IV - Remedies
The CNDH cannot impose penalties or punish government officials who commit abuses. Instead, it must call on other institutions to do the sanctioning, either through criminal prosecution or administrative procedures, or both. If those institutions refuse to do so, the CNDH will have failed to achieve one of its most fundamental objectives: guaranteeing the abuse victims right to a remedy.
The CNDH should therefore do everything it can to make sure those institutions fulfill their obligation to redress the human rights violations it documents. Yet the CNDH routinely fails to do so. After documenting abuses and issuing recommendations for remedies, CNDH officials effectively abandon many cases. When the corresponding state institutions fail to implement their recommendations, the CNDH often remains silent.
CNDH officials offer all sorts of explanations for their silence and inaction. They claim, for instance, that the CNDHs mandate does not allow it to continue monitoring cases in instances in which government officials reject its recommendations. They claim they cannot monitor implementation of general recommendations they made regarding systemic practices. They claim they cannot continue monitoring cases after they issue special reports that do not contain specific recommendations. And they claim that they cannot monitor the work of public prosecutors, which means that they cannot monitor implementation of one of their most frequent type of recommendation: that abusers be brought to justice.
However, an examination of the CNDHs mandate and Mexican law makes clear that CNDH officials are allowed to continue their workand actively promote implementation of their recommendationsin all these circumstances. Indeed, in some important instances, CNDH officials have in fact done so, with positive results. Yet, too often, by failing to follow up aggressively on its own recommendations, the work that the CNDH does documenting abuses and recommending remedies may have little or no impact on human rights practices in Mexico.
The CNDHs failure to effectively follow-up on its recommendations has been evident in high profile cases that have shaped public perception of human rights in Mexico in recent years.
The CNDH has made important contributions in documenting abuses and highlighting the states obligation to address them by, among other things, providing remedies to the victims. Yet undermining these achievements is the consistent failure of the CNDH to take serious steps to ensure that the relevant state authorities implement its recommendations and that the victims are provided the remedies guaranteed to them by Mexican and international law.
One of the most important documents produced by the CNDH is its recomendacion, released in 2001 after ten years of investigation, documenting hundreds of enforced disappearances committed by state security forces during the dirty war in the 1960s and 1970s.54 The CNDH examined 532 cases and concluded that there was sufficient evidence to establish that at least 275 individuals had been arrested, tortured, and disappeared by state forces. (It did not rule out the possibility that the other 257 individuals had also been disappeared during that time.) The CNDH called on President Vicente Fox to order the federal attorney general to appoint a special prosecutor to investigate and prosecute these crimes.55
In November 2001, following the CNDHs interventionFollow, the government created a special prosecutors office to investigate and prosecute the abuses.56 The executive order establishing this office specifically instructed the Defense Ministry to turn over to the prosecutors office any information relevant to the cases to be investigated. And it instructed the Interior Ministry to release secret government archives with information on these abuses, so that they would be readily available to the special prosecutor, as well as to the public at large.
The creation of the Special Prosecutors Office was an historic initiative for Mexico. It held the promise that, after many years of denial, Mexican authorities would finally investigate the crimes and disappearances committed during the dirty war years, something they had failed to do for over three decades.
Yet during its five year existence, the Special Prosecutors Office produced very limited results.57 It did not obtain a single criminal conviction. Of the 532 cases analyzed by the CNDH, the special prosecutor filed charges in only 16 cases, obtaining indictments in only nine of them.58 And it was able to determine the whereabouts of only six disappeared individuals. (It found that four of these were sent to psychiatric institutions, and two were killed while in detention.)59
The failure of the initiative was entirely foreseeable. Within the first year of its existence it became clear that the Special Prosecutors Office was not receiving the active support it needed from other state institutions. The Fox administration failed to ensure that it possessed the resources, credibility, and powers it needed to succeed. The Mexican military stonewalled investigators and interfered with prosecutions by pressing charges in military courts against military officers for the same crimes the special prosecutor was handling (once the defendants were acquitted in military courts, they would be immune from prosecution in civilian courts).60 And the Federal Investigation Agency (Agencia Federal de Investigacion, AFI) was unable or unwilling to execute a majority of the arrest warrants obtained by the special prosecutor.61
After playing such an instrumental role in bringing about this historic initiative, the CNDH did virtually nothing to help the Special Prosecutors Office overcome these obstacles. Instead, the commission remained largely silent and inactive as the office confronted one setback after another and only spoke up clearly about the offices failures when it was finally closed in 2007 and it was too late to make a difference.62
The reason for this silence, according to the investigator in charge of the case, was that the CNDH does not comment publicly while government authorities are attempting to implement its recommendations. It is a highly questionable policy, but even if it were justifiable, there are plenty of other ways the CNDH could have helped to salvage this initiative. It could have investigated and denounced the military for stonewalling and interfering with investigators. It could have protested strongly when the dirty war cases were turned over to military courts in flagrant violation of the Mexican Constitution. It could have denounced the failure of both the Ministry of Defense (Secretaria de la Defensa Nacional, SEDENA) and the Interior Ministry (Secretaria de Gobernacion, SEGOB) to ensure that key archives turned over by the latter were adequately equipped with indices and catalogues. It could have investigated and denounced the repeated failure of authorities to execute arrest warrants that the special prosecutor had obtained from judges.
Rather than performing any of these critical functions, the CNDH chose instead to watch passively from the sidelines as the enormous potential impact of its 2001 report was squandered.
Crackdown in Guadalajara
Given that the recommendations made by the commission are not binding, government authorities may reject them. It is hardly surprising that they frequently choose to do so. What is surprising is that the CNDH responds to these rejections by closing the cases in question rather than pressing for implementation.
On May 28, 2004, in Guadalajara, after participants in an anti-globalization demonstration clashed with security forces, Jalisco state police and Guadalajara city police rounded up 118 people, some as they sat in public parks or strolled down the street, and some even as they were being treated in a Red Cross clinic. During this time, more than 70 people were arbitrarily detained. The majority of the detainees were then illegally held incommunicado; and 55 were subject to cruel and inhumane treatment, including 19 who were tortured with the aim of coercing them into signing self-incriminating statements and providing information.63
The CNDH issued a report that documented the torture and other abuses committed by the police and called on the then governor of Jalisco, Francisco Ramirez Acuña, to seek administrative and criminal investigations into the abuses.64 But Ramirez Acuña rejected the CNDHs work, declaring that he had no obligation whatsoever to respond.65 Rather than disciplining the police responsible for the abuses, he held a public ceremony honoring them for their participation in the crackdown.66
The CNDHs report also called on the municipal president of Guadalajara to seek administrative and criminal investigations of municipal police involved in the crackdown.67 Unlike the state government, the city government did conduct an investigation, but concluded that the human rights violations documented by the CNDH had been committed by state police and should therefore be investigated by state authorities.68
After the governors rejection of its findings, the CNDH did virtually nothing to ensure that justice was served in the cases it had documented.69 It issued statements regretting the governors position, as well as another endorsing an initiative by federal legislators to investigate the states handling of the case.70 But it could have done much more. For instance, it could have launched a far more vigorous and sustained campaign to denounce the governors refusal to provide victims with a remedy. It could have raised questions about the governors appointment as interior minister by President Felipe Calderon in 2006 (as the Citizens Council of the Jalisco State Human Rights Commission did).71 It could have issued a new report focusing on the problem of impunity in the cases it had already documented. It could have issued recommendations directly to the state prosecutors, rather than rely on the governor to initiate the investigations.
