CNDH's annual report and questions the CNDH president about its findings and activities.   Yet the Senate has not executed these functions in a meaningful manner and has thereby neglected its responsibility for providing oversight of the commission's work. 

Public Hearings

The Senate Human Rights Commission has an opportunity to scrutinize the CNDH's work every year at a public hearing, when the CNDH president, in accordance with the Constitution, submits the commission's annual report to Congress.[363] 

Yet the Senate commission has not used this opportunity to scrutinize and evaluate the CNDH's work.  For years, it has not subjected the CNDH to any serious questioning.  It has not allowed other human rights advocates to participate in the hearings.  It has engaged in no meaningful debate on the reports' contents.[364] 

Appointment of the CNDH President

Mexican law grants the Senate the power to select the CNDH president,[365] but requires that it carry out a broad consultation with civil society organizations before doing so.[366]  When exercising its selection power, it is questionable as to whether the Senate fulfilled this consultation requirement. 

In the most recent election, in 2004, the Senate voted to reelect the incumbent CNDH president to a second term.  Prior to the election, the Senate's Human Rights Commission solicited written proposals for candidates but there was no serious public debate regarding the proposals themselves.[367]  Instead it simply made a list of civil society groups supporting each candidate, and concluded that a "representative number" had endorsed the incumbent.[368]  

A group of individuals and human rights organizations that opposed the CNDH president's candidacy has challenged the Senate's decision, and the case is now pending before the Inter-American Commission on Human Rights.[369]

Appointment of Advisory Council Members

Mexican law also grants the Senate responsibility for selecting members of the CNDH's advisory council.  And, as with the election of the CNDH president, the law requires the Senate to consult with civil society members before making its decision.[370]  Again, it is questionable how seriously the Senate has taken this requirement. 

When it selected CNDH advisory council members in 2006, the Senate Human Rights Commission carried out the process behind closed doors, limiting citizen participation.  While it did publicly request civil society organizations to propose candidates for the positions, the selection process was carried out secretly.[371] 

The Senate commission only released information about the selection process, including the names of the candidates and their nominators, three months later, after a Mexican NGO publicly challenged the selection process.[372]  The information it released revealed that the Senate commission had completed only a cursory evaluation of the candidates, analyzing their resumes, but failing to interview any of them.[373]

In 2007 the Senate Human Rights Commission began the selection process for two new members of the advisory council.  At this writing, it had conducted open interviews with the candidates, but it was unclear whether and how it would take civil society organizations' points of view into account in making its decision.[374]

The Advisory Council

The CNDH's advisory council could play a key role in monitoring the quality of the CNDH's work.  It is virtually impossible to know to what extent it does so, however, because the advisory council itself is an opaque institution.  The limited information that is publicly available strongly suggests that it is not playing a meaningful oversight role. 

The advisory council is composed of ten individuals who must be "of recognized prestige in society," at least seven of whom must not be public officials.  There are no specific requirements as to how many members should represent minorities, such as indigenous peoples.[375] Its mandate, according to the CNDH's governing law, is to "determin[e] the general guidelines for the CNDH, approve the CNDH's internal rules, issue an opinion regarding the annual report proposed by the CNDH president, request the CNDH president [to provide] additional information on the issues that the CNDH is analyzing or has resolved, and receive information on how the budget is spent."[376]  

The advisory council meetings are closed to the public.  Human Rights Watch specifically requested permission to be present at one of them but never received a response to our request (in contrast, we were able to meet with all other CNDH staff members with whom we requested meetings).[377] The CNDH official in charge of providing support to the work of the council told Human Rights Watch that the CNDH's governing law does not say that meetings should be public, and that, according to the "principle of legality," as public officials, the members of the CNDH staff cannot do more than what the law states.[378] 

Other available sources of information are not helpful either.  For some time, it was difficult to obtain copies of the minutes of the council's meetings.[379] Although the CNDH began recently to post advisory council minutes on its website, it only includes minutes from meetings carried out after 2005.[380]

Moreover, the limited available information indicates that there is usually little serious debate about the issues the CNDH addresses.  For example, in 26 of 37 meetings carried out in 2003, 2005, 2006, and 2007, no council members had any comments, questions, or observations regarding the monthly reports; in nine meetings, members asked questions and in two meetings one comment was made.  In these meetings, advisory council members receive a detailed description of recomendaciones issued on specific cases-which have already been published by the CNDH-and they usually have no comments.[381]  Moreover, in the meeting minutes, there were no references to any of the cases that conclude through other means, which constitute approximately99 percent of all the concluded cases. 

