Torture, disappearances, and extrajudicial executions remain widespread in Mexico, despite numerous legal and institutional reforms adduced by successive Mexican governments as evidence of their commitment to protecting human rights. Indeed, reforms have taken place, but they have failed to abate, much less resolve, these serious, seemingly intractable problems. In part, this is because political leaders have been unwilling to ensure that existing human rights-related laws are applied vigorously; authorities are more likely to close ranks and deny that even well-documented abuses ever took place than they are to insist that those responsible be brought to justice.
The problem, however, runs far deeper than official toleration of abuses and impunity. Human rights violations also stem from the justice systems ineffective protection of individual guarantees and its lax approach to human rights abuses. Through willful ignorance of abuses or purposeful fabrication of evidence, prosecutors routinely prosecute victims using evidence obtained through human rights violations, including torture and illegal detention, and judges avail themselves of permissive law and legal precedent to condemn victims while ignoring abuses. Faced with this deeply troubling reality, the Mexican government has opted to treat human rights as an issue to be managed politically, countered with facile statistics, or handled through insufficient reforms or initiatives.
Based on research conducted over two years, this report documents cases of torture, disappearance, and extrajudicial execution in five Mexican states, examining the violent abuses committed by police or soldiers and the actions of political leaders, prosecutors, and judges that followed. It demonstrates how and why the formal system of human rights protections in Mexico fails as victims pass from the hands of police or soldiers to prosecutors and judges. The cases permit an analysis of three interrelated stages in human rights cases: violations of individual guarantees prior to violent abuse, including illegal arrest and detention in excess of legally mandated limits; the violent human rights violations that followed, such as torture and disappearance; and the way prosecutors and judges dealt with the victims, including their use of confessions that followed improper or prolonged detention or torture and the citation by judges of legal precedent allowing them to avoid questioning such evidence. The Mexican government has failed to structure the justice systemunderstood to encompass police, prosecutors, and the courtssuch that the goals of investigating crimes and punishing criminals are consonant with the aims of protecting human rights and promoting the rule of law. This failure is evident whether the victim is a suspected robber, accused drug trafficker, or alleged leftist guerrilla.
The victims of the abuses analyzed in this report suffer not only the physical and psychological trauma linked to their experiences, just as their family members, grieving for an executed or disappeared loved one, endure not only the pain oftheir loss or uncertainty about the victims fate. In the face of such torment, victims and their family members must also abide a justice system more likely to prosecute the victim using evidence obtained through abuse than it is to see the perpetrators sent to prison. Indeed, it was the double affront of torture, disappearance, and extrajudicial execution accompanied by the active or tacit complicity of prosecutors and judges that led Human Rights Watch to begin this project.
The problem is limited neither geographically nor by the type of crime imputed to the victim. To establish the territorial breadth of the justice systems failure, we drew case studies from the poor and predominantly rural south of Oaxaca, the industrialized central region of Morelos and Jalisco, and the northern border states of Baja California and Tamaulipas. To demonstrate the variety of circumstances in which the justice system fails, we scrutinized cases that took place in incidents related to counterinsurgency, drugs, and common crime.
Mexicos geographic diversity and complex political and judicial structures make it impossible to assert that a single government agency is responsible for committing or tolerating the vast array of human rights violations that take placethe evidence points at times to state or federal authorities, police or army officials, prosecutors, medical personnel, or judges. Some abuses are committed in a local context, while others are carried out in the name of the national interest. These complexities, however, should not detract from one fundamental reality: Mexicos federal government is obligated under international law to ensure that all people under its jurisdiction are able to fully exercise their human rights, to be free from torture and other abuses, and to have effective access to judicial remedies when violations take place. When such violations occur, the federal government is responsible. At the same time, the government must ensure that the agents responsible for committing violations are brought to justice. Based on the American Convention on Human Rights and the International Covenant on Civil and Political Rights, both of which Mexico has ratified, this norm applies whether the party responsible for the human rights violation is federal, state, or municipal.
To understand why the government has failed to address adequately Mexicos human rights violations, this report reviews official rhetoric on human rights and recent human rights-related legal and institutional reforms. It also addresses the National Program for the Promotion and Strengthening of Human Rights, which was announced by federal authorities in late December 1998. Largely since the election of President Carlos Salinas de Gortari (1988-1994), Mexicos highest-ranking political leaders have acknowledged that human rights violations take place, and important reforms have been undertaken. Among the positive changes must be counted the creation in 1990 of the National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH), which has often played a veryimportant role in promoting respect for human rights in specific cases and on thematic issues; the passage of the 1991 Federal Law to Prevent and Punish Torture and subsequent constitutional reforms that bolstered the rights of detainees; and electoral reforms prior to the July 1997 elections, which were fundamental in permitting the freest elections ever held in Mexico.
Unfortunately, egregious human rights violations have persisted despite such measures. By documenting abuses, then following the victims through the justice system, this report sheds light on how and why the Mexican governments stated policy of protecting human rights and punishing human rights violators has failed. At the same time, the report includes recommendations for Mexican authorities, foreign governments, and international organizations.
Torture, Disappearances, and Extrajudicial Executions
Human rights violations related to the real or assumed political affiliation of victims, or their purported allegiance to a leftist guerrilla group, tend to receive greater press attention in Mexico and abroad than those committed in other contexts, such as drug trafficking and common crime. Politically motivated cases of human rights violations, however, are by no means the only, or even the most common, cases in which abuses occur in Mexico. Three Tamaulipas state cases investigated in detail by Human Rights Watch, for instance, show the breakdown of the state justice system in cases of common crime, including robbery, murder, and possession of drugs. State authorities not only failed to provide proper oversight in these cases, they justified the actions of their subordinates.