For three years, the CNDH did none of these things. Instead, it deferred to the governor and dropped the case. As recently as August 2007, the CNDH refused petitions by the victims to take up the cases again, arguing that its norms did not allow it to follow up after issuing a special report.72
Only after this refusal was published in local and national newspapers did the CNDH finally change course, telling the victims representative that it would request the new governor of Jalisco to investigate the abuses.73 Thanks, in part, to this long overdue intervention, the new governor of Jalisco announced in December 2007 that he would conduct investigations into the abuses documented by the CNDH.74 It remains to be seen how serious this commitment to accountability will be. At this writing, no one has been brought to justice for the egregious abuses that took place in Guadalajara in 2004.
In May 2006, a clash between police and residents of San Salvador de Atenco left dozens of police officers and rioters injured, and two residents dead from gunshot wounds. After the police attempted to evict flower vendors from the streets, residents attacked them with Molotov cocktails and machetes, and held several officers hostage overnight, until thousands of officers moved in to free the hostages and take control of the town.
Responding to widespread reports of police brutality, the CNDH investigated what had taken place and issued a report the following November, which documented egregious abuses. According to the CNDH, the federal and state police had illegally arrested 145 individuals inside their homes, and subjected 207 detainees to inhuman, cruel, and unusual punishments. At least 11 women and 15 men were tortured, and 26 detained women were victims of sexual abuse. It also found that the federal government, after conducting illegal and irregular proceedings, had expelled five foreigners who reportedly participated in the demonstrations.75
The CNDH called on the federal Ministry of Public Security (Secretaria de Seguridad Publica, SSP) and the governor of the state of Mexico to provide information to competent authorities so they could investigate federal and state police lica, SSP) and the governor of the state of Mexico to provide information to competent authorities so they could investigate federal and state police officers accused of having committed abuses. It also recommended that both institutions conduct training of law enforcement agents on what constitutes appropriate use of force, and provide monetary compensation to those whose physical integrity was violated during the events. Finally, the CNDH requested that the National Institute of Migration (Instituto Nacional de Migracion, INM) carry out administrative investigations of the public officials involved in expelling the five foreigners.76
The CNDH investigators handling the case told Human Right Watch that the CNDH has closely monitored the state governments response, examining its compliance with its obligation to investigate the role of the 1815 members of the State Security Agency (Agencia de Seguridad Estatal) who participated in the confrontation. According to the investigators, the CNDH has requested information on investigations by state authorities every 15 days, and analyzed how they were carried out.77 In its 2006 annual report, it provided a detailed account of the information it had received on what activities the state government had carried out, what the results were, and what remained pending. According to this report, a series of criminal investigations were initiated at the state level, and nine state officers received administrative sanctions (four officials were removed from their posts and five were suspended for 90 days).78
But the CNDH has not followed up on its recommendations to the federal government. The CNDH investigators in charge of this case claim they can do very little follow-up on recommendations that are rejected by government authorities. After the federal minister of public security rejected their recommendations, they say, the CNDH could only make public the fact that its recommendations were rejected.79 And they did so through strongly worded press releases and several statements in the media.80
The CNDH did not, however, publicly challenge the reasons provided by the minister of public security in rejecting the CNDHs recommendations. In a 57-page document, the minister responded to the CNDHs findings and recommendations, arguing that the CNDH did not adequately document the facts, and that there was no evidence that federal police officers had committed abuses.81 Instead of just criticizing the minister of public security for not accepting the recommendations, the CNDH could have responded to those arguments, explaining clearly why its findings were accurate, thus pushing the ministry to deal with the documented abuses. It also could have used the opportunity of the ministers appointment as federal attorney general, the official in charge of carrying out investigations, to reiterate its concerns more prominently.
The CNDH did not make the effort to publicly refute the minister of public securitys case for non-implementation. More than a year after the events, only nine police officers have received limited administrative sanctions and victims of torture have yet to receive compensation.
Murders of Women in Ciudad Juarez
The case of Ciudad Juarez offers one of the most dramatic examples of the CNDHs mixed record in promoting human rights. Unlike the cases described above, Ciudad Juarez represents an instance in which the CNDH has played an active role in following up on its recommendations to state authorities. Unfortunately, it waited five years to do so.
In 1998, the CNDH produced a comprehensive report that examined the murders and disappearances of women in Ciudad Juarez, in the state of Chihuahua. The report documented the serious mismanagement of the cases by local law enforcement authorities. The report found, for example, that authorities had failed to conduct autopsies and interrogate witnesses in some cases. In others, in which there was evidence of sexual abuse, they had failed to examine the possible presence of semen in victims bodies. Authorities had sometimes waited days or even weeks to investigate reported disappearances and murders. In one case, authorities had failed to question a person whose I.D. card was found in the victims shoes.82
The CNDH called on the governor of Chihuahua to see to it that administrative and criminal investigations were opened against specific high-level state officials who had failed to investigate the cases. It also called on the governor to take steps to ensure that the crimes against women were investigated in a more serious fashion and to improve the quality of public security and administration of justice generally within the state. The governor accepted the latter recommendations but rejected the call to investigate the authorities responsible for the states mishandling of the cases.83
For the next five years, the CNDH did only minimal follow-up on these recommendations, and only on the ones that had been accepted. The follow-up consisted of periodically requesting information from state and municipal government officials and briefly mentioning in annual reports that the authorities had failed to provide it.84 The CNDH also communicated with relatives of the victims to assess state implementation, but it did not use the information it gathered from them to make official public statements that would push state authorities to act.85 Most significantly, the CNDH did not monitor the state governments actions to see whether it was holding high level state officials, including the state prosecutor, accountable for failing to address these cases seriously.86
Given the lack of follow-up, it is hardly surprising that the CNDHs 1998 report had little or no impact on the problem of violence against women. Over the next five years, the murders and disappearances continued unabated. An additional 187 women were murdered87and 28 disappeared.88
Beginning in 2001, the ongoing violence and impunity began to draw international attention, thanks in large part to the efforts of local NGOs. A wide range of international monitors visited Chihuahua and issued reports on the situation. These included the UN Special Rapporteur on the Independence of Judges and Lawyers, the United Nations Committee Against Torture, the Special Rapporteur on the Rights of Women of the Inter-American Commission on Human Rights, two experts from the Committee Against the Elimination of Discrimination Against Women, and the United Nations Office on Drugs and Crime. Several international nongovernmental organizations, including the Washington Office on Latin America and Amnesty International, also conducted research and advocacy that reinforced the efforts of local NGOs to end impunity for these crimes.
It was only after years of mounting pressure at the national and international level that the CNDH decided to take action. In 2003, it issued another report on the situation in Ciudad Juarez in which it concluded that the state had failed to implement some of its key recommendations from five years earlier.89 During this time, it found, the irregularities and abuses by police and prosecutors had not only continued, but in fact had worsened. In many cases, the authorities had not conducted investigations of individuals notwithstanding the existence of strong evidence against them. Prosecutors mistakenly closed cases before completing even the most basic tasks, such as identifying the victim.