When the council was presented drafts of the CNDH's 2004 and 2005 annual reports, it approved them without any substantive discussion in meetings that lasted half an hour or less.[382]  The advisory council meeting to approve the 2006 annual report lasted over two hours, during which a CNDH official explained the report, but there is no mention in the minutes of council members having made any comments.[383]

This lack of serious discussion is particularly problematic given that the advisory council approves the CNDH's internal rules, which have a direct impact on how the institution carries out its work.  Recent rule changes, such as new rules limiting victims' participation in the conciliation process and new implementing rules on the federal transparency law, are problematic from a human rights standpoint.[384]

In one of the few instances in which there was a substantive discussion and council members disagreed with an action by the CNDH president, it had no impact, given that council members were informed of the decision after it was carried out.  When, in July 2007, five council members expressed their concerns regarding the CNDH's decision to challenge the constitutionality of a Mexico City law that legalized abortion in the first 12 weeks of pregnancy, they did so after the CNDH had already presented its brief before the Supreme Court.[385]

Finally, there is a basic structural factor that makes it virtually impossible for the advisory council to serve as an effective accountability mechanism: the CNDH president is also the council's president.[386]  Rather than being overseen by the council, the CNDH president directs it.

Federal Superior Auditor

The CNDH's budgetary practices are monitored by its Internal Control Office (Organo Interno de Control, OIC).  The OIC is not an independent entity, but is subordinate to the CNDH president.[387] 

The main external control is the Federal Superior Auditor(Auditoria Superior de la Federacion, ASF), which reports to the federal legislature. Since 1999 the ASF has had responsibility for auditing how the federal government, including constitutionally autonomous agencies, spends public funds.[388]  Through a technical unit created for this purpose, a Vigilance Commission of the ASF within the House of Representatives monitors the ASF's work. In practice, the ASF is only able to review how the government spends less than 7 percent of the total federal budget.[389]

The ASF rarely audits the CNDH, and when it does, it only evaluates how the CNDH spends part of its budget.  According to the head of a technical unit that monitors the ASF, between 1999 and 2005, the ASF carried out three audits of the CNDH: one in 2000 and two in 2002.[390]   These audits only evaluated a part of the CNDH's spending during the previous year. A CNDH official provided Human Rights Watch with documentation that shows that the ASF has continued to review how the CNDH spends its budget since 2005, but said that, for example, the ASF only reviewed how the CNDH spent between 14 to 18 percent of its budget in 2006.[391] 

A major gap in the entire budget accountability process within the CNDH is that it is generally limited to evaluating whether or not the institution violates any laws when spending its budget.  Any external evaluation of budgetary spending should, as well, analyze whether the CNDH's available human, material, financial, and technological resources are being used efficiently to fulfill the purposes for which the CNDH was created.

Transparency

In the absence of effective independent oversight mechanisms, the most important means of holding the CNDH accountable is public scrutiny by the press, civil society groups, and ordinary citizens.  However, meaningful public scrutiny is only possible if those who would scrutinize have access to sufficient information regarding the activities and budgetary practices of the CNDH.  In short, it requires transparency on the part of the CNDH. 

Unfortunately, the CNDH is not a very transparent institution.  While the 2002 transparency law presented a unique opportunity to open the institution up to greater public scrutiny, the CNDH has done a poor job of implementing the law's provisions.[392]  In fact, according to a study by the Federal Institute for Access to Official Information (Instituto Federal de Acceso a la Informacion Publica, IFAI) and the Center of Economic Research and Teaching (Centro de Investigaciones y Docencia Economicas, CIDE), the CNDH has yet to adjust its operating rules and institutional design to improve access to information.[393]   The study analyzed 15 key state entities and ranked the CNDH in the bottom third with respect to implementation of the transparency law. 

Incomplete Public Disclosure

Although the information included on the CNDH website has increased since the federal transparency law was passed, the CNDH does not publicize valuable information it holds.  As we discussed in chapter VI, the CNDH does not disseminate information on human rights cases that end with a conciliation agreement, which constitute the vast majority of cases in which it documents abuses. 