All the force of the prosecutors office was thrown against Juan Lorenzo Rodríguez Osuna, a victim of arbitrary detention and torture who was wrongly prosecuted and found guilty of murder. For two years at this writing, his family has fought for justice, as Rodríguez Osuna has languished in prison.
In Tamaulipas, the Rodríguez Osuna case most clearly demonstrates the inadequacy of the courts handling of human rights issues. The state judge who sentenced Rodríguez Osuna on murder charges went out of her way to exclude evidence that favored him, while admitting incriminating evidence obtained under conditions that violated human rights standards. For instance, she admitted a statement made by an alleged accomplice of Rodríguez Osuna even though the declarant retracted the statement on the grounds that he signed it under psychological torture and without his lawyers present. Several documents supposedly issued by the court were in fact written on the prosecutors stationery, suggesting collusion between the prosecutor and judge.
A federal judge also sentenced Rodríguez Osuna on drug charges based solely on the same retracted statement made by the alleged accomplice, despite the factthat no physical evidence linked him to the drugs he was said to have possessed. A federal appeals court eventually overturned the drug conviction, but the prosecution and trial-level sentence demonstrated nonetheless the failure of the justice system to include adequate human rights criteria in prosecution and sentencing; the prosecution should never have gone forward in the first place.
This reports Tamaulipas state chapter also documents the case of José Alfredo Ponce Reyes, a victim of reckless police violence. Officers opened fire on Ponce Reyes then abandoned him when they believed him to be dead. Shot through the head, Ponce Reyes in fact survived but is confined to a wheelchair and unable to speak. For their part, the officers eventually walked free after providing contradictory statements to investigators. Before filing light charges against the policecausing wounds and abuse of authoritythe prosecutor failed to interview a key witness who contradicted the police version of events.
In the case of Erick Cárdenas, Tamaulipas authorities failed to expend much energy at all investigating his torture and death in police custody. Arrested after an alleged street fight, Cárdenas was found dead in his cell soon after entering custody. Although officials insisted that he had hanged himself, the physical evidence, including signs of torture such as skinned testicles, suggested he was killed in jail. At the time that Human Rights Watch interviewed the victims mother, a year after her son died, investigators had still not taken her testimony, even though she was one of the last people to see Cárdenas before the alleged street fight.
In contrast to Tamaulipas, many abuses in Oaxaca state stem from federal counterinsurgency efforts. Since 1996, the Popular Revolutionary Army (Ejército Popular Revolucionario, EPR) has operated there, carrying out bloody attacks on official targets. In response, civilian and military authorities have acted with a vengeance against suspected members of the armed group. A crackdown characterized by illegal detention, torture, and the extraction of confessions made under duress began in September of that year, focusing on the Loxicha region, where officials believed the EPR was particularly well organized. This report focuses on four torture and wrongful prosecution cases and an extrajudicial execution that took place during those operations. The picture that emerges is one of uncontrolled use of force in fighting the EPR compounded by a lack of concern on the part of officials throughout the justice system.
Victims in Oaxaca recounted to Human Rights Watch how police and soldiers carried out their work. After one day without food, for instance, one victim recalled, They kept asking me to incriminate other people as members of the EPR and to sign blank sheets of paper. I refused. It was there that they started to beat me. They stripped me and attached electrodes to my testicles. Finally, after moretorture and threats against his family, the man signed blank pieces of papers. Rather than release him, however, as authorities promised, he was prosecuted and spent a year in jail before an appeals judge finally released him for lack of evidence. Other victims were prosecuted on evidence consisting of only hearsay and their own forced confessions. Some of the wrongly detained men were eventually released, in one case by a judge who refused to accept patently false statementslike those made in Spanish by a man who spoke only an indigenous language and had no translator.
It is encouraging that, on appeal, these men were released. Nonetheless, the prosecutor and trial-level judge accepted evidence that strongly suggested that it had been fabricated and the declarants tortured. Given that such problems are part of a pattern, not an anomaly, authorities cannot justify tolerating poor judicial processes on the grounds that the appeals process may correct them. The responsibility of the government to ensure that human rights standards are met during criminal investigations starts when the detainee enters custody and continues throughout the process.
To make matters worse in these Oaxaca cases, prosecutors ignored the torture suffered by detainees even when the victims managed to receive medical documentation showing that they had been tortured. Only after four such victims were eventually released did prosecutors begin to investigate their allegations of torture, but they did so because a Mexico City-based human rights group pushed them to and conducted much of the groundwork necessary for a prosecution to move forward. The prosecution has been seriously hampered by the delay of more than a year.
This report also documents the April 1997 extrajudicial execution in Oaxaca of Celerino Jiménez Almaraz. Police, who believed him to be linked to the EPR, claim he was killed in a shoot-out. The evidence, however, indicates he was chased from his home then shot at close range. Oaxaca state prosecutors initially assigned the case to police investigators from the same unit responsible for the killing. Seven months later, and only after sustained protest by a Mexico City human rights group, they switched jurisdiction for the investigation. Nonetheless, the investigation has moved slowly. At this writing, eighteen months have passed since the execution but, despite strong evidence, those responsible for the abuse remain free.