Most disturbingly, law enforcement officials had turned to coerced confessions. The CNDH found eighty-nine instances in which the suspects in these crimes had spontaneously confessed before the public prosecutor, only to recant the confession before a judge, claiming that they had been subjected to torture. The CNDH concluded that the use of physical or psychological violence to obtain confessions appeared to be a regular practice within the state prosecutors office.90
The 2003 report was an example of precisely the sort of follow-up that the CNDH should have been doing all along. It clearly and thoroughly documented the states failure to act on its previous recommendations, and put forward recommendations on ways to improve implementation. For example, the new report called on the federal government to appoint a special prosecutor who could work with state authorities in advancing the criminal investigations of the murders and disappearances. It called on the states Special Prosecutors Office for the Investigation of Homicides of Women in Juarez (Fiscalia Especial para la Investigacion de Homicidios de Mujeres en el Municipio de Juarez, Chihuahua) to, among other things, investigate these cases correctly. And it reiterated its recommendation that state officials who had grossly mishandled these cases be disciplined and even criminally prosecuted.91
Unlike what took place in the aftermath of its 1998 report, following the release of its 2003 report the CNDH engaged in serious and aggressive follow-up. The CNDHs 2003 annual report held that neither the state government nor the municipality of Juarez had adequately implemented its 1998 recommendations.92 The CNDH established an office in Ciudad Juarez charged with monitoring implementation (as well as addressing human rights issues related to migrants at the border.) It issued over 40 press releases about the situation in Ciudad Juarez and raised its concerns with representatives from the United Nations, the Inter-American Court of Human Rights, the European Parliament, and the European Union.93 In 2004, it published a follow-up report on the governments implementation of its recommendations, followed by another report, released in 2005 at the behest of the Mexican Congress, assessing the situation.94
The CNDHs interventions played an important role, along with the also critically important efforts of the National Commission to Prevent and Eradicate Violence Against Women in Ciudad Juarez (Comision para Prevenir y Erradicar la Violencia contra las Mujeres en Ciudad Juarez) and local NGOs, in generating political pressure at the state level to address the ongoing problems. In October 2004, the new governor of Chihuahua appointed a new attorney general, Patricia Gonzalez, who set about changing how the state handled these cases, increasing the emphasis on investigative techniques and strengthening the internal offices that take action against officers who commit abuses.95 In 2006 the Chihuahua legislature passed a comprehensive justice reform that provided Gonzalez with tools to carry out her work.96 Since then, more than 170 cases of violence against women have been successfully prosecuted. An additional 66 cases are pending before the courts, while 16 have been sent to the juvenile justice system. More than 130 other cases are under investigation.97
The National Commission to Prevent and Eradicate Violence Against Women in Ciudad Juarez also made very important contributions to this progress by, among other things, supporting the work carried out by the Argentine Forensic Anthropology Team (Equipo Argentino de Antropologia Forense, EAAF).98 The EAAF, which has been working under the auspices of the state prosecutors office in Ciudad Juarez to obtain samples from bodies and family members in order to match their DNA results, has obtained DNA samples from at least 80 bodies and 193 family members, and has succeeded in identifying 27bodies.99
The case of Juarez illustrates the enormously constructive role that the CNDH can play after it documents abusive practices. Unfortunately, it took the institution five years to assume this constructive role. For the victims and their families, the cost of that delay is incalculable.
The four cases above are not isolated examples. Rather, they reflect broader CNDH failure to push for implementation of its recommendations. CNDH officials justify this failure by citing supposed limitations on the institutions mandate. However, a close examination of the governing legal and regulatory framework and actual practices of the CNDH reveals that the limitations that these officials cite are often self-imposed.
The law governing the CNDH explicitly states that the CNDHs role is to follow up and to ensure that the recomendacion is totally complied with and that this follow-up function includes cases in which the recomendacion [is] not accepted.100 The CNDH can close cases only after the follow-up ends.101 CNDH officials, however, insist that they can only follow up to ensure implementation of their recommendations if the government authorities accept them.102 Consequently, when recommendations are rejected, the CNDH often stops working on them, thereby abandoning the cases and leaving the victims without access to remedies to which they are entitled.
In the case of the Ciudad Juarez murders, for example, the CNDH chose not to monitor the states handling of charges of serious negligence on the part of high-level officials after the state government rejected the relevant recommendations in 1998.103 Similarly, in the case of police brutality in Atenco, the CNDH did not continue to monitor the federal governments handling of the abuse allegations after the federal minister rejected its recommendations.104
The CNDHs passivity in the Ciudad Juarez and Atenco cases has been repeated in many other instances. Of the 354 recomendaciones that the CNDH issued on specific cases between 2000 and 2006, 70 (or 20 percent) were rejected by the government authorities who received them.105 According to its own self-limiting interpretation of its mandate, the CNDH had no choice but to abandon its work on these cases, and it appears to have done so in many such cases.
In July 2004, for example, M.A.C.C., a minor, was allegedly detained, beaten, and raped by police officers in Ciudad del Carmen, state of Campeche. The CNDH concluded that M.A.C.C. had been beaten and that the rape allegation warranted further investigation.106 The CNDH recommended criminal and administrative investigations. On December 1, 2005, the president of the municipality of Carmen notified the CNDH that it had rejected the recommendations.107 The CNDH closed the case on December 21, 2005.108
In 2003 the CNDH found that officers from the Military Prosecutors Office (Procuraduria General de Justicia Militar, PGJM) and from the Military Judicial Police had arbitrarily detained hundreds of soldiers from the armys 65th Infantry Battalion(based in Guamuchil, Sinaloa), holding them incommunicado for four or five days and subjecting them to physical and psychological abuse, including torture. The CNDH recommended that the PGJM conduct both criminal and administrative investigations into the officers responsible for these abuses, establish instruction in human rights law, and protect the confidentiality of military personnel who had collaborated with its investigation.109 The PGJM rejected the recommendations on May 15, 2003.110 The CNDH closed the case on May 20, 2003.111
In 2004 the CNDH documented the case of Daniel Torres, who had reported being beaten and tortured by police officers who subjected him to electric shocks in an effort to get him to confess to a murder. The CNDH concluded that the police had arbitrarily detained Torres and that there was extensive evidence to support the claim of torture.112 The CNDH recommended that the state government initiate criminal and administrative investigations of the police officers involved in the detention. But when the governor failed to respond to the recomendacion within 15 days, the CNDH concluded that he had rejected it.113 According to the CNDHs interpretation of its mandate, there would be no follow-up on the case. Indeed, there is no mention of it in the follow-up section of the CNDH annual reports of 2005 and 2006.
In 2004 the CNDH documented the case of Juan Antonio Ortiz Rivera, who had been arbitrarily detained and beaten by the Municipal Police of Chihuahua City.114 The CNDH recommended that administrative proceedings be initiated against the police.115 But when the municipal government did not respond to the recomendacion, the CNDH concluded that it had been rejected.116 The CNDH did not mention whether or not it would follow-up on its recommendations, but since the case is not mentioned in the follow-up sections of the CNDH reports of 2005 and 2006, it is reasonable to conclude that it did not.
In 2004 the CNDH documented the case ofJaime Arias Sealauder, concluding that he had been subject to physical abuse by judicial police in Tijuana. The CNDH analyzed a medical report by the Attorney Generals Office (Procuraduria General de la Republica, PGR), which documented hemorrhagic spots in his stomach area, side and back, as well as a cut on his upper lip, and determined that the injuries were inflicted, probably with the intention of harming him, while he was in detention.117 The CNDH recommended that the governor of Baja California give instructions to initiate criminal and administrative investigations. On September 22, 2004, the state rejected its recommendations.118 On November 12, 2004, the CNDH closed the case.119
In January 2004, 15-year old Julio Cesar Vazquez Mezafell from the roof of his home in Tlaxcala State. During the course of the next 18 hours, Julio was transferred to different hospitals six times, and died on his way to the last one.120 The CNDH concluded that the Health Ministry of Tlaxcala, the governor of Tlaxcala, one of the doctors who refused to treat Julio, and the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) violated Julios rights to health and to appropriate medical care.121 The CNDH recommended that the IMSS conduct an administrative investigation into the case and provide monetary reparations to Julios parents. It also recommended that the governor of Tlaxcala adopt measures to improve health services in the state. The general director of the IMSS rejected the recommendations on August 18, 2004. The governor accepted only some of the recommendations. The CNDH closed the case entirely, considering that a partial acceptance was not sufficient to follow up after it issued a recomendacion.122
Even when its recommendations are accepted, the CNDH often fails to ensure that they are actually implemented. This practice is particularly pronounced in the case of recommendations involving criminal or administrative investigations. (Approximately half of the recomendaciones the CNDH issued between 2000 and 2006 called for criminal or administrative investigations, or both).
