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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 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 ITAM University 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.



70 CNDH, Press Release 128/04, August 25, 2004; CNDH, Press Release 144/04, September 23, 2004; CNDH, Press Release 147/04, September 29, 2004.

363 Mexican Constitution, art. 102 B, para. 7.

364 Leticia Burgos, a former senator who served on the commission from 2000 to 2006 told Human Rights Watch, “there was no debate” after the CNDH president presented the institution’s annual report. Human Rights Watch interview with Leticia Burgos, former PRD senator, Mexico City, March 7, 2007. 

Human Rights Watch interview with Eliana Garcia, former PRD member in the House of Representatives, Mexico City, January 25, 2007.

365 Mexican Constitution, art. 102 B, paras. 5 and 6.

366 According to art. 10 of the Law on the CNDH, “(…) For these purposes, the corresponding commission within the Senate will carry out a broad consultation amongst civil society organizations that represent different sectors of society, as well as amongst public and private organizations that promote and defend human rights.  Based on this consultation, the corresponding Senate commission will propose to the Senate three candidates out of which the person to occupy the position will be elected or, if it is the case, the current president will be ratified.”

According to the Paris Principles, to guarantee independence and pluralism “the appointment of [a national institution’s] members, (…) should be established according to a procedure with all the guarantees needed to ensure the pluralist representation of the social forces (of the civil society) concerned by the promotion and protection of Human Rights.”  Paris Principles, Composition and guarantee of independence and pluralism, principle 1.

367 Human Rights Watch interview with Leticia Burgos, former PRD senator, Mexico City, March 7, 2007.

368 Senate Human Rights Commission, “Dictamen con relación a la reelección del Presidente de la Comisión Nacional de los Derechos Humanos” [Decision with respect to the reelection of the CNDH president], undated. Technical secretariat of the Senate’s Human Rights Comisión, “Registro de Candidatos a la Presidencia de la Comision Nacional de Derechos Humanos” [Registry of Candidates to the Presidency of the CNDH], undated. Senate’s Human Rights Commission, “Relacion de propuestas registradas en la Comision de Derechos Humanos de Senado de la Republica” [List of proposals registered in the Human Rights Commission of the Senate of the Republic], undated.

369 300 individuals and organizations had opposed the incumbent’s candidacy.  Among other things, they argued that the CNDH reports and recomendaciones do not use international law arguments; that the CNDH special reports on Ciudad Juarez and Guadalajara impeded human rights victims to obtain reparation and full access to justice because they do not clearly establish any government official’s responsibility; that the CNDH has not collaborated actively with the UNHRCH office in Mexico; and that their internal regulations on transparency are more limited than the federal law that they should implement.  “No a la Ratificación de Soberanes” [No to Soberanes’ Ratification], paid ad published in La Jornada, October 12, 2004, http://www.amdh.com.mx/ombudsweb/ (accessed on February 15, 2007).  See also Centro Prodh, “Postura del Centro Prodh ante la renovación en la Comisión Nacional de los Derechos Humanos” [Centro Prodh’s position regarding the renovation of the CNDH], October 6, 2004, http://200.38.62.10/~academia/ombudsweb/docs/Postura_AgustinPro_y%20Gestion%20de%20la%20CNDH.pdf, (accessed on February 15, 2007).

A group of nongovernmental organizations (including Fundar, Centro de Analisis e Investigacion, A.C., Centro de Derechos Humanos Fray Jacobo Daciano A. C., and the Bar Association of the state of Guanajuato A. C.) and two individuals (Bernardo Romero Vázquez and Raymundo Gil Rendón) filed injunctions against the Senate decision. They argued that the Senate Human Rights Commission did not provide a space for candidates to give their points of view before making their decision, that they proposed the ratification of Mr. Soberanes without any justification, and that they did not comply with article 10 of the Law on the CNDH because they merely proposed the ratification of the current president (instead of suggesting three candidates for the position).  The Mexican Supreme Court decided that it was not possible to legally challenge the Senate’s decision because the legislative branch had the constitutional power to elect the president of the CNDH, and the way it is carried out cannot be evaluated by the courts. Mexican Supreme Court, Amparo en Revision 614/2006, June 2, 2006; Mexican Supreme Court, Amparo en Revision 471/2006, June 2, 2006; Mexican Supreme Court, Amparo en Revision 1523/2006, November 10, 2006.

This case is now pending before the Inter-American Commission on Human Rights. Letter from Santiago Canton, executive secretary of the IACHR, to Bernardo Romero Vazquez, January 8, 2007. The case number before the IACHR is P-1352-06.