Moreover, even though the CNDH posts online all information requests and responses, the responses that the CNDH posts on its website do not always include the information that is requested, forcing other people who want the same information to ask-and, in some cases, pay-for it.[394]  In 2005, for example, an individual asked the CNDH for access to collaboration agreements signed with state commissions and other institutions.[395]  In 2006 the CNDH said it would provide the individual with a list of recomendaciones with which government authorities had complied.[396] And in 2007 it said it would provide copies of an investigation carried out by the CNDH regarding the administrative responsibility of a company it had hired.[397]  In none of these cases did it make the information available online.[398]

Applying Broad Confidentiality Norms

The CNDH has also limited the provision of information by applying broad confidentiality norms, approved by its own advisory council.  As we saw in chapter VI, the CNDH's broad application of these norms has resulted in abuse victims, as well as the general public, being denied access to crucial information on the human rights practices of state institutions.[399]  

The CNDH has also applied broad confidentiality norms to limit access to information on its advisory council.  In some cases, instead of providing public versions of documents with delicate information crossed out, the CNDH denied access to all requested information, arguing that it is protecting personal data.  An example is an information request that asked the CNDH for copies of the resumes of members of its advisory council. Instead of providing a public version of the resumes with the information that the CNDH considered personal data omitted, the CNDH denied access to the entire document.[400] 

In other cases, the CNDH responded to requests for copies of advisory council meeting minutes, arguing that the deliberations at such meetings, reflected in the minutes, touch on "ideological positions, opinions, beliefs and convictions that could affect the members," and that such material therefore is confidential.[401]  In 2004 it provided copies of the minutes with sections considered confidential crossed out; in 2005 it denied access to the minutes in their entirety.  And even in the former case, it crossed out even the most basic information, such as the name of the CNDH's president.[402]  

The advisory council members' opinions should not be considered personal data if they are related to the substantive work they carry out as council members, and/or are related to issues of public interest.[403] As soon as the meetings of the advisory council conclude and decisions are reached on particular topics, there is no reason to keep secret the record of advisory council debates on those topics.  The transparency law states that information that contains opinions, recommendations, or points of view of public officials voiced during deliberative processes will be privileged "until the definitive decision is adopted."[404]  Furthermore, according to IFAI guidelines on producing public versions of documents, the names of public officials and information on decisions they reach cannot be deemed privileged.[405] 

As recently as March 2007, CNDH staff members told Human Rights Watch that the reason they could not provide information on advisory council members was that the members were not public officials.[406]  Yet article 108 of the Mexican Constitution defines as public official "any person who works for, or holds a position or commission of any type in, the federal public administration."   And, even if the council members are not considered public officials, the IFAI has held that minutes of these types of advisory councils register "the exercise of legal abilities and the activity of an entity subject to the [transparency] law, which uses and administers public resources and is composed of public officials" and thus have to be made public.[407]

Nonetheless, as of this writing, the CNDH posts on its website the resumes of all advisory council members, chief investigators, and heads of all offices within the CNDH, as well as minutes from advisory council meetings carried out since 2005, without blacking out council members' names.[408]

Prohibitively High Costs for Copies

The CNDH has even limited public access to information that it itself acknowledges should be disclosed by imposing prohibitively high costs for photocopies of documents. 

The CNDH has charged 93 pesos (approximately US$8) for each copy of a page containing privileged or confidential information.[409]  So, for example, when the Mexican NGO Fundar requested copies of files on prison abuses that had concluded with recomendaciones between July 2005 and July 2006, it was asked for a payment of 90,000 pesos (approximately $8,100) in exchange for the documents.[410]  Similarly, when the Atalaya Program of the ITAMUniversity requested copies of the files for all cases that ended in recomendaciones in 2003, 2004, and 2005, it faced a charge of 580,000 pesos (approximately $53,000).[411] 

CNDH officials told Human Rights Watch that the amounts charged in such cases were determined by the Federal Law of Rights (Ley Federal de Derechos), which stipulates how much state institutions can charge for different types of documents-such as certified copies, duplicates, legalization of signatures, etc.-and then determines a specific price "for any other certification or provision of documents different from those listed."  Since the list does not include documents that require the work of blacking out privileged or confidential information, the CNDH concluded that the price for a copy of a single page from such documents should be set at 93 pesos, the price stated in the previously mentioned catch-all clause.[412]   

