III - Mexicos Obligations Under International Law
Mexico is party to several international treaties that impose an obligation to respect, protect, and fulfill the human rights listed in the treaties. Those same treaties also impose on the Mexican state the obligation to deter and prevent violations, and to investigate and remedy violations of those rights.25
Under international law, governments have an obligation to provide victims of human rights abuses with an effective remedyincluding justice, truth, and adequate reparationsafter they suffer a violation. According to the International Covenant on Civil and Political Rights (ICCPR), governments have an obligation to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.26 The ICCPR imposes on states the duty [t]o ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.27 The American Convention on Human Rights (ACHR) states that every individual has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights.28 With regard to the obligation of the States Parties to ensure the free and full exercise of the rights recognized by the convention, the Inter-American Court of Human Rights has held:
This obligation implies the duty of states parties to organize the governmental apparatus and, in general, all the structures through which public power is exercised, so that they are capable of juridically ensuring the free and full enjoyment of human rights. As a consequence of this obligation, the states must prevent, investigate and punish any violation of the rights recognized by the convention and, moreover, if possible attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.29
In addition to the obligation to investigate and prosecute, states have an obligation to provide victims with information about the investigation into the violations.
Victims have a right to know the truth about violations they suffered. The UN General Assembly has endorsed the principle that victims right to remedies includes having access to relevant information concerning human rights violations.30 International principles adopted by the UN Commission on Human Rights state that irrespective of any legal proceedings, victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place.31
International human rights bodies have emphasized the states obligation to provide information to victims, particularly in cases of enforced disappearance. The UN Human Rights Committee has held that the extreme anguish inflicted upon relatives of the disappeared makes them direct victims of the violation as well.32 To the extent the state fails to inform relatives about the fate of the disappeared, it fails to fulfill its basic obligation to bring an end to the violation.33 Similarly, the Inter-American Court has held that states obligation to provide reparation to victims of abuses translates into an obligation to provide family members with information about what has happened to people who have disappeared.34
Given this duty to inform, the duty to investigate violations must be understood as distinct from the duty to prosecute them. According to the Inter-American Court,
The duty to investigate . . . continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.35
In addition to informing the victims and their families, the state has an obligation to inform society in general about human rights abuses, particularly when they are serious violations. This obligation derives partly from its duty to prevent future violations. According to the UN Commission on Human Rights:
Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.36
Similarly, the Inter-American Commission on Human Rights has established that Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.37
The right to seek, receive, and impart information is recognized in the Universal Declaration of Human Rights, the ICCPR, and the ACHR.38 Although to date this has primarily been invoked to prevent states' illegitimate interference or restriction on individuals or the media accessing information that is available, there is growing international recognition that the right also encompasses a positive obligation of states to provide access to official information. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual.39 In the Americas, the Inter-American Court has held that article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices obligation to provide it.40 Moreover, it is internationally recognized that the right of access to official information is crucial to ensure democratic control of public entities and to promote accountability within the government.41
According to the Principles on Freedom of Information Legislation, endorsed by the UN and Inter-American human rights systems, the right of access to information is governed by the principle of maximum disclosure.42 In other words, the government is presumed to be under an obligation to disclose information, a presumption that can be overridden only under circumstances clearly defined by law in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.43
Under international standards, states should ensure that victims can participate in proceedings designed to remedy human rights violations.
International treaties provide victims of human rights abuses with the right to a remedy, and such a remedy must respect and protect their rights and role in the process. Both the Inter-American Court and the European Court of Human Rights (ECHR) have held that victims and their families have a right to be involved in investigations into the events that resulted in a violation of their rights.44 According to the ECHR, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.45 The International Criminal Court (ICC) held in 2006 that victims also have a right to participate in the investigative phase.46
Article 8(1) of the ACHR states that Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. And, according to article 14 of the ICCPR, In the determination of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.
According to international principles adopted by the UN General Assembly:
The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by: (a) Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information; [and by] b) Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system.47
While these obligations to provide a remedy, to inform and publicize, and to ensure victims participation have generally been construed with specific reference to judicial and administrative procedures, they are also applicable to other institutional mechanisms established by states to ensure the protection and promotion of human rights, in particular to institutions charged with investigating or adjudicating on human rights violations.
