IV. CONCLUSION AND RECOMMENDATIONS

The military attorney general and other PGJM officials assured Human Rights Watch that they were committed to the protection of human rights in Mexico. They acknowledged the existence of widespread distrust among civilians toward military justice officials (and justice officials generally). They said that this distrust makes it more difficult for them to function effectively, as civilians are frequently unwilling to assist them in their investigations and prosecutions. They suggested that one way to improve the military justice system would be through more active participation of civilians in the investigation and prosecution as coadyuvantes (or co-prosecutors).

Human Rights Watch appreciated the PGJM officials' willingness to discuss these issues and to answer our questions. We agree that there should be more active civilian involvement in the investigation and prosecution of human rights cases. We also agree that it is important to acknowledge the distrust that impedes that participation.

We were troubled, however, by the PGJM's tendency to shift the burden of responsibility to civilians rather than recognize the failings of the system itself. When discussing specific cases, the only possible shortcoming of their investigations that PGJM officials would acknowledge was that civilians did not provide information to substantiate claims of alleged abuses. Either civilians refused to file the formal denunciation that prosecutors needed to open formal investigations, or they refused to provide the corroborating information needed to establish grounds for prosecution.

What the PGJM did not acknowledge were the reasons civilians distrust the military justice system. One of these is the widespread perception that the PGJM does not seriously investigate or prosecute cases of abuse by the military, and has not done so in the past. According to the state's number-two civilian prosecutor, the Lindavista case was the first time in Guerrero that soldiers were to be prosecuted for crimes committed while on duty.¹⁰¹ The accuracy of this perception is supported by the cases that Human Rights Watch has investigated. Despite repeated requests from Human Rights Watch, the PGJM failed to provide any information that might contradict it.¹⁰²

Another reason to distrust the PGJM is that there is no mechanism that holds it accountable when it fails to carry out proper investigations. Although the civilian CNDH has examined such failures, its authority is limited to making recommendations that military justice authorities do a better job. The military has generally responded by carrying out superficial investigations and concluding on the basis of these that no violation was committed by army personnel. Even where the CNDH doubts the seriousness of the PGJM's response, it cannot compel the PGJM to re-open an investigation.

A third reason for distrust is the lack of transparency of the military justice system. PGJM officials are prohibited by law from making public documents from judicial proceedings. While the CNDH can demand information from the military, and can share this information in its own published reports, it cannot turn military documents over to the public. Only the victims and their relatives can gain access to case documents, but to do so they must seek participation as coadyuvantes during the process, or file a judicial appeal known as an amparo petition in the weeks immediately following the PGJM's closure of the case.

But neither option has been available in practice. The Mexican secretary of defense acknowledged recently that the system of coadyuvancia has not been active in recent years.¹⁰³ And the amparo option is complicated by the restricted time period in which petitions must be submitted (within two weeks of the PJGM's closure of the case), and because it requires legal resources that many victims and their families simply cannot afford. Consequently, the only information about the cases that reaches the public is what the military chooses to divulge. The resulting lack of transparency is conducive to incompetence and abuse of authority.

Finally, however committed the PGJM may be to improving its ability to prosecute human rights cases through greater civilian participation, there remains a fundamental problem that is sure to frustrate its efforts: fear.

Human Rights Watch encountered a pervasive fear of military authorities among the communities we visited in Guerrero. Some witnesses grew visibly nervous when discussing army abuses, others refused to discuss these abuses with us. One of the most disturbing moments of our mission was when a community leader from the town of Lindavista told us that he could not discuss the public protest which he had led demanding an investigation into the killing of a town resident by soldiers. He feared he would suffer reprisals from the military if he continued talking publicly about what had occurred in the town. "We're out here in a remote place," he explained. "If anything happens to us, who's going to help us?"¹⁰⁴