The disappearance cases documented in this report also demonstrate how serious abuses go unquestioned by prosecutors and judges. At the same time, they display the variety of contexts in which human rights violations take place in Mexico. Disappearancessecret, unacknowledged detentions followed by concealment of the victims whereabouts, which might be temporary or prolongedtake place in circumstances related to Mexicos counterinsurgencycampaign, counternarcotics initiatives, and common crime. Disappearance is a human rights violation that requires particularly urgent action by authorities, because it is so frequently accompanied by torture and murder. Quickly establishing the whereabouts of the victim in such cases can make the difference between freedom and prolonged suffering or death.
In the context of counternarcotics, three cases documented below demonstrate the failure of federal and state prosecutors to take seriously the crime of disappearance, or worse, their ready prosecution of the victims without questioning how they came into official custody. In the case of Rogelio and Raúl Verber Campos and Cecilio Beltrán Cavada, from Baja California state, for instance, exactly one year passed between the time that family members filed a complaint about their disappearance with federal prosecutors in January 1997 and the time these relatives were interviewed about the case. State prosecutors who received a similar complaint never followed up at all. The whereabouts of the victims, believed to have been detained by the army, remain unknown.
In the cases of Alejandro Hodoyán and Fausto Soto Miller, the evidence shows that soldiers illegally detained the men separately and held them in unacknowledged detention beginning in September 1996. Both victims later reported weeks of torture. When soldiers were finished pumping Hodoyán and Soto Miller for information on a drug cartel, they turned them over to civilian prosecutors, who did not show the least concern for how they had come to be in military custody or the treatment they received there. Hodoyán was given immunity from prosecution and sent to the United States. U.S. officials, more interested in obtaining information on drug trafficking than in protecting human rights, became complicit in the initial disappearance of Hodoyán, even though the victim was a U.S. citizen. Weeks into his secret military detention, an agent of the U.S. Bureau of Alcohol, Tobacco, and Firearms (ATF) interviewed Hodoyán in custody, recognizing that the man was being held illegally. Hodoyán eventually identified himself as a U.S. citizen, and the ATF agent reported the situation to the U.S. Embassy, but nothing was ever done to aid the victim, despite his familys desperate pleas to U.S. and Mexican officials for help. In fact, the interview with the ATF agent led to greater U.S. interest in officially obtaining information from Hodoyán, and he was eventually transferred from military custody to Mexican prosecutors in Mexico City to U.S. prosecutors in San Diego, California. Hodoyán fled the United States and, once back in Mexico, was again disappeared, this time after being picked up by a group of men that included a person identified by Hodoyáns mother, who witnessed the abduction, as a federal police agent; Hodoyáns whereabouts remain unknown at the time of this writing.
Soto Miller was also turned over to prosecutors, but unlike Hodoyán, he was swiftly prosecuted. Based on what appears to be a fabricated story, officials charged him with drug-related crimes they said he committed while, all indications suggest, he was in fact in unacknowledged military detention. He was sentenced to forty years in prison. The Mexican federal attorney generals office did not respond to written questions submitted by Human Rights Watch on the Hodoyán and Soto Miller cases.
If the Verber Campos-Beltrán Cavada case shows the failure of state and federal prosecutors to investigate disappearances and the Hodoyán and Soto Miller cases demonstrate the active complicity of the federal attorney generals office, the Morelos state cases documented in this report describe a third type of responsibility on the part of the Mexican government: the failure to ensure that state-level justice systems function properly. In Morelos, state police ran a kidnapping ring and benefited from the tolerance of prosecutors, who failed to investigate the kidnappings or related disappearances by the police. In January 1998, federal authorities finally stepped in to prosecute Morelos state officials who ran or covered up the kidnapping ring, which turned out to be led by the states anti-kidnapping police unit. That month, the leader of the anti-kidnapping police was caught trying to dispose of the body of a kidnapping victim who had died unexpectedly, which led to intense national and international press attention. Only after the scandal did authorities act, despite prior accounts of wrongdoing by Morelos state police and prosecutors.
The anatomy of the Morelos police operation is shown in the José Alberto Guadarrama García case, documented below. Morelos anti-kidnapping police disappeared Guadarrama García in March 1997, but prosecutors failed to move against one officer in the unit even after gathering substantial evidence to implicate him. Seven months after Guadarramas abduction, and after intense pressure from Mexican and international human rights groups and the Inter-American Commission on Human Rights, authorities sought and obtained an arrest warrant for the officer. By that time, however, the officer had fled.
In Mexico, a writ of amparoa constitutional challenge to the actions of officialsshould be the mechanism by which courts require authorities to produce disappeared people. In practice, however, amparo is ineffective because judges refuse to provide the writs unless it is clear where the victim is being held, officials fail to seek victims vigorously in cases in which writs have been issued, or the government agents responsible for the disappearance simply deny holding the victims.
Human Rights Deficiencies in Mexicos Justice System
Both in practice and de jure, Mexicos justice system is fundamentally ambiguous about what to do with evidence obtained during or following human rights violations, including illegal arrests and searches, prolonged detention, and torture or other forms of coercion. The problem is not so much that prosecutors and judges interested in working in concert with human rights standards can find no statutory basis for doing so. In fact, the constitution and laws on the books could be read to require the dismissal of evidence obtained through human rights violations and the prosecution of public officials guilty of accepting or admitting such evidence. The problem lies in the fact that the law is often vague on these issues, and courts often rule in favor of accepting impugned evidence.