The Inter-American Court has held that any process, whatsoever [its] nature, that leads to a decision regarding a persons rights and obligations must be carried out respecting due process guarantees established in the American Convention.48 According to the court, these guarantees do not apply merely to judges and judicial courts. Rather, [t]he guarantees established in this provision must be observed during the different procedures in which State entities adopt decisions that determine the rights of the individual, because the State also empowers administrative, collegiate, and individual authorities to adopt decisions that determine rights.49
The CNDH is bound by these obligations. This is true in part because a states obligations under international human rights law are shared by all the institutions and agencies that constitute that state. These principles are especially relevant to the work of the CNDH given its role as the states principal institution dedicated to the promotion and protection of human rights.
The CNDHs goal should be to ensure that Mexico meets its international human rights obligations.50 In order to do that the CNDH needs to ensure that other state institutions meet their obligations to provide remedies, to inform, and to promote victim participation.
Yet, the CNDH itself regularly makes decisions that have immediate and direct impact in determining the rights of the individual. The CNDHs determinations in specific cases may be intended as merely a catalyst, prompting judicial and other state institutions to make their own final, authoritative, and enforceable determinations. Yet, as a practical matter, given that these other institutions routinely fail to act without the CNDHs intervention, the CNDHs determinations themselves are a decisive factor in the multifaceted process through which the Mexican state determines the rights of individuals. Indeed, the victims of abuse who take their cases to the CNDH may reasonably view the institution as the only viable guarantor of their rights.
The applicability of some of these principles to the work of human rights institutions like the CNDH is reflected in the UN Principles relating to the Status of National Institutions, known as the Paris Principles, which set out the basic guidelines recommended by the UN for the establishment and functioning of national human rights institutions. These principles were endorsed by the UN Commission on Human Rights in 1992 and by the UN General Assembly in 1993.51
In recommending methods of operation, the Paris Principles establish that national human rights institutions should publicize their work by stating that they shall address public opinion directly or through any press organ, particularly in order to publicize its opinions and recommendations.52 The principles also state that human rights institutions shall publicize human rights and efforts to combat all forms of discrimination, in particular racial discrimination, by increasing public awareness, especially through information and education and by making use of all press organs.
Furthermore, the CNDH is subject to Mexicos Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental), which incorporates into domestic law international standards regarding the states obligation to inform and publicize. The laws purpose is to guarantee access to information held by all federal entities, including autonomous constitutional agencies such as the CNDH, and specifically states that when interpreting it, public entities must apply the principle of maximum disclosure.53
25 International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, acceded to by Mexico on March 23, 1981; American Convention on Human Rights (ACHR) (Pact of San Jose, Costa Rica), adopted November 22, 1969, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25 (1992), acceded to by Mexico on March 2, 1981; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Convention Against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by Mexico on January 23, 1986, arts. 2(1),11, 16; Inter-American Convention to Prevent and Punish Torture, O.A.S. Treaty Series No. 67, entered into force February 28, 1987, ratified by Mexico on , February 11, 1987, arts. 1, 6; Inter-American Convention on Forced Disappearance of Persons, 33 I.L.M. 1429 (1994), entered into force March 28, 1996,ratified by Mexico on February 28, 2002, art. 1.
26 ICCPR, art. 2(3)(a).
27 ICCPR, art. 2 (3)(b). See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, principle II.3.(d). The obligation to respect, ensure respect for and implement international human rights law and international humanitarian law as provided for under the respective bodies of law, includes, inter alia, the duty to: (d) Provide effective remedies to victims, including reparation, as described below.
28 ACHR, art. 25.
29 Inter-American Court of Human Rights, Velasquez Rodriguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R., (Ser. C) No. 4 (1988), paras. 166, 174, 176: The state has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim adequate compensation. Para. 176: The state is obligated to investigate every situation involving a violation of the rights protected by the convention. If the state apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the state has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction. The same is true when the state allows private persons or groups to act freely and with impunity to the detriment of the rights recognized by the convention.
See also Inter-American Court, Loayza Tamayo Case, Judgment of November 27, 1998, Inter-Am.Ct.H.R., (Ser. C) No. 42 (1998), para. 169. As this Court has held on repeated occasion, Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to simple and prompt recourse, so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered. As this Court has ruled, Article 25 is one of the fundamental pillars not only of the American Convention, but of the very rule of law in a democratic society in the terms of the Convention (Castillo Páez Case, Judgment of November 3, 1997. Series C No. 34, paras. 82 and 83; Suárez Rosero Case, supra 162, para. 65; and Paniagua Morales et al. Case, supra 57, para. 164). That article is closely linked to Article 8(1), which provides that every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, for the determination of his rights, whatever their nature.