370 Law on the CNDH, art. 18.

371 The Senate’s Human Rights Commission issued a public announcement on November 16, 2006.  On December 5, 2006, the Senate Human Rights Commission proposed Miriam Cardenas Cantu and Miguel Carbonell as council members, arguing that they fulfill the requirements of Article 17 of the Law on the CNDH. The Senate approved their proposal on December 20, 2006. Senate Human Rights Commission, “Dictamenes a discusion de la Comision de Derechos Humanos, el que contiene punto de acuerdo por el que se nombra a los CC. Miriam Cardenas Cantu y Miguel Carbonell Sanchez, como consejeros integrantes del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Decisions by the Human Rights Commission that contains an agreement by which it names Miriam Cardenas Cantu and Miguel Carbonell Sanchez as members of the CNDH advisory council], December 5, 2006. Mexican Senate, “Nombramiento de Consejeros Integrantes del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Appointment of members of the CNDH advisory council], December 20, 2006.

372 Fundar, “Falta de Transparencia de la Comision de Derechos Humanos del Senado que preside Rosario Ibarra de Piedra” [Lack of transparency of the Senate Human Rights Commission presided by Rosario Ibarra de Piedra], Press release number 28, February 15, 2007. Information request by Luis Miguel Cano Lopez to the Mexican Senate, February 13, 2007. Mexican Senate, “Nombramiento de Consejeros Integrantes del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Appointment of members of the CNDH advisory council], December 20, 2006.  Mexican Senate, document CDH/S-0273/07, March 2, 2007.

373 Mexican Senate, “Nombramiento de Consejeros Integrantes del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Appointment of members of the CNDH advisory council], December 20, 2006.  Mexican Senate, document CDH/S-0273/07, March 2, 2007.

374 Senate Human Rights Commission, “Convocatoria” [Call for nominations], November 7, 2007.  Human Rights Watch telephone interview with Graciela Rodriguez, Fundar, Mexico City, November 26, 2007.  “Comparecen en el Senado 10 aspirantes a Consejeros de la CNDH” [Ten candidates to the CNDH advisory council are called before the Senate], La Jornada, November 22, 2007.

375 Law on the CNDH, art. 17.

376 Law on the CNDH, art. 19.

377 Email communication from Human Rights Watch to Javier Moctezuma, executive secretary of the CNDH, February 13, 2007.

378 Human Rights Watch interview with Jesus Naime, technical secretary of the CNDH, Mexico City, March 20, 2007.   See chapter IV of this report for a detailed analysis of the applicability of this principle to the CNDH’s work.

379 See the following chapter on transparency for a discussion on how the CNDH applies confidentiality norms broadly.

380 CNDH, “Acuerdos del Consejo Consultivo” [Decisions by the Advisory Council], undated http://www.cndh.org.mx/normat/acucons/acucons.asp (accessed November 26, 2007).

381 Minutes from advisory council meetings on March 11, 2003; April 8, 2003; July 8, 2003; January 11, 2005; February 8, 2005; March 8, 2005; April 5, 2005; May 17, 2005; June 14, 2005; July 12, 2005; August 16, 2005; September 13, 2005; October 11, 2005; November 8, 2005; December 13, 2005; January 20, 2006; February 14, 2006; March 14, 2006; April 4, 2006; May 9, 2006; June 13, 2006; July 11, 2006; August 8, 2006; September 12, 2006; October 10, 2006; November 14, 2006; December 12, 2006; January 16, 2007; Februaru 13, 2007; March 13, 2007; April 17, 2007; May 8, 2007; June 12, 2007; July 10, 2007; August 14, 2007; September 11, 2007; and October 9, 2007.

382 CNDH, “Acta de la sesion extraordinaria numero 197 del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Minutes from the extraordinary session 197 of the CNDH advisory council], January 11, 2005. CNDH, “Acta de la sesion extraordinaria numero 210 del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Minutes from the extraordinary session 210 of the CNDH advisory council], January 20, 2006.

383 CNDH, “Acta de la sesion extraordinaria numero 223 del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Minutes from the extraordinary session 223 of the CNDH advisory council], January 16, 2007.

384 See chapter VII on victims’ participation in the conciliation process, and chapter VI and the following section on the CNDH’s implementing regulations of the federal transparency law.

385 CNDH, “Acta de la sesion ordinaria numero 229 del Consejo Consultivo de la Comision Nacional de los Derechos Humanos” [Minutes from the ordinary session 229 of the CNDH advisory council], July 10, 2007.  See chapter V of this report for an analysis of why the Mexico City law, which the CNDH challenged, is in accordance with international human rights law.

386 Human Rights Watch interview with Jesus Naime, technical secretary of the CNDH, Mexico City, March 20, 2007. 

387 The OIC also requests external private offices to carry out audits, but these are hired by the CNDH whenever they consider it is necessary.  Pablo Escudero Morales and Jose Galindo Rodriguez, Transparencia y Rendicion de Cuentas en la CNDH, asi como su funcion transversal de control en la administracion publica [Transparency and Accountability in the CNDH, as well as its transversal role controlling the public administration] (Mexico City: CNDH, 2007), pp. 126 - 128.