In the case of criminal investigations, CNDH officials argue that they do not have the legal authority to scrutinize the work of public prosecutors. They cannot monitor the progress of criminal investigations,123 nor evaluate their quality.124 The reason, they claim, is that Mexican law only allows them to request that investigations be carried out, but it is entirely up to the prosecutors themselves to determine how this is done.
The law and regulations governing the CNDH do not limit follow-up on cases in this way. On the contrary, they explicitly grant the CNDH the authority to monitor criminal and administrative investigations of the human rights abuses it has documented.125 Moreover, successive CNDH presidents have recognized that the institution has this power.126 And in fact, the CNDH has monitored and publicly criticized the work of prosecutors on multiple occasions.127
The negative impact of the CNDHs misreading of its mandate was evident in its handling of the dirty war cases. While its report on the dirty war crimes led to the creation of a special prosecutors office, the CNDH did virtually nothing to address the shortcomings of the office and the obstacles put in its way by other government institutions.
The CNDHs passivity was also evident in another high-profile case, involving Rodolfo Montiel and Teodoro Cabrera,two peasant leaders involved in environmental activism in the mountains of Guerrero state. Montiel and Cabrera were detained by soldiers in 1999 and held illegally for two days before being turned over to civilian authorities. The two men reported that they had been tortured during their detention. The CNDH issued a recomendacion in which it concluded that the two had been subjected to arbitrary detention and tortured.128 It called on military prosecutors to initiate a criminal investigation.129 The military prosecutors office examined the case and decided not to press charges, arguing that there was no evidence of torture.130 Yet even if there was insufficient evidence to prove torture, there was very clear evidence of arbitrary detention.131 The CNDH did not denounce the military prosecutors mishandling of the allegations, choosing, rather, to end its follow up and close the case.132
Another way the CNDH limits its follow-up function is by issuing recommendations that only call for investigations to be initiated.133 The commission considers that its involvement in these cases should cease if an investigation is initiated, irrespective of whether the investigation is carried out in a satisfactory manner and completed, and regardless of whether or not the victims ever obtain a remedy.
In 2000, for example, the CNDH documented that PGR officials had used excessive force to detain Guadalupe Carrasco Licea, causing bruises and cuts on her neck, arms, and chest. The CNDH recommended the federal attorney general order an investigation to find out who had carried out this detention, initiate administrative investigations against those responsible, and inform the competent prosecutors so they would carry out the corresponding criminal investigation.134 The CNDH concluded that the PGR had totally complied with the CNDH recommendations after it informed, two months later, that it had adopted measures to implement them and that its internal control office had initiated an investigation of the officials.135
In 2002 the CNDH documented that a nurse from the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) placed an intra-uterine contraceptive in Hermelinda del Valle Ojeda, an indigenous woman from Oaxaca, without her consent. Ojeda carried this device in her body unknowingly for two years, causing risks to her health.136 The CNDH held the IMSS had violated her sexual and reproductive rights and her right to health. It recommended that the IMSS provide information to its internal control office so it could initiate an administrative investigation and, if the results of that investigation justified it, inform the public prosecutors office so that it could open a criminal investigation.137 The CNDH decided that the IMSS had totally complied with its recommendations when it initiated the administrative proceedings.138
In 2003 the CNDH documented that Laura Guzman Soria, who was pregnant, died due to medical malpractice in a public hospital in Baja California. The CNDH concluded that the doctors who treated her violated her rights to life and health, and recommended that the IMSS inform the internal control office that it should initiate and carry out an administrative investigation of the doctors and hospital directors, and provide monetary reparations to the victims family.139 The CNDH determined that the IMSS had totally complied with its recommendations when the IMSS sent information on the case to its internal control office to initiate an administrative investigation.140 (On the monetary reparations question, the CNDH held it considered its recommendation had been implemented, since the technical council of the IMSS had signed an agreement saying it would pay reparations.)
In 2000 the CNDH found that municipal police in Veracruz had used excessive force when arresting Jose Leonardo Rosas Hernandez. It recommended that the municipality of Cordoba propose that the Cabildo (local legislature) sign an agreement to initiate an administrative investigation. It also stated that, independently of the previous recommendation, the municipal government could inform the relevant prosecutors so that they could, in turn, carry out criminal investigations.141 The following year, the CNDH stated that the municipality had totally complied with its recommendations simply based on the fact that the local legislature had agreed to request its internal control office to carry out an administrative investigation, as well as to inform prosecutors of the case so they could initiate a criminal investigation.142
Special Reports and General Recommendations
The CNDH regularly issues two other types of reports that also warrant follow-up: special reports (informes especiales) and general recommendations (recomendaciones generales.) According to its rules of procedure, the CNDH issues special reports on human rights problems when the nature of the case requires it, given its importance or seriousness.143 General recommendations examine the laws, policies, and practices that lead to human rights violations.144 In both cases, CNDH officials maintain they can abandon their work after publishing their findings.
In the case of special reports, some CNDH officials claim that the institution does not have legal authority to conduct follow-up on its findings and must therefore limit itself to receiving information from government authorities.145 Yet the law regulating the CNDH contemplates such follow up. Its rules of procedure state that the CNDH shall not be obliged to follow up on special reports,146 strongly implying that the CNDH has discretion and may do so when it wishes (if the drafters of the law had wanted to prohibit such follow up, they can and would have stated the prohibition directly, rather than using the discretionary language quoted above). Moreover, some CNDH officials do consider follow-up appropriate for special reports and have done so in some cases.147 The CNDH, for example, actively followed up on its 2003 special report on Ciudad Juarez, and its special report on Guadalajara (albeit after several years of neglecting to do so).
In the case of general recommendations, one CNDH official told Human Rights Watch that the CNDH has no legal obligation to conduct follow-up.148 Consequently, CNDH officials reason, there is no need to do anything more than receive information on these cases.149 Indeed, all the general recommendations that the CNDH has issued to date have ended with a paragraph informing the government authority that it has no obligation to accept the recommendation and requesting that it send evidence of having implemented the recommendation within a 30-day period. Yet the law governing the CNDH envisions a far more active role, which is not merely to wait for the government to send information. Instead, the CNDH rules of procedure specifically provide for the verification of compliance with general recommendations.150
When pressed on why they did not more actively follow up on their reports and recomendaciones, CNDH officials cited a principle of Mexican administrative law, known as the legality principle, which holds that public officials can only do what the law expressly authorizes them to do.151 These officials maintain that, according to this principle, any advocacy work they might carry out that exceeds the explicit mandate of the CNDH would constitute an abuse of authority and expose them to administrative sanction.152
Yet, as we discussed above, the CNDH mandate allows these officials to perform the very functions they claim exceed the institutions mandate, including monitoring criminal investigations and following up on rejected recomendaciones, special reports, and general recommendations. As also noted above, in some cases CNDH officials have performed these functions, and have done so with positive results.
Moreover, even if the CNDH mandate were in fact limited, as the officials claim, these limitations would be largely self-imposed, since the CNDH is responsible for writing its own internal regulations and has the power to request Congress to modify its legal mandate.153 In other words, the CNDH says it cannot do its job because its hands are tied, yet it makes no effort to have them untied.