The fear is compounded by the belief that reprisals can come under color of the law. In Pizotla, Las Palancas, and El Charco, civilians allege that they were convicted on trumped up charges by soldiers as a form of reprisal. One of the Lindavista leaders also told us that, since the protest in January 2001, he had been arrested on minor weapons charges and told by the arresting officer that he had been singled out because he had been "agitating" in the community.¹⁰⁵

Two features of the criminal justice system facilitate this sort of abuse of authority. One is the principle of "procedural immediacy," which makes it difficult for civilian defendants to recant coerced confessions by giving greater evidentiary weight to the first statements they give. Judges have commonly interpreted this principle in such a way that, for confessions to be disregarded, defendants must prove they were tortured--something which it is often very difficult or impossible to do given that certain forms of torture produce no lasting physical evidence. The second feature is the tendency of courts, when faced with contradictory testimony from civilians and military personnel, to grant the latter a presumption of greater veracity.

Under the current system, civilians whose rights have been abused by the army should be able to turn to the PGJM to offer them protection and redress. But the civilians we spoke with did not differentiate one branch of the army from another. Indeed, in one community they complained that the army had summoned people who had denounced human rights abuses to give statements at a military facility. What might have been a good-faith effort by PJGM officials to gather evidence was perceived by community members to be harassment.

Even if the PGJM were fully committed to combating human rights abuses by the army, it would be difficult to convince civilians that military prosecutors are able to act independently of the interests of the army. The PGJM prosecutors are uniformed soldiers, trained by an institution that places a premium on loyalty and discipline.

The military justice system is fundamentally unfit to handle human rights cases. A more active coadyunvancia system and greater transparency could alleviate the problem somewhat. But the only real solution is an end to military jurisdiction over human rights cases.

Recommendations

Human Rights Watch calls on the Mexican government:

· To promote the early adoption of legislation to ensure that all investigations and prosecutions of alleged crimes involving military personnel that may constitute human rights violations are conducted under strict civilian jurisdiction.

· To ensure that the alleged human rights violations discussed in this report--in the El Cucuyachi, Pizotla, El Charco, El Nogal, Las Palancas and Lindavista cases--are thoroughly and impartially investigated and that any military or other officials found to have committed human rights violations are brought to justice.

· To ensure that army personnel engaged in internal security activities abide by international standards of law enforcement conduct--using deadly force only as a last resort to protect life, and turning detained civilians over to proper civilian authorities without undue delay.

· To ensure that military investigators do not interfere with investigations into alleged human rights violations that are conducted by their civilian counterparts in the public prosecutor's office.

· To ensure that abuse victims and their representatives are given access to investigation records and kept apprised of the status of criminal proceedings against army personnel accused of human rights abuses, consistent with protecting the efficacy of the investigation and the rights of the accused.

· To provide information regularly to the public regarding the number of investigations of alleged army abuses that are underway and the status and disposition of those cases, and to publish the findings of such investigations.

· To develop legislation that would exclude from judicial processes evidence obtained through human rights violations (including an express statutory presumption of coercion for confessions obtained following prolonged detention).

· To require the effective assistance of a lawyer during the interrogation of criminal suspects, and to require that self-incriminating declarations have legal value only when they are made in the presence of a judge.

101 Miguel Barreto Sedeno, cited in Kevin Sullivan, "Village's Rage Rattles an Army," Washington Post, June 21, 2001.

102 Human Rights Watch requested that the PGJM provide it with numbers of prosecutions of human rights cases in recent years. The PGJM initially promised to do so. But despite repeated requests transmitted through the Foreign Ministry (the mode of transmission indicated by the PGJM), no such information was made available.

103 In June 2001, defense secretary Ricardo Clemente Vega García ordered the PGJM "to activate" the system of coadyuvancia [Jesus Aranda, "Sedena se abre a la participación civil en pesquisas de abuso military," La Jornada, June 11, 2001].

104 Human Rights Watch interview with community leader (identity protected for security reasons), Lindavista, Guerrero, June 16, 2001.

105 Human Rights Watch interview with community leader (identity protected for security reasons), Lindavista, Guerrero, June 16, 2001.