388 Mexican Constitution, art. 74. See also the Law on Superior Monitoring of the Federation (Ley de Fiscalizacion Superior de la Federacion), the Internal Rules of Procedure of the ASF (Reglamento Interior de la ASF), and the Internal Rules of Procedure of the Evaluation and Control Unit of the Vigilance Commission of the House of Representatives (Reglamento Interior de la Unidad de Evaluacion y Control de la Comision de Vigilancia de la Camara de Diputados).

389 Human Rights Watch interview with Roberto Michel Padilla, director of the Evaluation and Control Unit of the Vigilance Commission, Mexico City, March 22, 2007.

390 The Vigilance Commission only evaluates the ASF’s work after the ASF presents its annual audit before the Commission.  In March 2007 the ASF presented before the Vigilance Commission its audit of the 2005 budget. Ibid.

391 Human Rights Watch interview with Pablo Escudero, oficial mayor, Mexico City, March 21, 2007. Letters from Arturo Gonzalez de Aragon, federal superior auditor, to Jose Luis Soberanes, April 1, 2005, January 25, 2006, and January 25, 2007.

392 The transparency law provided detailed rules and mechanisms to obtain information held by the executive branch, but other major government entities—including the judiciary, Congress, the CNDH, and the Federal Electoral Institute (Instituto Federal Electoral)—had to develop its own.  The CNDH adopted its implementing regulations in April 2003 and they entered into force on June 12, 2003. Rules of the National Human Rights Commission on Transparency and Access to Information (Reglamento de Transparencia y Acceso a la Información de la Comisión Nacional de Derechos Humanos), April 29, 2003, http://www.cndh.org.mx/normat/transp/transp.asp (accessed February 2007).

393 CIDE and IFAI, “Estudio en materia de transparencia de otros sujetos obligados por la Ley Federal de Transparencia y Acceso a la información Publica Gubernamental” [Study on transparency and other obligations under the Federal Law on Transparency and Access to Governmental Public Information], http://www.bibliojuridica.org/libros/libro.htm?l=2446 (accessed May 25, 2007). 

394 Between June 12, 2003 and June 30, 2007, the CNDH received 470 information requests and “concluded” 457 of them.The CNDH holds that it provided information to the petitioners in 309 cases, and that the information was already available online in 57 other cases. According to the CNDH, in the rest of the cases: the petitioner desisted from the request in 58, the requested information was considered privileged or confidential in 48, the CNDH was unable to find the information in five, the petitioners requested the CNDH to modify personal data in four, the petitioners were sent to the competent liaison unit in another government office in four, the CNDH could not find the information in four, it was materially impossible to provide the information in two, and the CNDH has not yet concluded putting together the information requested in one case.  CNDH. Press Release CGCP/093/07; July 16, 2007.

395 CNDH document CNDH/DGAJ/002/2005, January 5, 2005.

396 CNDH document 07336, March 8, 2006. 

397 CNDH document OIC/00063/07, March 16, 2007.

398 CNDH, "Transparencia y Acceso a Informacion” [Transparency and access to information], undated, http://www.cndh.org.mx/normat/transp/transp.htm (accessed May 25, 2007).

399 See section on Applying Broad Confidentiality Norms in chapter VI.

400 CNDH document STCC/0540/05 from file 2005/68-T, May 13, 2005.

401 CNDH document 1697 from file 2004/85-T, October 26, 2004; CNDH document STCC/0233/05 from file 2005/39-T, March 4, 2005.

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. CNDH document 15551 from file 2006/15-T, May 16, 2006, which provided copies of minutes of advisory council meetings held on September 12, 2000, and  August 14, 2001.

The NGO requesting information appealed before the CNDH, arguing that the CNDH’s interpretation of what constitutes personal data was inadequate, but the CNDH rejected the appeal, arguing the deadline to present it had expired. According to the CNDH, the term to present an appeal began before the petitioners actually saw the copies because they knew they would receive documents with some information crossed out.  FUNDAR challenged this decision before the courts, arguing that the term to present the appeal could only begin after they actually saw what information had been provided to them, and won. After losing before the courts, the CNDH must now review the appeal and adopt a decision on the merits. First Circuit Twelfth Collegiate Tribunal in Administrative Matters, “Amparo en Revision RA-423/2006,” December 11, 2006. CNDH document CNDH/DGAJ/0011/2007, January 10, 2007.

402 CNDH document 15551 from file 2006/15-T, May 16, 2006, which provided copies of minutes of advisory council meetings held on September 12, 2000, and  August 14, 2001.