The purpose of the legality principle is to protect individuals from arbitrary government acts. The principle derives from a clause of the Mexican Constitution establishing that [n]o one can be bothered in [his or her] person, family, home, papers or possessions, except as a consequence of a written decision by a competent authority, which must be based on and justified by the legal cause of the proceedings.154 According to Mexican courts, it is intended to apply to all government acts that are directed at adversely affecting an individual.155 Its main practical significance is that it grants individuals the right to know in detail all the circumstances that lead to a government decision, so that he or she has the opportunity to challenge its merits and adequately defend him or herself.156
By invoking this principle to avoid following up on its own recommendations, the CNDH turns the principle on its head, employing it to protect state officials who abuse their authority rather than to protect individuals.
54 CNDH, Recomendacion 26/2001, November 27, 2001. The CNDH also issued a special report documenting these abuses. CNDH, Informe Especial Sobre las Quejas en Materia de Desapariciones Forzadas Ocurridas en la Decada de los 70 y Principios de los 80 [Special report on the Complaints Related to Forced Disappearances that took place in the 70s and early 80s], 2001.
Sergio Aguayo Quesada, Oculta CNDH datos sobre desaparecidos [The CNDH hides information on disappearances], Reforma, June 25, 2001.
Human Rights Watch interview with Humberto Zazueta, Mexico City, March 7, 2007. Zazueta filed a claim before the CNDH, stating that he had been detained and tortured in military installations between April 9, 1979 and December 15, 1979. Zazueta told Human Rights Watch that he provided information and his testimony to the CNDH soon after it was created, but nothing happened until the CNDH published its 2001 report.
55 The CNDH also recommended that the president adopt an ethical and political commitment to promoting human rights during his presidency and use all legal means to ensure that events like those documented by the CNDH do not ever happen again; provide reparations to family members of those whose disappearance was proven by the CNDH; and adopt measures to ensure that the Investigations and National Security Center (Centro de Investigacion y Seguridad Nacional) that replaced the Federal Security Directorate (Direccion Federal de Seguridad) carry out its work respecting human rights. CNDH, Recomendacion 26/2001, November 27, 2001.
56 Order of the President of the Republic, Acuerdo por el que se disponen diversas medidas para la procuracion de justicia por delitos cometidos contra personas vinculadas con movimientos sociales y políticos del pasado [Agreement by which various measures to promote justice for crimes commited against people related to social and political movements of the past], November 27, 2001. The official name of the office was Special Prosecutors Office for social and political movements of the past (Fiscalia Especial para movimientos sociales y politicos del pasado, FEMOSPP).
57 The federal attorney general closed the special prosecutors office in November 2006. President Felipe Calderon officially closed it in March 2007 when he published the federal attorney generals decision in the Official Gazette. Attorney General Office, Acuerdo 317/2006 Por el que se disponen diversas medidas para la procuración de justicia por delitos cometidos contra personas vinculadas con movimientos sociales y politicos del pasado [Agreeement 317/2006 by which various measures are adopted to provide justice for crimes committed against people related to social and political movements of the past ], November 30, 2006.
58 Human Rights Watch telephone interview with Juan Carlos Sanchez Ponton, prosecutor in charge of forced disappearance cases in the Special Prosecutors Office, Mexico City, October 5, 2006.
59 Human Rights Watch interview with Mario Ramirez Salas, director of attention and liaison with citizens of the Special Prosecutors Office, Mexico City, January 18, 2006.
60 Moreover, while the Defense Ministry has declassified important documents from the dirty war era, it has done virtually nothing to help investigators understand or locate evidence within the released files, or obtain information that appears to be absent from those files.
61 See Human Rights Watch, Lost in Transition (New York: Human Rights Watch, 2006), http://hrw.org/reports/2006/mexico0506/mexico0506web.pdf, p. 71.
62 CNDH staff told Human Rights Watch that after issuing the recomendacion, their follow up was limited to requesting information from government authorities, and contrasting it with information obtained from the victims. Human Rights Watch interview with Raul Plascencia Villanueva, first visitador, and staff from the first visitaduria, Mexico City, March 21, 2007.
Prior to the offices closing, the CNDH published the exact same three paragraphs in each years annual report, which basically said that the government had partially implemented the CNDHs recommendations because it was investigating but had not provided evidence that it had provided reparations to family members and had not reported on human rights measures adopted. In its 2002 annual report, the CNDH noted that recomendacion 26/01 was partially fulfilled because the Special Prosecutors Office was still conducting preliminary investigations (averiguaciones previas). In the 2003, 2004, 2005, and 2006 reports, the CNDH includes verbatim the exact same three paragraphs that appear in the 2002 report. CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2002 [Report of Activities between January 1 and December 31, 2002], 2003, http://www.cndh.org.mx/lacndh/informes/anuales/02activ.pdf (accessed December 6, 2007), pp. 735 736. CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007), annex, pp. 679 680. CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), pp. 772-73; CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2005 [Report of Activities between January 1 to December 31, 2005], 2006, http://www.cndh.org.mx/lacndh/informes/espec/cdinf2005/ifact2005.htm (accessed December 6, 2007), pp. annex 6.1; CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2006 [Report of Activities between January 1 to December 31, 2006], 2007, http://www.cndh.org.mx/CDINFORME2006iMAGEN/INFORME_DE_ACTIVIDADES_2006_1.htm (accessed December 6, 2007), annex 6.1.
The CNDH had only issued a few isolated press releases that talked about the special prosecutors work, and made occasional comments in the Mexican press regarding impunity of these crimes. CNDH, Press Release 131/03, October 9, 2003; CNDH, Press Release 100/04, July 5, 2004; CNDH, Press Release 104/04, July 12, 2004. For example, Redaccion, Persiste la tortura en Mexico [Torture persists in Mexico], Reforma, June 14, 2004; Claudia Guerrero, Sonia del Valle and Benito Jimenez, Miscelanea [Miscellaneous], Reforma, July 14, 2004; Fernando Paniagua, Ve CNDH riesgo de reves judicial [CNDH sees risk of judicial setback], Reforma, July 16, 2004; Liliana Alcantara, Informe de la CNDH: El foxismo descuido los derechos humanos [CNDH report: The Fox administration left human rights aside], El Universal, November 6, 2006.
63 CNDH, Informe Especial de la Comision Nacional de los Derechos Humanos Relativo a los Hechos de Violencia Suscitados en la Ciudad de Guadalajara, Jalisco, el 28 de Mayo del 2004, con Motivo de la Celebración de la III Cumbre de América Latina, el Caribe y la Unión Europea [Special Report by the National Human Rights Commission Regarding the Violence that occurred in the city of Guadalajara, Jalisco, on May 28, 2004, during the celebration of the 3rd Summit for Latin America, the Carribbean, and the European Union], 2004, http://www.cndh.org.mx/lacndh/informes/informes.htm (accessed March 10, 2007), section VI.
64 The CNDH report also asks the governor of Jalisco to order that guidelines be adopted and appropriate capacity-building courses be carried out to improve respect for human rights by state law enforcement agents. It also requested the governor to order members of his government to ensure that state and national human rights organizations can carry out their work. Ibid., section VII.
65 Ulises Zamarroni, Ramirez Acuña refuta informe de la CNDH [Ramirez Acuna rejects the CNDH report], El Universal, August 18, 2004. See also CNDH, Press Release 128/04, August 25, 2004; CNDH, Press Release 144/04, September 23, 2004; CNDH, Press Release 147/04, September 29, 2004.