With respect to evidence obtained through human rights violations, Mexican law is clearest on confessions made under torture. Such statements are invalid in court, although the prohibition on their use is not effectively enforced. Further, standards have not been developed to ensure that other coercive situations, such as arbitrary arrest, invalidate the evidence obtained through the abuse. Arbitrary arrest and detention in excess of the maximum time allowed by law are crimes committed by public servants, but they do not necessarily affect the legal status of the detainee once charged. Similarly, as Mexican courts have ruled, illegal arrest and detention do not necessarily constitute grounds for rejecting statements made during or afterward. As a result, federal and state prosecutors either fail to question police about the circumstances surrounding arrest and detention, or, to facilitate prosecution, they participate in the fabrication of evidence. For their part, judges disregard indications of police or prosecutorial wrongdoing.
Human Rights Watch does not assert that all prosecutors and judges accept human rights violations committed in the process of law-enforcement work and prosecution. This report includes analysis of court decisions rejecting the use of evidence obtained through abuse. Human Rights Watch seeks to underscore, however, that Mexicos laws and the interpretation given them by judges leave plenty of room for judges to ignore human rights abuses if they so desire. As the cases in this report indicate, they choose to do so all too often. The problem is threefold. First, the burden to prove coercion rests with witnesses, victims, and defendants, who often must try to establish what happened to them against the wishes of prosecutors. Given the inherently coercive nature of any detention, courts should insist that procedural safeguardsincluding how and when police are to turn over detainees to prosecutors, the amount of time detainees can remain in custody before being turned over to a judge, and the scrupulous observation of requirements that declarants be accompanied by a legal counsel or a person of confidenceare followed to minimize the chance that coercion will lead to falseconclusions reached through the judicial process. At the same time, judges should insist that if violations of this type are alleged, prosecutors carry out an investigation of the allegations. Violations of these safeguards should lead to the presumption that subsequent statements were coerced; this presumption could then be reversed if prosecutors proved that no coercion took place.
Second, even if coercion is likely or proven to have taken place, many judges go out of their way to accept impugned evidence. Key to their ability to do so is the principle of procedural immediacythe concept in Mexico that the first statement made by a detainee has greater value than later statements. In other Latin American countries, the principle is understood to establish that whatever statements are given before or during trial should be made in the presence of the person who will make the decision as to whether the defendant is innocent or guilty. This is because the judge can evaluate the statements within the controlled context in which they are made. In Mexico, however, the idea behind the principle is that a detainees first official statement, made before a prosecutor, has less chance of being coached than later statements made before prosecutors or judges, even though in Mexico the reality has been that a detainees first statement has a greater chance of being coerced. When a detainee goes before a judge and retracts a statement made to a prosecutor, claiming coercion, judges can cite this principle to avoid determining whether or not the detainee was coerced and without questioning the police and prosecutors who may be acting in bad faith. Judges cited this principle in four cases reviewed in this report, to the extreme in one Tamaulipas case of convicting a man solely on the basis of a retracted statement.
Finally, Mexicos system of public defenders is so notoriously weakto the point that the United Nations (U.N.) special rapporteur on torture reported in 1998 that the public defender cannot be relied on to defendthat the existence of formal procedural guarantees provides few real protections for victims. In an attempt to diminish coercion in the taking of statements by prosecutors, in 1990 Mexico instituted a system of the person of confidencean individual named by the accused to be present when any statement is made. In a legal system in which individual guarantees are routinely ignored by judges, however, this system, like that of the public defenders, fails to provide real safeguards.
Mexico must shift the attitude of police, prosecutors, and judges from an ends-justify-the-means approach to a rule-of-law approach: human rights violations suffered by suspects or other detainees must be deemed unacceptable under any circumstances, and Mexico must develop and apply standards to exclude from the judicial process evidence obtained through abuse. The inadmissability of evidence obtained through human rights violations would exclude unreliable evidence from the judicial process and, at the same time, provide a disincentive to abusiveauthorities who would see cases thrown out of court because of serious human rights violations committed during investigation or prosecution. To help ensure that all statements or confessions used in the judicial process are made freely, Mexico should promote constitutional changes that would give validity only to statements made before a judge.
Any effective government effort to eliminate from the judicial process evidence, statements, and confessions obtained through the violation of human rights must also include the establishment of an effective system of accountability for public servants, including police, prosecutors, and judgesensuring, of course, that the independence of the judiciary is not compromised. At each stage of the process, well-documented, suspected, or reported abuses must be thoroughly investigated, and confirmed complaints should lead to the dismissal of evidence obtained by abusive practices. Mexicos judges should be given explicit responsibility for ensuring that witnesses, suspects, the accused, and the sentenced suffer no human rights violations. Already existing federal and state judicial councilsresponsible for administering courtsmust include human rights protection in their evaluation of judges. Prosecutors who commit or consent to violations should be punished by their superiors, but judges must also reject prosecutorial malfeasance. In turn, prosecutors must hold police responsible for abuses committed in the course of law-enforcement work. Mexican law already penalizes crimes against the administration of justice, which could be interpreted to include the acceptance by prosecutors or judges of evidence obtained through human rights violations. Such standards could form the backbone of aggressive campaigns by the federal attorney general and judicial councils against those who continue to prosecute or sentence without giving due consideration to human rights concerns.
In consonance with the purposes of Mexican and international law, the government must ensure that human rights standards are applied in such a way that two mutually reinforcing goals are met. First, Mexicos justice system must eliminate evidence that is unreliable because it was coerced or fabricated. At the same time, the exclusion of illegally obtained evidence must serve the purpose of deterring police and prosecutorial misconduct, another fundamental policy objective of laws aimed at preventing torture and other abuses.
