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

¹ Interior Ministry, “Decreto por el que se crea la Comision Nacional de Derechos Humanos como un organo desconcentrado de la Secretaria de Gobernacion” [Decree by which the National Commission on Human Rights is created as a de-concentrated agency of the Interior Ministry], June 5, 1990.

Jorge Carpizo MacGregor was the CNDH president between June 6, 1990 and January 4, 1993; Jorge Madrazo Cuellar between January 14, 1993 and November 16, 1996; Mireille Roccatti between January 8, 1997 and November 13, 1999; and Jose Luis Soberanes Fernandez has been the CNDH president since November 16, 1999.

The creation of the CNDH followed the establishment of a General Directorate on Human Rights [Direccion General de Derechos Humanos], which was created within the Interior Ministry on February 13, 1989. CNDH, “Antecedentes” [Organization History], undated, http://www.cndh.org.mx/lacndh/anteced/antece.htm (accessed May 9, 2007), para. 4. See also Jorge Luis Sierra Guzman et al., La Comision Nacional de Derechos Humanos: Una vision no gubernamental [The National Human Rights Commission: A nongovernmental vision] (Mexico City: Comision Mexicana de Defensa y Promocion de los Derechos Humanos, A.C., 1991), pp. 47-48; and John Ackerman, Organismos Autónomos y Democracia: El Caso de México [Autonomous organizations and democracy: the case of Mexico] (Mexico City: Siglo XXI/IIJ-UNAM, 2007), chapter 3.

² Guzman, La Comision Nacional de Derechos Humanos [The National Human Rights Commission], pp. 48-49.

³ Ibid., p. 51. See also Ana Puga, “Slaying of activist sparks Mexico furor / Federal lawmen point to drug dealers, but police themselves under suspicion,” Houston Chronicle, June 17, 1990; Gregory Katz, “Mexican rights chief details panel’s work,” The Dallas Morning News, December 14, 1990.

⁴ Inter-American Commission on Human Rights, Resolution 01/90 – Cases 9768, 9780 and 9828, May 17, 1990, http://www.cidh.org/annualrep/89.90eng/Mexico9768.htm (accessed May 25, 2007).

⁵ The Mexican government was preparing for the realease of a Human Rights Watch report, “Human Rights in Mexico: A Policy of Impunity,” when Salinas decided to create the CNDH. Americas Watch (now Human Rights Watch/Americas), Human Rights in Mexico: A Policy of Impunity (New York: Human Rights Watch, 1990). Human Rights Watch interview with Mariclaire Acosta, director of the Department for the Promotion of Governance at the Organization of American States, Washington, DC, October 11, 2006. According to a history of the CNDH, “Days before the presidential decree creating the CNDH was published, the Mexican government was preparing itself for the imminent publication of an Americas Watch report.” Guzman, La Comision Nacional de Derechos Humanos [The National Human Rights Commission], p. 53.

⁶ Law on the National Human Rights Commission (Law on the CNDH) [Ley de la Comision Nacional de los Derechos Humanos],1998, http://www.cndh.org.mx/normat/leycndh/leyCndh.pdf (accessed May 25, 2007).

⁷ The reform also changed the name of the institution from “Comision Nacional de Derechos Humanos” [National Commission of Human Rights] to “Comision Nacional de los Derechos Humanos” [National Commission of the Human Rights]. CNDH, “Antecedentes” [Organization History], undated, http://www.cndh.org.mx/lacndh/anteced/antece.htm (accessed May 9, 2007), para. 5.

The CNDH now elaborates its own budget and sends it to the Ministry of Finance and Public Credit (Secretaria de Hacienda y Credito Publico, SHCP), which incorporates it into the annual federal budget. The executive presents the federal government’s budget to the House of Representatives, which has the exclusive authority to approve it. After it is approved, the SHCP informs the CNDH of its budget for that particular year.

⁸ At time of writing, US$1 was worth approximately 11 Mexican pesos.