30 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, paras. 11 (c) and 24. Para. 11: Remedies for gross violations of international human rights law and serious violations of international humanitarian law include the victims right to the following as provided for under international law: (c) Access to relevant information concerning violations and reparation mechanisms. Para. 24: States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access.
31 Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 3.
32 The U.N. Human Rights Committee articulated this principle in the case Quinteros v. Uruguay, concluding that the mother of a disappeared person was entitled to compensation as a victim for the suffering caused by the failure of the state to provide her with information. Case No. 107/1981. The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7.
33 See Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime", Yale Law Journal, No. 100 (1990); Naomi Roht-Arriaza (comment): "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law", California Law Review, No. 78 (1990); and José Zalaquett, "Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints", State Crimes: Punishment or Pardon (New York: Aspen Institute Justice and Society Program, 1989).
34 The Court has held that parents have a right to obtain reparation for suffering inflicted upon them by the forced disappearance of a child. This obligation is not satisfied with the offer to pay monetary damages. It must also include ending the state of uncertainty and ignorance regarding the fate and whereabouts of the disappeared persons. Inter-American Court, Aloeboetoe Case, Reparations (Article 63.1 American Convention on Human Rights), Judgment of September 10, 1993, para. 76. According to paragraph 76, it can be presumed that the parents have suffered morally as a result of the cruel death of their offspring, for it is essentially human for all persons to feel pain at the torment of their child.
35 Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988, Inter-Am.Ct.H.R., (Ser. C) No. 4 (1988), para. 181.
36 Set of Principles for the Protection and Promotion of Human Rights Through Action to Combat Impunity, October 2, 1997, adopted by the UN Commission on Human Rights, E/CN.4/Sub.2/1997/20/Rev.1, principle 1.
37 Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights, Annual Report of the Inter-American Commission on Human Rights 1985-86, OEA/Ser. L/V./ II.68, Doc. 8, rev. 1, September 26, 1986, ch. V, p. 205.
See also Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of international Human Rights Law and Serious Violations of International Humanitarian Law, March 21, 2006, adopted by the 60th session of the United Nations General Assembly, A/RES/60/147, para. 24. States should develop means of informing the general public and, in particular, victims of gross violations of international human rights law and serious violations of international humanitarian law of the rights and remedies addressed by these Basic Principles and Guidelines and of all available legal, medical, psychological, social, administrative and all other services to which victims may have a right of access
38 Universal Declaration of Human Rights (UDHR), adopted December 10, 1948, G.A. Res. 217A(III), U.N. Doc. A/810 at 71 (1948), art. 19; ICCPR, art. 19(2); ACHR, art. 13(1). UDHR, art. 19: Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers. ICCPR, art. 19 (2): Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice. ACHR, art. 13 (1): Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
39 Joint declaration by Ambeyi Ligabo, U.N. Special Rapporteur on Freedom of Opinion and Expression, Miklos Haraszti, OSCE Representative on Freedom of the Media, and Eduardo Bertoni, OAS Special Rapporteur for Freedom of Expression, December 6, 2004, http://www.cidh.org/Relatoria/showarticle.asp?artID=319&lID=1 (accessed June 14, 2007). The right to access information held by public authorities is a fundamental human right which should be given effect at the national level through comprehensive legislation (for example Freedom of Information Acts) based on the principle of maximum disclosure, establishing a presumption that all information is accessible subject only to a narrow system of exceptions.
Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, http://www.cidh.oas.org/declaration.htm (accessed June 14,2007). Access to information held by the state is a fundamental right of every individual. States have the obligation to guarantee the full exercise of this right. This principle allows only exceptional limitations that must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies.