As pervasive and deeply rooted as Mexicos human rights problems are, it would be wrong to assert that no human rights violation is ever investigated, or that no violator is ever prosecuted, jailed, or even sentenced. To understand how and why the system so routinely fails, therefore, this report also examines cases inwhich some progress on human rights was made. Toward this end, on numerous occasions in 1998 Human Rights Watch requested information from Mexicos Foreign Ministry and Office of the Federal Attorney General (Procuraduría General de la República, PGR) regarding human rights cases they deemed successful. We sought cases in which torture had been documented and the responsible state agent sentenced and jailed for the crime. Neither government agency provided Human Rights Watch with the name, much less the details, of any public official sentenced for torture, although they did provide a total of eight cases that showed some advances in prosecuting torturers. In three of those cases, police officials were in jail awaiting trial. In one, a prison guard who had been charged with torture had fled, and in the rest authorities had yet to be charged or judges had yet to issue arrest warrants.
Human Rights Watch documented three additional cases, not submitted by the government, in which advances of some sort were made. In one of them, four Mexico City public security police officers are serving sentences for an extrajudicial execution. The sentences followed intense lobbying by the victims family and a Mexican human rights group. In another case, a Mexico City judicial police officer was sentenced to two years in prison for failing to stop a subordinate from torturing a detainee, but he was released after paying a fine. The torturer himself was detained and charged with torture but released after an error by the Mexico City prosecutor; federal authorities who could have charged the torturer chose not to. In the third case, Mexico City prosecutors charged a torturer with abuse of authority but amended the charges to reflect torture after Mexico Citys official human rights commission urged them to do so. The officer responsible fled.
Human Rights Watch recognizes the breadth of penalties that can be applied to public servants who violate human rightsfrom administrative actions such as poor performance reviews, suspension from work, or firing to criminal prosecution. Given the severity of the cases documented in this report, however, authorities must vigorously pursue criminal prosecution of those responsible, in addition to any administrative sanctions they may apply. The penalties applied must be commensurate with the human rights crimes committed.
The obstacles to justice in human rights cases are immense in Mexico. In the eleven cases reviewed in which some progress was made, intense press attention, the insistence of victims family members, or pressure from governmental or nongovernmental human rights groups played a key role. In ten of the cases, human rights groups essentially carried out the investigative work that prosecutors failed to do, documenting both the foot-dragging or covering-up that took place and the evidence of abuse that authorities sought to ignore. Even that was often not enough, however. Prosecutors had to be pushed to move cases forward.
The sheer number of abuses in Mexico makes it impossible for human rights organizations to take action on all cases. It is the rare case that receives the time, money, and energy needed to ensure that prosecutors take the incremental steps necessary to see justice done. Foot-dragging is an effective strategy on the part of authorities uninterested in prosecuting human rights violators, both because new cases will undoubtedly come along to distract even the most committed nongovernmental human rights groups and because time diminishes the likelihood that valuable evidence, including the physical markings of torture and the testimony of victims and witnesses, will be available. The CNDH plays an important role in ensuring that otherwise forgotten cases receive attention. However, it handles only a portion of Mexicos human rights cases and does not track the final outcome of the cases on which it works, so no reliable information exists linking its labor to the final disposition of human rights violators.
To overcome these serious obstacles, political leaders must shed their reticence to take action against state agents who commit human rights violations. They must do much more than make pronouncements of concern about human rights in general. The prosecution of human rights violators must be actively and publicly promoted. At the same time, the CNDH and PGR should develop systems to track human rights cases from inception to completion, including the sentences issued by judges, so that reliable statistics and case information are available nationally showing how such cases are handled and why impunity is such a problem in Mexico.
The Mexican Governments Approach to Human Rights
President Ernesto Zedillo has recognized that human rights violations take place in Mexico, but his government, like those of his predecessors, has not been willing to recognize the breadth of the problem or to systematically promote the prosecution of the state agents responsible for abuses. Mexican and international human rights organizations, intergovernmental human rights agencies, and the governments own National Human Rights Commission have documented serious and widespread human rights violations that still receive scant attention from Mexican policy-makers. Individual cases of abuse are more likely to be ignored or denied than resolved, and the government selectively rejects what it deems foreign intervention in its human rights affairs. Nonetheless, the Zedillo administration has also made noteworthy advances, such as finally recognizing the jurisdiction of the Inter-American Court of Human Rights in late 1998.
On December 21, 1998, the federal government announced the National Program for the Promotion and Strengthening of Human Rights. The program was touted as an initiative conceived to achieve eight overall goals, including theconsolidation of a culture of respect for human rights and of the institutional entities responsible for protecting them, the design of mechanisms to identify positive and negative aspects of Mexican human rights policy, and the dissemination of information about human rights. Several of the specific proposals contained in the program would indeed constitute important contributions to the protection and promotion of human rights, provided that authorities take the issues more seriously in the future than they have in the past.
While laudable in its recognition of the need for such a program and its inclusion of an array of government agencies, it suffers inherent weaknesses. For example, it does not describe the governments diagnosis of the human rights violations that take place in Mexico. It provides no reflection on how serious and widespread they are, why they take place, or why prior attempts to resolve them have failed. Without establishing priorities, it refers in only general terms to human rights abuses such as torture and impunity, and calls on public servants to counter them. If the program is to succeed, it must have a clearly defined sense of the problem before attempting to resolve it; given that federal authorities have tended to minimize the seriousness of human rights violations in Mexico, it is not clear that such a sense exists or, if it does, that it accurately reflects the true nature of human rights violations in the country. In this regard, detailed prior consultations with Mexican governmental and nongovernmental human rights organizations would have been valuable but did not take place.