Yet the Federal Law of Rights is not actually intended to apply to the CNDH, but rather to services "provided by any of the state ministries and the attorney general's office."[413]  What is directly applicable to the CNDH is the federal transparency law, which states that the maximum price a state institution can charge for copies is the sum of the reproduction and mailing costs.  The transparency law also requires state institutions to strive to lower these charges.[414] 

In both the Fundar and Atayala cases, courts have held that the CNDH was wrong to charge so much.  After Fundar won an injunction from a court, the CNDH decided to charge it only 451 pesos (approximately $41) for copies of all of the documents.[415]  In the Atalaya case, the Supreme Court ruled in favor of the petitioner in June 2007.[416]  In October 2007, the CNDH held it would limit the costs it would charge to obtain copies.[417]

Limited Review Mechanism

A final serious shortcoming in the CNDH's transparency practices is that it entrusts review of those practices to one of its chief investigators,[418]a member of the very institution responsible for making the information available in the first place.  In theory, it is possible to appeal decisions to withhold information before the courts, since Mexican law makes it possible to seek an injunction against any act by the federal government (except for acts by the Supreme Court).[419] But this procedure has proven to be prohibitively long, expensive, and burdensome, and therefore is not a viable option for most Mexicans.

Acknowledgements

This report was written by Tamara Taraciuk, Mexico researcher, and Daniel Wilkinson, deputy director of Human Rights Watch's Americas Division, based on research conducted by Tamara Taraciuk.  Jorge Contesse, a consultant with the Americas Division, researched and co-wrote chapter IV.  The report was edited by Jose Miguel Vivanco, executive director of the Americas Division, Aisling Reidy, senior legal advisor at Human Rights Watch, Joe Saunders, deputy program director at Human Rights Watch, Marianne Mollman, advocacy director of the Women's Rights Division, and Rebecca Schleifer, researcher of the HIV/AIDS program.  Americas Division associates Danielle Wainer, Joanna Edwards, and Paola Adriazola contributed to research logistics and production.  Americas Division interns Kate Flatley, India Geronimo, Anne Golding, Andrea Onate-Madrazo, Miriam Ruiz Mendoza, and Joyce Shim provided valuable research support.

Human Rights Watch would like to thank the numerous organizations and individuals that contributed to this report. We are especially grateful for the critical insights and advice we received from Miguel Pulido and Graciela Rodriguez from Fundar, Miguel Sarre and Sandra Serrano from ITAM University, Sergio Aguayo from El Colegio de Mexico, Emilio Alvarez Icaza and Gabriela Aspuru from the Mexico City Human Rights Commission, Edgar Cortez and Michel Maza from the Red Nacional de Organismos Civiles de Derechos Humanos "Todos los Derechos para Todas y Todos," and Ana Luisa Ligouri.  We also received valuable input from Mariclaire Acosta from the Organization of American States, Pedro Morales, Fabian Sanchez from the Comision Mexicana de Defensa y Promocion de los Derechos Humanos, Fabienne Venet and Elba Coria from Sin Fronteras, Gloria Ramirez from the Academia Mexicana de Derechos Humanos, Claudia Ordoñez from Tlachinollan, John Ackerman from UNAM University, Luis Adrian Quiroz from DVVIMSS, and Alejandro Madrazo.  Human Rights Watch takes full responsibility for any errors or omissions in this report. 

We would like to thank the current and former CNDH officials we interviewed; as well as Jose Luis Soberanes Fernandez, CNDH president, Javier Moctezuma Barragan, CNDH executive secretary, and Ariadne Garcia Hernandez and Alberto Piedra Gutierrez from the executive secretariat of the CNDH for organizing our meetings with the CNDH staff. 

We are deeply grateful to the numerous victims and relatives of victims of human rights abuses who shared information regarding their cases with us.

Finally, Human Rights Watch would like to thank the Ford Foundation, The William and Flora Hewlett Foundation, the John Merck Fund and the General Service Foundation for their generous funding of our work in Mexico.