See also United Nations Economic and Social Council, Commission on Human Rights, Civil and Political Rights, Including the Question of Freedom of Expression: The Right to Freedom of Opinion and Expression. Report of the Special Rapporteur, Ambeyi Ligabo, submitted in accordance with Commission resolution 2003/42, (New York: United Nations, 2003), http://daccessdds.un.org/doc/UNDOC/GEN/G03/171/69/PDF/G0317169.pdf?OpenElement (accessed June 15, 2007), paras. 38 and 39. Para. 38: "In his report E/CN.4/1995/43, the Special Rapporteur stated the basis for, and rationale of, the right to information as The freedom to seek information is guaranteed in ICCPR Article 19 (2). It entails the right to seek information inasmuch as this information is generally accessible (para. 34) and as the right to seek or have access to information is one of the most essential elements of freedom of speech and expression. Freedom will be bereft of all effectiveness if the people have no access to information. Access to information is basic to the democratic way of life. The tendency to withhold information from the people at large is therefore to be strongly checked (para. 35). Para. 39: However, in a more extensive commentary in 1998 (E/CN.4/1998/40), the Special Rapporteur moved beyond understanding the right to information as an element of freedom of expression generally aiming at securing democracy, towards the understanding that: the right to seek and receive information is not simply a converse of the right to freedom of opinion and expression but a freedom on its own (para. 11); the right imposes a positive obligation on States to ensure access to information, in particular, by freedom of information legislation, which establishes a legally enforceable right to official documents for inspection and copying (para. 14); the right to access to information held by the Government must be the rule ratherthan the exception (para. 12)..
40 Inter-American Court of Human Rights, Claude Reyes Case, Judgment of September 19, 2006, Inter-Am.Ct.H.R., Series 151, paras. 76 and 77. Para: 76.In this regard, the Court has established that, according to the protection granted by the American Convention, the right to freedom of thought and expression includes not only the right and freedom to express ones own thoughts, but also the right and freedom to seek, receive and impart information and ideas of all kinds. In the same way as the American Convention, other international human rights instruments, such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, establish a positive right to seek and receive information. Para. 77: In relation to the facts of the instant case, the Court finds that, by expressly stipulating the right to seek and receive information, Article 13 of the Convention protects the right of all individuals to request access to State-held information, with the exceptions permitted by the restrictions established in the Convention. Consequently, this article protects the right of the individual to receive such information and the positive obligation of the State to provide it, so that the individual may have access to such information or receive an answer that includes a justification when, for any reason permitted by the Convention, the State is allowed to restrict access to the information in a specific case. The information should be provided without the need to prove direct interest or personal involvement in order to obtain it, except in cases in which a legitimate restriction is applied. The delivery of information to an individual can, in turn, permit it to circulate in society, so that the latter can become acquainted with it, have access to it, and assess it. In this way, the right to freedom of thought and expression includes the protection of the right of access to State-held information, which also clearly includes the two dimensions, individual and social, of the right to freedom of thought and expression that must be guaranteed simultaneously by the State.
See also Inter-American Commission on Human Rights, Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 281. As stated earlier, the right to freedom of expression includes both the right to disseminate and the right to seek and receive ideas and information. Based on this principle, access to information held by the State is a fundamental right of individuals and States have the obligation to guarantee it.40 In terms of the specific objective of this right, it is understood that individuals have a right to request documentation and information held in public archives or processed by the State, in other words, information considered to be from a public source or official government documentation.
Although a narrower interpretation of the right of access to information has prevailed in Europe, the European Court of Human Rights has interpreted that individuals had the right to obtain information held by the government if such information affected their private life, and therefore interfered with their right to privacy and family life. The European Court has also established that governments may not restrict a person from receiving information that others wish or may be willing to impart. European Court of Human Rights, Leander v. Sweden, Case 10/1985/96/144, February 1987, paras. 48 and 74 European Court of Human Rights, Gaskin v. United Kingdom, Case 2/1988/146/200, July 1989, para. 49. European Court of Human Rights, Guerra and others v. Italy, Case 116/1996/735/932, February 1998, para. 53.
41 In Europe it has been recognized since the early 1980s. See Toby Mendel, Libertad de Información: Derecho Humano protegido internacionalmente [Freedom of Expression: A Human Right Protected Internationally], Derecho Comparado de la Información [Comparative Law on Information], January-June 2003, pp. 13-19, http://www.juridicas.unam.mx/publica/librev/rev/decoin/cont/1/cnt/cnt3.pdf (accessed June 14, 2007).