To its credit, the current Mexican administration has allowed unprecedented access to Mexico by U.N. and Organization of American States (OAS) human rights bodies, including the U.N. special rapporteur on torture, who visited Mexico in 1997, and the OASs Inter-American Commission on Human Rights, which carried out an on-site study in 1996; both issued comprehensive reports in 1998 based on their findings. The government also invited the U.N. high commissioner for human rights to visit the country.
Nonetheless, this openness has not been accompanied by a willingness to recognize publicly the scope of the problems identified by these international bodies or to follow their recommendations. The government, for instance, has steadfastly refused to comply with recommendations made by the OAS commission in specific cases in which it found that Mexico had committed human rights violations. At this writing, the government had taken no appreciable steps to implement recommendations contained in the comprehensive reports published by the U.N. special rapporteur or the Inter-American Commission on Human Rights.
The government is often quick to counter human rights criticism with facile statistics. When the U.N. Committee against Torture discussed Mexico in 1997, for example, the Foreign Ministry responded by asserting that there is no impunity fortorturers in Mexico because 69 percent of the CNDHs recommendations on 105 torture cases had been fully implemented and another 30 percent had been partially fulfilled. Citation of CNDH statistics, however, was meaningless regarding what actually happened to people accused of torture, since CNDH recommendations typically call for prosecutors to open an investigation, a recommendation that can be completely fulfilled without significantly moving an investigation forward. In fact, the CNDH does not track what happens to perpetrators once they are charged. Human Rights Watchs review of CNDH torture cases from Oaxaca and Tamaulipasincluded in the respective chapters covering abuses in these statesshows, in fact, that most officials accused of torture by the CNDH never go to jail.
Criticism of the misleading use of CNDH statistics should not be confused with criticism of the CNDH itself. The governments federal commission has often played an important role in documenting abuses in specific cases and on thematic issues. Many cases that never receive public attention are moved forward after commission intervention. At this writing, legislative initiatives are pending in Mexico to increase the independence of the CNDH vis-à-vis the executive, which has always exercised control over its budget and named its president. The CNDH is not as consistent in tackling cases as it could be, and its mandate does not include labor-related or electoral human rights issues. Perhaps its greatest weakness, however, stems from the fact that its recommendations have no binding force on the authorities who receive them and it has not developed an effective way to shame officials into complying. Similarly, Mexicos Congress has not used CNDH recommendations to pressure federal authorities or state governors to improve their human rights records.
If the Mexican government has been ineffective in countering human rights violations, it is not for lack of human rights guarantees in the constitution or legislation expressly protecting against certain abuses, like torture. Indeed, in some areas, guarantees have been strengthened in recent years. Most important were constitutional amendments in 1993 that removed legal value from testimonies taken by judicial police. In an effort to eliminate police abuse of detainees, the reforms established that only statements made before a prosecutor or judge could be used in court. At the same time, the constitutional reforms established that it would be a crime for prosecutors not to ensure that detainees had legal representation during pre-trial proceedings; prior to the change, detainees had a right to request a lawyer in such circumstances, but if they did not expressly ask for one, prosecutors did not have to make sure one was present. The 1991 Federal Law to Prevent and Punish Torture, which is binding for federal public servants, expressly establishes that noconfessions made under torture are accepted in court. These initiatives were positive but insufficient to resolve Mexicos serious human rights problems.
Some constitutional changes, however, have weakened human rights safeguards, and new reforms pending at this writing stand to further deteriorate human rights conditions in Mexico. In 1994 and 1995, for instance, reforms gave prosecutors greater latitude to carry out arrests without court order. In December 1997, President Zedillo sent a package of reforms to Congress designed to fight crime, a growing concern in Mexico. Arguing that criminals are more sophisticated now than in the past, the presidents proposals included measures such as making it easier for prosecutors to press charges against suspects with less evidenceto the point of not requiring proof that a crime had even been committedand allowing police to consider a suspect caught in the act if the suspect was found up to seventy-two hours after the crime was committed. Given that Mexicos procedural safeguards are already ineffective, the changes would merely increase the chances that people were wrongly prosecuted.
In September 1998, President Zedillo announced a National Crusade Against Crime based on the proposed legal reforms; to complement the reforms, the government announced what it called Strategies and Actions of the National Public Security Program, consisting of eight subjects on which federal and state authorities would focus attention in order to fight crime. Training, hiring more law enforcement and court personnel, and establishing centralized data bases were among the steps promised by the government. Funding would be increased to reach these goals. Several of the proposals to fight crime, such as creation of new nationwide data bases and expanding citizen participation in oversight of police, would lend themselves to the protection of human rights.
The public security and human rights programs announced by the federal government may work at cross-purposes, however, when it comes to promoting human rights. The former is premised on a belief that the current state of crime in Mexico demands limiting individual guarantees, a formula likely to lead to greater abuses. Although the human rights program notes that better training of police under the security initiative will lead to greater respect for human rights, this report demonstrates that the government must integrate detailed human rights strategies into its law-enforcement initiatives.
Months after it announced its strategies for fighting crime, the federal government said in November that it would create a new police force, called Federal Preventive Police, designed to prevent crimes of a federal nature and to assist federal judicial police in carrying out investigations. Before moving forward with the creation of a new police force, the government should publicly provide a clear strategy for ensuring that human rights violations committed by these officerswill be investigated and that the offending authorities will be prosecuted. The new police force offers an opportunity to include mechanisms from the outset that will ensure the protection and promotion of human rights.