66 Anuncian incentivo economico para elementos policiacos [Economic incentives for police officers are announced], El Informador, June 2, 2004. Francisco de Anda, Erika Haro and Jessica Perez, Premian el aguante [Prizes for the strong ones], Mural.com, June 2, 2004.
67 The CNDH report also asks the municipal president to order that guidelines were adopted, and the appropriate capacity-building courses were carried out, to improve the respect of human rights by municipal law enforcement agents. CNDH, Informe Especial de la Comision Nacional de los Derechos Humanos Relativo a los Hechos de Violencia Suscitados en la Ciudad de Guadalajara, Jalisco, el 28 de Mayo del 2004, con Motivo de la Celebración de la III Cumbre de América Latina, el Caribe y la Unión Europea, 2004, http://www.cndh.org.mx/lacndh/informes/informes.htm (accessed March 10, 2007), section VII.
68 A second administrative investigation analyzed whether two municipal police officers, Andres Rios Nunez and Felix Hernandez Chalas, had lied when they declared before prosecutors that they had detained five men in flagrati delicto. The investigation concluded that the two officers had not incurred in any administrative fault. Decision by Asuntos Internos / Coordinacion de Investigacion y Seguimiento [Internal Affairs / Coordination of Investigation and Follow-up] on Case 50/2005-E. (The decision is dated May 30, 2004 but talks about facts and documents of 2005).
69 CNDH staff told Human Rights Watch that the follow up to the special report was limited to receiving information from government authorities and civil society organizations. Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007. CNDH document 11985 from file 2007/17-T, April 18, 2007.
71 In February 2007 the Citizen Council of Jalisco state human rights commission objected to Ramirez Acuñas appointment. According to the council, the systematic violation of human rights, torture, arbitrary detentions and police brutality were permanent features of his governorship. Jalisco State Human Rights Commission, Balance Estadístico de la Administración Estatal 2001-2006 [Statistical Balance of the State Administration 2001-2006], Boletín 17/07, February 22, 2007, http://www.cedhj.org.mx/difus.html (accessed March 8, 2007).
72 CNDH document V2/28160 from file 2004/1673, August 29, 2007.
According to abuse victims, the new governor of Jalisco had told them that he would push for investigations of these abuses if the state human rights commission requested him to do so. Given that the CNDH had analyzed the case, petitioners requested the CNDH to intervene. Human Rights Watch telephone interview and email communication with Jaime Hernandez, Centro de Derechos Humanos Coordinadora 28 de Mayo, A.C., Guadalajara, December 17, 2007.
73 Letter sent by Jaime Hernandez to the CNDH advisory council, November 15, 2007. Human Rights Watch mail communication with Jaime Hernandez, December 17, 2007. Juan Carlos G. Partida, Pedira Soberanes a EGM que investigue caso 28 de mayo; niega que se le haya dado carpetazo [Soberanes will request the governor of Jalisco to investigate the May 28 case; he denies that the case has been filed], La Jornada Jalisco, September 28, 2007.
Juan Carlos G. Partida, La CNDH da carpetazo al caso 28 de mayo; No esta obligada a dar seguimiento, afirma [The CNDH files the May 28 case; It is not obliged to follow up], La Jornada Jalisco, September 26, 2007. Juan Carlos G. Partida, Rechaza la CNDH seguir caso de altermundistas [The CNDH rejects following up on the case of the antiglobalization protestors], La Jornada, September 26, 2007.
74 Juan Carlos G. Partida, Acepta el gobierno estatal abrir investigacion sobre la represion del 28 de mayo de 2004 [The state government accepts opening investigations into the repression of May 28, 2004], La Jornada Jalisco, December 19, 2007.
75 CNDH, Recomendacion 38/2006, October 16, 2006, section IV.B.
76 The CNDH also requested the SSP to initiate administrative proceedings against members of the SSP who had impeded the CNDHs work and to provide training to its security forces to avoid torture and cruel and inhuman treatment. Additionally, it asked the governor of the state of Mexico, among other things, to pay monetary damages to the families of the two individuals who died during the events, to verify the physical and health conditions of detainees, to continue with criminal investigations into the deaths of the two people mentioned in the report, and to instruct the general director of prevention and social readaptation of the state of Mexico to investigate the director and other personnel in the Santiaguito prison in that state. Finally, it asked the INM that, based on the administrative investigation it had to carry out, it provide reparations to the expelled foreigners. Ibid., section V.
77 CNDH staff told Human Rights Watch that they also monitored the activities carried out by the INM to implement the CNDH recomendacion, given that the INM had accepted its recommendations. Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
78 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2006 [Report of Activities between January 1 to December 31, 2006], 2007, http://www.cndh.org.mx/CDINFORME2006iMAGEN/INFORME_DE_ACTIVIDADES_2006_1.htm (accessed December 6, 2007), section II.2.B.
79 Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
80 Ibid. CNDH, Press Release 154/06, November 12, 2006; CNDH, Press Release 156/06, November 13, 2006; CNDH, Press Release 19/07, January 24, 2007. Erika Hernandez and Armando Estrop, Contradice CNDH a Medina Mora [The CNDH contradicts Medina Mora], Reforma, January 25, 2007. Paloma Alcantara, Lamenta la CNDH respuestas negativas [The CNDH laments negative responses], El Economista, March 21, 2007. Victor Ballinas, Teme CNDH que los ilicitos queden en la impunidad [The CNDH fears that crimes will end in impunity], La Jornada, May 4, 2007.
81 Ministry of Public Security, Oficio No SSP/ /2006 (sic), October 31, 2006.
82 CNDH, Recomendacion 44/98, May 15, 1998, section I.H.
83 It also recommended that the municipality of Ciudad Juarez initiate administrative procedures against those who failed to provide security to women who were murdered and/or raped in that city. Ibid, section IV.
84 Human Rights Watch interview with Raul Plascencia Villanueva, first visitador, and staff from the first visitaduria, Mexico City, March 21, 2007. According to the CNDH annual reports of 2000, 2001, and 2003, the recomendacion was partially fulfilled since the governor of Chihuahua still needed to provide information on measures adopted to obtain results in the criminal investigations, as well as information on agreements it had signed with other prosecutors offices to create interdisciplinary teams to investigate the murder cases. The municipal president still had not provided information on the results of administrative investigations that were being carried forward. CNDH, Informe de Actividades del 16 de noviembre de 1999 al 15 de noviembre de 2000 [Report of Activities between November 16, 1999 and November 15, 2000], 2001, http://www.cndh.org.mx/lacndh/informes/anuales/00anx.pdf (accessed December 6, 2007), p. 152, CNDH, Informe de Actividades del 16 de noviembre de 2000 al 31 de diciembre de 2001 [Report of Activities between November 16, 2000 and December 31, 2001], 2002, http://www.cndh.org.mx/lacndh/informes/anuales/01activ.pdf (accessed December 6, 2007), pp. 469-70; CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2002 [Report of Activities between January 1 and December 31, 2002], 2003, http://www.cndh.org.mx/lacndh/informes/anuales/02activ.pdf (accessed December 6, 2007), p. 670.
85 A press release of November 2002 talks about a request by members of the political party Mexico Posible to the CNDH for it to commemorate the International Day of No Violence Against Women by flying its flag at half mast. Only then did the CNDH say that the state and municipal governments had not yet complied with its recommendations and that its new office in Ciudad Juarez would address cases of violence against women. CNDH, Press Release 175/2002, November 2002.