The Chapultepec Declaration, signed by most heads of state in the hemisphere, and the Lima Principles, endorsed by the OAS and U.N. Special Raporteurs on/for Freedom of Expression, also recognize this consensus. The Chapultepec Declaration determines in its second principle that every person has the right to seek and receive information, and in its third principle that authorities must be compelled by law to make available in a timely and reasonable manner the information generated by the public sector. It was adopted on March 11, 1994, by the Hemisphere Conference on Free Speech held in Mexico City. Experts and thirty-two government representatives, including former Mexican President Carlos Salinas de Gortiari, endorsed it. See http://www.declaraciondechapultepec.org/english/declaration_chapultepec.htm (accessed June 14, 2007). Principle 1 of the Lima Principles establishes access to information as an individual right and as a necessary component for a democratic society, and principle 2 establishes that states must make information available in a timely and complete manner. Principle 1: Every person has the right to be free to search for, receive, have access to and disseminate information without being subject to interference by public authorities prior censorship or to indirect restrictions due to the abuse of official control. There is no obligation on the individual to justify any request for information in order to exercise this right. Access to information is both an individual right and necessary for a democratic society. The right covers both those who actively seek information as well as those who expect to receive information through the media as well as official channels. Principle 2: Every person has the right to ensure accountability in the work of the public administration, the powers of the State in general and of public service companies.. In order to carry out this task effectively, people require access to information held by the authorities. Authorities must be legally required to make the information available to people in a timely and complete manner. It is the government's responsibility to create and maintain public records in a serious and professional manner so that the right to information can be effectively exercised. records should not be arbitrarily destroyed this, in turn, requires a public policy which preserves and develops a corporate memory within the institutions of government. The Lima Principles were adopted in November 2000 by experts on freedom of expression and by the U.N. and OAS Special Rapporteurs on Freedom of Opinion and Expression. The Lima Principles, http://www.cidh.org/Relatoria/showarticle.asp?artID=158&lID=1 (accessed June 14, 2007).
42 Principle 1 of The Publics Right to Know Principles on Freedom of Information Legislation holds that [t]he principle that all information held by public bodies should be subject to disclosure and that this presumption may be overcome only in very limited circumstances. The Principles on Freedom of Information Legislation were adopted in June 1999 by Article XIX, an NGO working on freedom of expression and access to information, in consultation with organizations in different countries, http://www.article19.org/pdfs/standards/righttoknow.pdf (accessed June 14, 2007 ). It was later endorsed by the U.N. and Inter-American systems on human rights. See, for example, IACHR, Report on Terrorism and Human Rights, OAS/Ser.L./V/II 116, Doc. 5 rev. 1 corr. 22, October 2002, para. 284: As a fundamental component of the right to freedom of expression, access to information must be governed by the "principle of maximum disclosure. In other words, the presumption should be that information will be disclosed by the government. Specifically, as noted in the chapter on the right to personal liberty and security, information regarding individuals arrested or detained should be available to family members, counsel and other persons with a legitimate interest in such information. See also IACHR Annual Report 1999, Vol. III, Report of the Office of the Special Rapporteur for Freedom of Expression, chapter II, OEA/Ser.L/V/II.111, Doc. 3 rev., Vol. III ; and United Nations Commission on Human Rights Resolution 1999/36, U.N. Commission on Human Rights, 56th Sess., E/CN.4/2000/63 (January 18, 2000), para. 43.
43 ICCPR, art. 19(3): The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals. ACHR, art. 13(2): The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure: a). respect for the rights or reputations of others; or b). the protection of national security, public order, or public health or morals.
The Declaration of Principles on Freedom of Expression states that the right may only be limited exceptionally and such limitations must be previously established by law in case of a real and imminent danger that threatens national security in democratic societies. Principle 4 of the Declaration of Principles on Freedom of Expression, approved by the IACHR at its 108th regular sessions in October 2000, http://www.cidh.org/Relatoria/showarticle.asp?artID=26&lID=1 (accessed June 14, 2007).
According to The Johannesburg Principles, restrictions must be necessary in a democratic society to protect a legitimate national security interest. Principles 1(d) and 11 of The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, http://www.article19.org/pdfs/standards/joburgprinciples.pdf (accessed June 14, 2007). The Johannesburg Principles were adopted on October 1995 by experts in international law, national security, and human rights; and were later recognized by the U.N. Special Rapporteur on Freedom of Opinion and Expression and the OAS Special Rapporteur for Freedom of Expression. See Report of the Special Rapporteur Mr. Abid Hussain, pursuant to U.N. Commission on Human Rights resolution 1993/45, U. N. Commission on Human Rights, 52nd Sess., E/CN.4/1996/39 (March 22, 1996), para. 154; and IACHR Annual Report 2003, Vol. III, Report of the Special Rapporteur for Freedom of Expression, chapter IV, OEA/Ser.L/V/II.118 Doc. 70 rev. 2.
44 European Court of Human Rights, Adali v. Turkey, no. 38187/97, Judgement of March 31, 2005, available at www.echr.coe.int, para. 232. Finally, the Court is also concerned about the lack of public scrutiny of the investigation carried out by the authorities and of the lack of information provided to the deceased's family.