Mexicos pattern of negligence in ensuring that human rights protections are effective amounts to a policy of permission for those safeguards to fail. Missing from the governments human rights strategy is attention to specific cases of human rights violations and the structural deficiencies that facilitate them. Rather than denounce human rights violators and insist that they be brought to justice, the government points to the formal laws and structures that should protect human rights as a measure of its commitment. Instead of insisting that procedural guarantees be scrupulously followed, the Zedillo administration is pushing to loosen those guarantees. The starting point for the governments strategy for promoting human rights must be recognition that Mexicos formal human rights protections are not effective because laws, practice, and legal precedent conspire against them.
To the Federal Government of Mexico:
Toward the development of a national human rights strategy
1) The federal government should reformulate its National Program for the Promotion and Strengthening of Human Rights to clearly and publicly specify the exact nature and cause of the human rights violations that are the programs subject, describe how serious and widespread they are, and explain why prior attempts to resolve them have failed. In a prior diagnostic phase, as in subsequent initiatives designed to address human rights violations, the government should seek input from governmental and nongovernmental human rights organizations. The program should contain a timetable for achieving its goals and should seek to develop consensus within Mexico regarding the nature of human rights violations and the best way to address them.
2) President Zedillo should match his rhetorical commitment to human rights protection and promotion of the rule of law with an action-oriented policy of tolerating no human rights violations. Prosecutors must be instructed to swiftly investigate and prosecute suspected human rights violators, and their bosses must be held accountable if they do not. Federal funding destined forstate governments should be used as a lever to press state governors to adopt positive human rights measures of their own.
Toward the development of a human rights legislative agenda
3) The government should promote legislation to federalize the crimes of torture, extrajudicial execution, and disappearance such that these crimes would be under federal jurisdiction regardless of the official responsible. The government should also federalize cases of grossly abusive arbitrary detention that lead to violations of the right to life or physical integrity.
4) The government should promote legislation that would give federal authorities responsibility for prosecuting human rights cases of any type if it determines that a systematic or widespread practice of such violations takes place within a state and that state officials routinely fail to prosecute them. As part of such a program, the federal government should take all necessary steps to ensure that the state justice system is strengthened to the point of being able to adequately handle human rights cases, at which time authority for prosecuting human rights cases would be returned to state officials. The government should develop clear and public guidelines for determining when a systematic or widespread practice takes place and when a state justice system would be deemed capable of reassuming jurisdiction over cases of human rights violations.
5) The government, after consulting with governmental and nongovernmental human rights organizations, should develop legislation that would exclude from judicial processes evidence obtained through human rights violations, including torture and disappearance and serious cases of arbitrary or prolonged detention. Given the difficulty victims sometimes have in proving torture or coercion, the legislation should include an express statutory presumption of coercion for statements or confessions obtained following prolonged detention.
6) To minimize the opportunity and rationale for police and prosecutors to coerce detainees, federal authorities should promote reforms requiring the presence of a judge for any declarations to have legal value as evidence.
7) The federal government should evaluate its National Crusade Against Crime with an eye toward ensuring that measures proposed and adopted do not limit the rights of suspects.
8) Legislation should be promoted to criminalize disappearances and to ensure that the statute of limitations for the crimes of torture, disappearance, and extrajudicial execution are substantial and in accordance with the gravity of these crimes.
Toward the development of more effective institutions
9) The PGR should establish a system to closely track the progress and outcome of human rights prosecutions and the performance of prosecutors in such cases. Judges sentences in such cases should be reviewed to discern the ways in which prosecutions succeed or fail, so that more effective prosecutorial strategies can be developed. The work of prosecutors in human rights cases should be part of their official job evaluations.
10) As the government considers the development of data bases related to human rights issues, it should ensure that they are designed to track complaints and the outcome of complaints. Data bases should be designed in consultation with governmental and nongovernmental human rights organizations. The tracking of CNDH recommendations should be in addition to the tracking of complaints within the PGR and other government agencies.
11) The federal government should promote reforms to the Federal Judicial Council that would give the council explicit responsibility for reviewing the work of judges as it relates to human rights. The council should document cases in which judges accept evidence obtained through human rights violations or otherwise fail to ensure that procedural or individual guarantees are observed throughout the legal processes in cases that come before them. Appropriate administrative or criminal punishment should be pursued against judges who do not adequately handle human rights violations in the cases that come before them. Funding should be provided to enable monitoring and follow-up.
12) The government should develop mechanisms to permit strong, independent monitoring of police and detention facilities. It should strengthen the independence of authorities in a position to evaluate the human rights-related actions of law-enforcement personnel, such as medical examiners in police and prison facilities, so that they work independently from prosecutors and police. The government should facilitate the establishment of community-based boards to oversee the work of police and channel complaints to authorities; they should be permitted to monitor police detention centers. Unannounced inspections of detention centers should be permitted.
13) The government should overhaul the public defenders institution to ensure that public defenders are equipped, trained, sufficiently independent, and paid enough to ensure an adequate defense of their clients.
14) The CNDH should closely track the final outcome of the cases it documents, including which government officials ultimately serve prison sentences based on CNDH documentation. The CNDH should also develop strategies for increasing public pressure on government officials who fail to carry out CNDH recommendations.
15) Before moving forward with the creation of a new Federal Preventive Police, the government should publicly announce a clear strategy for ensuring that human rights violations committed by these officers will be investigated and that the offending authorities will be prosecuted. Such a strategy could include mechanisms to incorporate human rights criteria in the job-performance reviews of officers and to develop a data base of human rights complaints and investigations relating to them.