In 1992, the CNDH budget was 73 million pesos (approximately US$7 million), and between 1993 and 2000 it oscillated between 215.5 and 302.3 million pesos (approximately between US$19 million and US$27.5 million). CNDH document 28962 from file 2004/85-T, October 28, 2004.

In 2001, the CNDH’s budget was 410 million pesos (approximately US$37 million), in 2002 it was 456.3 million pesos (approximately US$41.5 million), in 2003 it was 575 million pesos (approximately $52 million), in 2004 it was 629.1 million pesos (approximately $57 million), in 2005 it was 708.1 million pesos (approximately US$64 million), in 2006 it was 742.5 million pesos (approximately US$67.5 million), and in 2007 it is 801 million pesos (approximately US$73 million). Centro de Estudios de las Finanzas Publicas [Center for Public Financial Studies], Mexican federal budget for 2000, 2001, 2002, 2003, 2004, 2005, 2006, and 2007, http://www3.diputados.gob.mx/camara/001_diputados/006_centros_de_estudio/02_centro_de_estudios_de_finanzas_publicas/02_publicaciones/01_documentos (accessed May 25, 2007).

In 2006, the Colombian ombudsman’s office, which has the second largest budget in the Americas, received 84.802, 30 million Colombian pesos (approximately US$37 million). Colombia ombudsman’s office, “Apropriaciones presupuestales 2002-2006” [Budget expenditures 2002-2006], http://www.defensoria.org.co/?_s=contable (accessed May 21, 2007). Human Rights Watch email communication with Oscar Concha Jurado, staff member from the Colombian ombudsman’s office, October 19, 2006. As of this writing, US$1 was worth around 2300 Colombian pesos.

⁹ Human Rights Watch interview with Pablo Escudero, oficial mayor of the CNDH, Mexico City, March 21, 2007. The oficial mayor is the head of the Oficialia Mayor, an office whose functions are described below. Human Rights Watch telephone interview with a UN official from the National Human Rights Institutions Forum, Geneva, January 17, 2007.

¹⁰ Law on the CNDH, art. 2.

¹¹ The chief investigator in each investigative area is called a visitador. Other offices within the CNDH are the Executive Secretariat (in charge of promoting the CNDH’s work internationally and international issues in Mexico, and of the CNDH’s relationship with international actors); the Technical Secretariat (in charge of the CNDH’s relationship with its advisory council, nongovernmental organizations, state human rights commissions, and other branches of government; as well as of carrying out capacity-building courses on human rights); the Oficialia Mayor (in charge of planning and executing the economic, budgetary and administrative issues within the CNDH); the General Directorate of Social Communication (in charge of publicizing the activities, benchmarks, objectives, achievements, and presence of the CNDH); the General Directorate of Complaints and Orientation (in charge of receiving cases, and carrying out administrative activities related to processing cases, such as updating the database and managing correspondence); the General Directorate of Planning and Analysis (in charge of assisting the CNDH president in his or her activities); the General Directorate of Computerized Information (in charge of implementing computerized systems to improve the CNDH’s work); the General Directorate of Legal Affairs (provides legal assistance to the CNDH president in cases in which the CNDH is a party, and reviews documents and contracts signed by the CNDH); the National Human Rights Center (carries out academic investigations related to human rights); and the Internal Control Organ (in charge of overseeing how the CNDH spends its budget and whether its staff complies with applicable norms). CNDH, “Estructura Organizacional” [Organizational Structure], undated, http://www.cndh.org.mx/lacndh/estruct/estorg.htm (accessed May 25, 2007).

¹² Law on the CNDH, arts. 44, 46, and 49. Internal rules of procedure of the National Commission of the Human Rights (CNDH, Rules of Procedure) [Reglamento Interno de la Comision Nacional de los Derechos Humanos], September 29, 2003, http://www.cndh.org.mx/normat/reglamen/regInter.pdf (accessed May 25, 2007), arts. 128 – 139.

¹³ 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.” CNDH, Rules of Procedure, art. 174.