. The Court emphasises in this connection the importance of involving the families of the deceased or their legal representatives in the investigation and of providing them with information as well as enabling them to present other evidence
45 European Court of Human Rights, Finucane v. The United Kingdom, no. 29178/95, Judgement of July 1, 2003, available at www.echr.coe.int, para. 71. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests .
46 Decision on the Applications for Participation in the Proceedings of VPRS1, VPRS2, VPRS3, VPRS 4, VPRS5 and VPRS6, International Criminal Court, Case No. ICC-01/04, January 17, 2006, para. 45. The Chamber observes that article 68 is entitled Protection of the victims and witnesses and their participation in the proceedings. The Chamber considers that paragraph 1of article 68, which imposes on the Court a general obligation to take appropriate measures to protect the safety, physical and psychological well-being, dignity and privacy of victims and witnesses, refers in particular to the investigation stage. The Chamber also notes the absence of any explicit exclusion of the investigation stage from the scope of application of paragraph 3 of article 68 on the question of victims participation.
47 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, November 29, 1985, adopted by the 96th plenary meeting of the United Nations General Assembly, A/RES/40/34, para. 6.
48 Article 8(1) of the ACHR states that Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.
Inter-American Court of Human Rights, Claude Reyes Case, Judgment of September 19, 2006, Inter-Am.Ct.H.R., Series 151, paras. 116 and 117. Para. 116: Article 8 of the American Convention applies to all the requirements that must be observed by procedural instances, whatsoever their nature, to ensure that the individual may defend himself adequately with regard to any act of the State that may affect his rights. Para. 117: According to the provisions of Article 8(1) of the Convention, when determining the rights and obligations of the individual of a criminal, civil, labor, fiscal or any other nature, due guarantees must be observed that ensure the right to due process in the corresponding procedure. Failure to comply with one of these guarantee results in a violation of this provision of the Convention.
49 Ibid., para. 118.
50 The CNDH was created to monitor the human rights practices of government institutions and promote increased respect for fundamental rights in Mexico. Interior Ministry, Decreto por el que se crea la Comision Nacional de Derechos Humanos como un organo desconcentrado de la Secretaria de Gobernacion [Decree by which the National Commission on Human Rights is created as a de-concentrated agency of the Interior Ministry], June 5, 1990.
51 UN Principles relating to the Status of National Institutions, annex to resolution 1992/54 on National Institutions for the Promotion and Protection of Human Rights, adopted by consensus by the U.N. Commission on Human Rights on March 3, 1992 and endorsed by the UN General Assembly in resolution 48/134, December 20, 1993, http://www.ohchr.org/english/law/parisprinciples.htm (accessed June 13, 2007).
The UN defines a national human rights institution as a government body established under the constitution or by law, whose functions are specifically designed to promote and protect human rights. The UN broadly groups national human rights institutions into three categories: human rights commissions, ombudsmen, and specialized national institutions designed to protect the rights of a particular vulnerable group (such as ethnic minorities, indigenous populations, refugees, women or children). UN Office of the High Commissioner for Human Rights, National Institutions for the Promotion and Protection of Human Rights, Fact Sheet No. 19, undated, http://www.unhchr.ch/html/menu6/2/fs19.htm (accessed June 13, 2007).
The CNDH considers the Paris Principles are applicable to its work. See CNDH, Press Release CGCP/116/05, October 5, 2005. Mexican Presidency, Intervención del doctor Luis Soberanes Fernández, durante el Informe de Actividades de la Comisión Nacional de Derecho Humanos [Intervention by Jose Luis Soberanes Fernandez during the CNDH Annual Report], February 23, 2007, http://www.presidencia.gob.mx/prensa/?contenido=29143 (accessed July 9, 2007). In 2003, the CNDH organized a seminar on Current challenges faced by National Human Rights Institutions 10 years after the endorsement of the Paris Principles. UNHCHR, Americas Region National Institutions Regional Activities Update September 2003, December 9, 2003, http://www.unhchr.ch/html/menu2/5/lacnatins-sep.doc (accessed July 9, 2007).
52 Paris Principles, Methods of operation, principle (c).
53 Federal Law on Transparency and Access to Official Information, 2002, arts. 1 and 6. The principle of maximum disclosure (in international law) and the principle of publicity (in the English version of the transparency law) have the same meaning.