Regarding the international community
16) The Mexican government should comply with the rulings of the Inter-American Commission on Human Rights regarding specific cases, such as that of Gen. Francisco Gallardo, the Ejido Morelia case, and Aguas Blancas. It should announce publicly a detailed plan for complying with recommendations made in the commissions September 1998 report on the human rights situation in Mexico.
17) The Mexican government should follow up the general request that it made for technical assistance from the United Nations Commission on Human Rights with actions designed to develop a specific and far-reaching program to be implemented as soon as possible. The program should include an evaluation of the ways in which Mexicos legal system fails to adequatelyaddress human rights violations, despite formal human rights protections included in the law.
18) The Mexican government should follow up its stated intention to invite the United Nations special rapporteur on extrajudicial, summary, or arbitrary executions with a formal request for a visit as soon as possible.
19) The government should revise visa requirements for human rights monitors who wish to travel to Mexico to ensure that visas are given quickly and without conditions that would hamper their work, such as excessive limitation on the amount of time they can spend in the country. Similarly, monitors should not be required to provide detail about whom they plan to interview and the locations they plan to visit. The requirements should be clear and the subject of legislation, not simply established by internal regulations developed by the Ministry of Government.
To Mexicos Congress:
1) Mexicos Congress should ensure that the CNDH is able to function as an agency independent of the federal government.
2) Given that the federal government provides funding to states for multiple purposes, Congress should play a more active role in monitoring the human rights records of state governments with an eye toward developing transparent mechanisms that could condition federal aid to state governments that engage in a consistent pattern of gross human rights violations.
3) Mexicos Congress should urgently conduct a thorough review of Mexican legal precedents related to human rights, including the principle of procedural immediacy, to identify those that effectively weaken human rights protections by allowing judges to avoid questioning evidence suspected to have been obtained through human rights violations. Legislation should be promoted that would address such doctrines.
4) Congress should enact legislation requiring the presence of a judge for a declaration to have any legal value as evidence.
5) Congress should enact legislation to criminalize disappearances and ensure that the statute of limitations for the crimes of torture,disappearance, and extrajudicial execution are substantial and in accordance with the gravity of these crimes.
6) Congress should pass legislation giving federal and state judicial councils responsibility for guaranteeing that judges properly ensure that procedural and human rights standards are observed throughout the legal processes in cases that come before them. Funding should be provided to ensure that monitoring and follow-up are possible.
To the United States Government:
1) The State Department should more publicly voice concern about human rights violations in Mexico and give the subject greater priority at bilateral meetings with Mexican government officials.
2) U.S. officials should be required to ensure that information they gather from sources in Mexico is obtained in strict accord with human rights standards and that any reasonable concern about human rights violations committed against sources is investigated.
3) The United States government should undertake an exhaustive investigation into the serious mishandling of the disappearance of U.S. citizen Alejandro Hodoyán to determine why U.S. embassy officials and law-enforcement agents took no action to assist him, though they knew that Hodoyán was in secret military custody. Further, the investigation should focus on how and why U.S. government officials later accepted custody of Hodoyán to debrief him about drug trafficking, even though his initial detention so blatantly violated the law. The results of the investigation should be made public, and effective measures should be implemented to prohibit similar cases in the future.
4) United States Agency for International Development (USAID) judicial exchange initiative in Mexico should include detailed analysis of the ways in which laws and legal practice in Mexico perpetuate human rights violations. Training designed to overcome such problems should be included in the program.
To the European Union:
1) Following the recommendation of several committees of the European Parliament, the Council of Ministers should instruct the European Commission to work with the Mexican government to ensure that funds for democracy and human rights projects, under Article 39 of the Agreement on Economic Partnership, Political Coordination, and Cooperation, become available as soon as possible.
2) The Council of Ministers should ensure that when the European Commission and representatives of member states work with the Mexican government on the annual evaluation of the implementation of the agreement, there will be an explicit review of the human rights situation in Mexico and Europe, as recommended by the European Parliaments committees on foreign affairs and cooperation and development.
3) The Council of Ministers should solicit written reports, to be made public, on the human rights situation in Mexico well in advance of the annual review of the agreement, thereby allowing both the council and European Parliament to evaluate the information received within the context of the review. The council should request documentation from all governmental and nongovernmental sources interested in supplying it. The Council of Ministers should hold public hearings at which these sources could explain their material and answer questions, as the European Parliament has already done.
4) The European Parliament should maintain the valuable attention it has paid to human rights in Mexico and, in particular, the ways in which the European Union can promote human rights there. It should continue to hold periodic hearings on human rights in Mexico and maintain Mexican human rights on its agenda for working with other bodies of the European Union.
5) The European Commission should name at least one full-time official in its mission in Mexico City to be responsible for documenting and reporting on the human rights situation in the country.
6) European Union member states represented in Mexico should undertake a coordinated effort to monitor and promote human rights in the country.
To the United Nations and the Organization of American States:
1) U.N. Secretary-General Kofi Annan and High Commissioner for Human Rights Mary Robinson should maintain the important attention they have given to Mexico during 1998. They should continue to reach out to Mexican human rights groups for information on human rights violations in the country.
2) High Commissioner Robinson should take the opportunity offered by the Mexican governments invitation to visit to develop a comprehensive diagnosis of Mexicos human rights problems. She should insist upon being permitted to develop and recommend effective measures to address those problems.
3) The Inter-American Commission on Human Rights should maintain its investigations into individual cases and should use its broad experience on Mexico to promote human rights reforms there. The commission should actively urge the Mexican government to act on the recommendations contained in its September 1998 comprehensive report on human rights in Mexico.