General recommendations examine the laws, policies, and practices that lead to human rights violations. According to the CNDH’s rules of procedure, “The National Commission will be able to issue general recommendations to different government authorities in the country, with the purpose of promoting changes to norms and administrative practices that lead to human rights violations. These recommendations will be elaborated similarly than those in specific cases and will be based on studies carried out by the National Commission’s investigative units, after approval by the National Commission’s president. Before they are issued, these recommendations will be analyzed and approved by the advisory council.” CNDH, Rules of Procedure, art. 140.

¹⁴ The CNDH’s rules of procedure state the CNDH must seek an amicable settlement with authorities implicated in abuses in every case it receives, unless it is analyzing the possible commission of serious human rights violations.

If the government authority does not agree to conciliate the case, does not implement the conciliation agreement it signed, or if the CNDH considers the government committed a serious human rights violation, it will issue a public recomendacion. CNDH, Rules of Procedure, chapter V.

¹⁵ CNDH, Recomendacion 104/95, August 14, 1995.

¹⁶ Mexican Supreme Court, Caso 3/96, Peticion del Presidente de los Estados Unidos Mexicanos para que la Suprema Corte de Justicia de la Nacion Ejerza la Facultad Prevista en el Parrafo Segundo del Articulo 97 de la Constitucion Federal [The Petitition of the President of the United States of Mexico Requesting the Mexican Supreme Court to Exercise Powers Provided to it under the Second Paragraph of Article 97 of the Federal Constitution], April 23, 1996, http://200.38.86.53/NR/rdonlyres/04DCBD9F-55F0-4590-B4CC-56383A9BF5D7/0/EjecReg200111.pdf (accessed May 25, 2007).

¹⁷ Inter-American Commission on Human Rights, Case 49/97 – Case 11.520, Judgment of February 18, 1998, Inter-Am Ct. H.R., 11.520, http://www.cidh.org/annualrep/97eng/Mexico11520.htm (accessed May 25, 2007).

¹⁸ CNDH, Recomendacion 061/1996, July 15, 1996.

¹⁹ Inter-American Commission on Human Rights, “Working meeting minutes – Case 11.822 – Reyes Penagos,” November 3, 2006; Isain Mandujano, “Gobierno de Chiapas pide perdon por la detencion, tortura y ejecucion extrajudicial de Reyes Penagos” [The government apologizes for the detention, torture and extrajudicial execution of Reyes Penagos], Proceso, February 21, 2007; and Human Rights Watch interview with Fabian Sanchez, director of the Comision Mexicana para la Defensa y Promocion de los Derechos Humanos, Mexico City, March 6, 2007.

²⁰ “El titular de la PGR recibe informe historico de la Femospp” [The Head of the Attorney General’s Office receives historical report from the Special Prosecutor’s Office], Attorney General’s Office, press release 1474/06, November 17, 2006.

²¹ CNDH, “Estructura Organizacional” [Organizational Structure], undated, http://www.cndh.org.mx/lacndh/estruct/estorg.htm (accessed May 25, 2007). Human Rights Watch interview with Mauricio Farah Gebara, fifth visitador, and staff from the fifth visitaduria, Mexico City, March 20, 2007. Documentation provided to Human Rights Watch by Mauricio Farah Gebara, March 20, 2007. Human Rights Watch interview with Fabienne Vennet, executive director of Sin Fronteras, Mexico City, November 29, 2006.

²² Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007. CNDH, “Diagnostico Nacional de Supervision Penitenciaria” [National Diagnosis of Penitenciary Supervision], February 2006, http://www.cndh.org.mx/informes/default.asp (accessed May 25, 2007).

²³ “Nuestros Derechos. Segunda edicion” [Our Rights. Second Edition], CD-ROM by the CNDH, December 2004. As of this writing, the CNDH is producing the third edition of the CD-ROM.

²⁴ Human Rights Watch interview with Francisco Illanes Solis, general director of information technology of the CNDH, Mexico City, March 16, 2007.

February 2008

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