The NGO requesting information appealed before the CNDH, arguing that the CNDH’s interpretation of what constitutes personal data was inadequate, but the CNDH rejected the appeal, arguing the deadline to present it had expired. According to the CNDH, the term to present an appeal began before the petitioners actually saw the copies because they knew they would receive documents with some information crossed out.  FUNDAR challenged this decision before the courts, arguing that the term to present the appeal could only begin after they actually saw what information had been provided to them, and won. After losing before the courts, the CNDH must now review the appeal and adopt a decision on the merits. First Circuit Twelfth Collegiate Tribunal in Administrative Matters, “Amparo en Revision RA-423/2006,” December 11, 2006. CNDH document CNDH/DGAJ/0011/2007, January 10, 2007.

403The transparency law states that information is “confidential” if individuals who provide the information to the government state it should be kept confidential, or if it constitutes “personal data,” which the law defines to include: “all information concerning an individual, identified or identifiable, including their ethnic or racial origin, or related to their physical, moral or emotional characteristics, their personal and family life, residence, telephone number, patrimony, ideology, political opinions, religious or philosophical beliefs or convictions, physical or mental health, sexual preferences, or any other similar preferences that could have an impact on their intimacy.” Transparency law, arts. 3(II), 18 and 19.  Under the transparency law, “personal data” about an individual can only be disclosed if that individual authorizes the disclosure. The law also establishes the rights of individuals to obtain access to their own “personal data” and to require that government entities correct any incorrect data in their possession. See also transparency law, arts. 20 to 26. Information can also be confidential if the person who provided it to a government entity specifically indicated that it should remain so. Transparency law, art. 18.

404 Transparency law, arts. 5 and 14, VI.

405 IFAI, “Lineamientos para la Elaboracion de versionas publicas, por parte de las dependencias y entidades de la Administracion Publica Federal” [Guidelines for the elaboration of public versions by government offices of the executive branch], April 13, 2006, arts. 4 and 5.

406 Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007.

407 IFAI, Decision on case 679/06, August 10, 2005.

408 CNDH, “Curriculum de los titulares de area” [Resumes of heads of offices], undated, http://www.cndh.org.mx/normat/transp/transp.htm (accessed November 20, 2007).  CNDH, “Acuerdos del Consejo Consultivo” [Decisions by the Advisory Council], undated, http://www.cndh.org.mx/normat/acucons/acucons.asp (accessed December 13, 2007).

409 Human Rights Watch interview with Maximo Carvajal, CNDH general director of complaints and orientation, Mexico City, March 16, 2007.

410 FUNDAR, “Resumen ejecutivo” [Executive Summary], February 27, 2007.  This document summarizes the arguments that FUNDAR presented during a hearing before the House of Representative’s Human Rights Commission.

411 CNDH document 16255, May 23, 2006; CNDH document 027568 from file 2006/7-RT, August 28, 2006.

412 Human Rights Watch interview with Maximo Carvajal, CNDH general director of complaints and orientation, Mexico City, March 16, 2007. Human Rights Watch interview with Alejandro Ortega San Vicente, CNDH general director of legal affairs, Mexico City, March 16, 2007.

413 Ley Federal de Derechos (Federal Law of Rights), December 2006, http://www.diputados.gob.mx/LeyesBiblio/doc/107.doc (accessed May 2007), art. 5.

414 Transparency law, art. 27.

415 Email communication with Luis Miguel Cano and Graciela Rodriguez from Fundar, July 5, 2007.  CNDH document 09884 from file 2006/58-T, March 29, 2007.

416 The petitioner was represented by Fundar.  Email communication with Luis Miguel Cano and Graciela Rodriguez from Fundar, July 5, 2007. At this writing, the Supreme Court decision was not yet available online. 

417 Open letter by Aaron Jimenez Paz, head of the transparency liaison unit at the CNDH, Reforma, October 23, 2007.

418 CNDH implementing regulations of the transparency law, arts. 19 to 26. Up to March 15, 2007, the first visitador had decided 23 appeals. Information provided to Human Rights Watch by Maximo Carvajal, CNDH general director of complaints and orientation, March 16, 2007.

The CNDH itself recognizes that “given that [the chief investigator] has the last word when deciding challenges to decisions on this matter, it has been widely debated that this responsibility relies on one person.”  Pablo Escudero Morales and Jose Galindo Rodriguez, Transparencia y Rendicion de Cuentas en la CNDH, asi como su funcion transversal de control en la administracion publica [Transparency and Accountability in the CNDH, as well as its transversal role controlling the public administration] (Mexico City: CNDH, 2007), p. 87.

419 Law that regulates the implementation of Articles 103 and 107 of the Mexican Constitution (Ley de Amparo Reglamentaria de los Artículos 103 y 107 de la Constitución Política de los Estados Unidos Mexicanos), January 10, 1936 (last reform on April 24, 2006), http://www.diputados.gob.mx/LeyesBiblio/doc/20.doc (accessed May 25, 2007).


February 2008

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