86 The state government of Chihuahua rejected three of the recommendations issued by the CNDH, which asked it to investigate the administrative responsibility of Mr. Luis Raul Valenzuela, liaison chief of the state prosecutors office; to order the administrative investigation of the deputy state prosecutor of the North Zone in Ciudad Juarez, as well as of other staff from his office (the regional coordinator, the chief of preliminary investigations, the coordinator of the Specialized Unit on Sexual Crimes against the Family and Disappeared People); and to investigate the role played by prosecutors, expert personnel, and judicial police who participated in the investigations. The CNDH recommended that if the administrative investigations provided information on the possible commission of a crime, these individuals should be criminally prosecuted. The CNDH also recommended the state government to investigate the probable responsibility of Arturo Chavez Chavez, the state prosecutor. CNDH, Evaluacion Integral de las Acciones Realizadas por los Tres Ambitos de Gobierno en Relación a los Feminicidios en el Municipio de Juarez, Chihuahua [Integral Evaluation of the Actions Undertaken by the Three levels of Government with respect to the Feminicides in the Municipality of Juarez, Chihuahua], undated, http://www.cndh.org.mx/lacndh/informes/espec/infJrz05/index.htm (accessed November 6, 2007).
87 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 305.
88 Attorney Generals Office, Informe Final de la Fiscalia para la Atención de Delitos Relacionados con los Homicidios de Mujeres en el Municipio de Juárez, Chihuahua, [Final Report by the Prosecutors Office for the Attention of Crimes related to Womens Murders in the Municipality of Juarez, Chihuahua], January 30, 2006, p. 152.
89 According to the CNDH, in 65 cases someone was convicted for these crimes, four cases ended with special sentencing, nine with a non-guilty verdict, 50 were pending before the courts, 60 were being investigated by prosecutors, three were in reserve, there were 17 arrest warrants that had not been executed, four arrest warrants had been rejected; two allegedly responsible people were freed due to lack of evidence; nine cases were filed; one was sent to the federal Attorney Generals Office; and 12 were sent to the juvenile justice system.
90 Ibid., section VI.E.
91 The report also recommends that all levels of government contribute funds to implement a comprehensive public security plan for the municipality of Juarez, and include professional staff that can carry out activities to prevent crimes related to violence against women. Other measures to be implemented by all levels of government are, for example, measures to coordinate training programs to prevent crimes, provide reparations to the victims and their families in cases in which investigations were not carried out properly, provide results and other information on developments in investigations of homicides and disappearances of women, as well as information on the level of implementation of recommendations by international organizations.
92 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007), annex, p. 653.
93 For example, CNDH, Press Release 42/05, April 12, 2005; CNDH, Press Release 078/05, July 15, 2005; CNDH, Press Release 105/05, September 4, 2005; CNDH, Press Release 24/6, February 14, 2006.
94 CNDH Gaceta [CNDH Gazette], No 172, Nov. 2004, 39-52. CNDH, Evaluacion Integral de las Acciones Realizadas por los Tres Ambitos de Gobierno en Relación a los Feminicidios en el Municipio de Juarez, Chihuahua [Integral Evaluation of the Actions Undertaken by the Three levels of Government with respect to the Feminicides in the Municipality of Juarez, Chihuahua], undated, http://www.cndh.org.mx/lacndh/informes/espec/infJrz05/index.htm (accessed November 6, 2007).
95 New officials increased the resources and personnel of the prosecutors office, moved their offices so that they were closer to the centers for the attention of victims, created a new system for forensic science, and reactivated old investigations. They identified as a major flaw in past investigations that the judicial police were unable to investigate and coordinate activities with other agencies, and therefore decided to increase coordination among prosecutors, police, and experts. Human Rights Watch interview with Patricia Gonzalez, Chihuahua state prosecutor, and with Cony Velarde, deputy prosecutor for the north zone of Chihuahua State, Ciudad Juarez, November 14, 2005.
96 Among other things, it creates an oral and adversarial system, installs an office to instrument public policies to promote human rights within the state prosecutors office and give proper attention to victims, includes the murder of women in the new criminal code, implements a system of alternative justice, and provides mechanisms to ensure the assistance and protection of victims of crime. The state justice reform modified the state Constitution and included 10 new laws. These laws are a new Code of Criminal Procedures (Nuevo Codigo de Procedimientos Penales), a new Criminal Code (Nuevo Codigo Penal), a Law to Protect Victims of Crime (Ley de Proteccion a Victimas del Delito), an Organic Law of the Prosecutors Office (Ley Organica del Ministerio Publico), an Organic Law of the Judicial Branch (Ley Organica del Poder Judicial), an General Law of Justice and Access to Information (Ley General de Justicia y Acceso a la Informacion), a Law on Alternative Criminal Justice (Ley de Justicia Penal Alternativa), a Public Defenders Law (Ley de la Defensoria Publica), a Law on Womens Right to a Life Free of Violence (Ley de Derecho a las Mujeres a una Vida libre de Violencia), and a General Law on Penitentiary and Execution of Criminal Sanctions and Security Measures (Ley General Penitenciaria y de Ejecucion de Penas y Medidas de Seguridad). Information provided to Human Rights Watch by Sergio Facio Guzman, private secretary of Patricia Gonzalez, Chihuahua state prosecutor, June 8, 2007. See also Mexican Ministry of Foreign Affairs, Boletin Informativo Numero 9. Derechos Humanos: Agenda Internacional de Mexico [Informative Bulletin Number 9. Human Rights: Mexicos International Agenda], June 1, 2006.
97 Mexican Ministry of Foreign Affairs, Boletin Informativo Numero 9. Derechos Humanos: Agenda Internacional de Mexico [Informative Bulletin Number 9. Human Rights: Mexicos International Agenda], June 1, 2007.
98 The EAAF was recruited initially by Mexican and internaional NGOs. The National Commission to Prevent and Erradicate Violence Against Women in Ciudad Juarez supported this initiative. It later on played an important role in 2004 to ensure that the EAAF had access to files it needed to conduct its preliminary assessment of the situation in Juarez, and contributed to convincing the current state prosecutor to allow the EAAF to continue with its tasks. Human Rights Watch email communication with Mercedes Doretti, EAAF, New York, January 18, 2007.
99 Ibid. Human Rights Watch telephone interview with Mercedes Doretti, EAAF, Ciudad Juarez, July 10, 2007.
100 The most common instrument the CNDH issues after documenting serious human rights abuses is a public document that is formally known as a recomendacion, or recommendation. The recomendacion details the abuses and often contains multiple specific recommendations directed to different state institutions describing the steps that relevant government authorities should take to redress the violations. For more information on the CNDHs mandate, structure, and methods, see chapter II of this report.
101 According to the CNDHs rules of procedure, the CNDH will follow-up after it issues recomendaciones and once a recomendacion is issued, the CNDHs role is to follow-up and to ensure that it is totally complied with. CNDH rules of procedure, arts. 138 and 139. Article 138 of the CNDH rules of procedure establishes that CNDH staff will follow-up after it issues recomendaciones and will report to the president of the National Commission the status of recomendaciones, in accordance with the following categories: I. Recomendaciones not accepted, II. Accepted recomendaciones, with evidence of total compliance, III. Accepted recomendaciones, with evidence of partial compliance, IV. Accepted recomendaciones, without evidence of compliance, V. Accepted recomendaciones, with unsatisfactory compliance, VI. Accepted recomendaciones, in time to present evidence of compliance, VII. Recomendaciones awaiting response, VIII. Accepted recomendaciones, where compliance has certain specific characteristics. Once the real possibilities to comply with a recomendacion have concluded, the follow-up may end with an official document by the chief investigator, which will establish under what category the case will be closed.
102 Human Rights interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007. When referring to a specific case of torture, the CNDH president told Human Rights Watch that the process to follow up after a recomendacion [begins] if it has been accepted. Since they have accepted it, we initiated the mechanism to follow up after a recomendacion.
Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007. Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007.
103 Human Rights Watch interview with Raul Plascencia Villanueva, first visitador, and staff from the first visitaduria, Mexico City, March 21, 2007.
104 Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
105 There were four rejected recomendaciones in 2000, seven in 2001, three in 2002, 14 in 2003, 25 in 2004, 6 in 2006, and 11 in 2006. CNDH, Informe de Actividades del 16 de noviembre de 1999 al 15 de noviembre de 2000 [Report of Activities between November 16, 1999 and November 15, 2000], 2001, http://www.cndh.org.mx/lacndh/informes/anuales/00activ.pdf (accessed December 6, 2007); CNDH, Informe de Actividades del 16 de noviembre de 2000 al 31 de diciembre de 2001 [Report of Activities between November 16, 2000 and December 31, 2001], 2002, http://www.cndh.org.mx/lacndh/informes/anuales/01activ.pdf (accessed December 6, 2007); CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2002 [Report of Activities between January 1 and December 31, 2002], 2003, http://www.cndh.org.mx/lacndh/informes/anuales/02activ.pdf (accessed December 6, 2007); CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007); CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007); CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2005 [Report of Activities between January 1 to December 31, 2005], 2006, http://www.cndh.org.mx/lacndh/informes/espec/cdinf2005/ifact2005.htm (accessed December 6, 2007); CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2006 [Report of Activities between January 1 to December 31, 2006], 2007, http://www.cndh.org.mx/CDINFORME2006iMAGEN/INFORME_DE_ACTIVIDADES_2006_1.htm (accessed December 6, 2007).
106 CNDH, Recomendacion 37/05, November 10, 2005.
107 In its 2005 annual report, the CNDH did not report whether any rationale was given by the municipal president for its rejection.
108 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2005 [Report of Activities between January 1 to December 31, 2005], 2006, http://www.cndh.org.mx/lacndh/informes/espec/cdinf2005/ifact2005.htm (accessed December 6, 2007), section II.2.B.
109 CNDH, Recomendacion 16/03, April 22, 2003.
110 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007), pp. 87 - 90.
112 Torres appealed before the CNDH after local authorities rejected a recomendacion issued by the Chihuahua state commission on February 6, 2004. CNDH, Recomendacion 56/04, August 31, 2004.
113CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 196.
114 CNDH, Recomendacion 69/04, September 24, 2004.
115 The CNDH issued the same recommendation to the Ayuntamiento Constitucional de Chihuahua that the State Commission on Human Rights had issued in January 2004.
116 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 232.
117 CNDH, Recomendacion 59/04, August 31, 2004.
118 In its response to the recommendations, the State Prosecutors Office said that it did not believe there was solid evidence to open a criminal or administrative investigation of members of the judicial police allegedly involved in this case.
119 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 204.
120 At the Centro de Salud de Huamantla (Health Center of Huamantla) in Tlaxcala, Julio was diagnosed with a bump on the head. When he began vomiting, he was transferred to the Centro de Salud de Tlaxcala (Health Center of Tlaxcala), arriving there at 10:00 p.m. Julio was not examined at this hospital because it did not have photographic plates for x-rays and they could not find a pediatrician who could see him. He was then sent in an ambulance to the General Hospital from Zone 1. At this location the receptionist/medical assistant asked him and the person that was with him for their documents that proved that they were beneficiaries of Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS). SInce they did not have the documents with them, they were asked to leave a deposit of $25,000 pesos, which they did not have. They then spoke with a doctor, who said that he could not admit Julio because the social security laws had changed and the hospital could only admit beneficiaries of the IMSS. They were sent in an IMSS ambulance to the Regional Hospital of Apizaco, where Julio had x-rays taken, but the doctors informed his parents that he needed a CAT scan, which cost $1,100 pesos. After they obtained the money the following morning, the doctor transferred them to the city of Tlaxcala for the procedure. They then returned to the Regional Hospital, where the doctor reviewed the results and told them Julio had a skull fracture and needed surgery. However, there was no neurosurgeon at this hospital, so Julio was again transferred, this time to a hospital in Puebla. Julio died during the transit to this hospital.
121 CNDH, Recomendacion 44/04, August 3, 2004.
122 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 161.
123 Human Rights Watch interview with Raul Plascencia Villanueva, first visitador, and staff from the first visitaduria, Mexico City, March 21, 2007.
124 Human Rights interview with Susana Thalia Pedroza, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007; Human Rights Watch interview with staff from the fourth visitaduria, Mexico City, March 22, 2007; Human Rights Watch interview with Mauricio Farah Gebara, fifth visitador, and staff from the fifth visitaduria, Mexico City, March 20, 2007.
125 According to Article 63 of the CNDH rules of procedure, The CNDH president can delegate to the chief investigators the power to request a criminal investigation, and, if so, to carry out and follow up on the actions undertaken during the investigations, and criminal and administrative proceedings.
The CNDH may also request the government to initiate administrative or criminal investigations when government officials do not collaborate with the CNDH during its investigations. According to Article 73 of the Law of the CNDH, The National Commission will be able to monitor the actions and activities carried out in criminal investigations, and criminal and administrative proceedings that are integrated or ordered based on its intervention, as provided for in this law and in article 102, section B of the Mexican Constitution, through its chief investigators and the deputy investigators.
126 The first CNDH president, Jorge Carpizo, made this clear in 1992 when he wrote that, to implement a CNDH recommendation, a government official needed to issue an arrest warrant and execute it. Otherwise, according to Carpizo, the case should remain open. CNDH, Cuarto Informe Semestral de Actividades, Dic. 91-Jun. 92 [Fourth Semi Annual Report of Activities, December 1991 to June 1992], p. 68. More recently, the current CNDH president acknowledged that the institution has the authority to evaluate the seriousness of criminal and administration investigations into abuse cases. Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007.
127 For instance, when the CNDH analyzed the case of Atenco, it stated that it would be following the investigations until their final resolution. (CNDH, Press Release 073/06, May 16, 2007.) And when investigating the murder of American journalist Brad Will during the conflict in Oaxaca in 2006, the CNDH insistently requested state authorities to have access to the corresponding criminal investigation and criticized them for denying such access. (CNDH, Press Release 148/06, November 2, 2006.) Similarly, after journalist and writer Lydia Cacho received death threats, the CNDH requested the federal attorney general to implement precautionary measures to protect her. In this case, the CNDH permanently followed up on the work of prosecutors investigating this case. And when analyzing Cachos allegations of arbitrary detention, the CNDH went to the Attorney Generals Offices to analyze information in their files regarding ongoing investigations. CNDH memos on files 2005/737/QROO/5/5Q and 2005/5290/5/Q, provided to Human Rights Watch by Lydia Cacho on March 19, 2007.
128 Since military prosecutors did not provide the CNDH information included in their investigations of the alleged torture, the CNDH concluded that the military had not refuted Montiel and Cabreras allegations and thus concluded they had been tortured. CNDH, Recomendacion 8/2000, July 14, 2000, section IV.
129 Ibid., section V.
130 Human Rights Watch telephone interview with Luisa Perez, Centro Prodh, Mexico City, May 4, 2007.
131 The military held Montiel and Cabrera for two-and-a-half days, thus violating Article 16 of the Mexican Constitution (which states that individuals who are detained in flagrante delicto shall be brought before competent authorities without delay) and Article 20 of the Constitution, which enshrines the right to defense. CNDH, Recomendacion 8/2000, section IV.B.i.3. Also, the military searched Cabrera's home without judicial authorization. Ibid., section IV.B.iii.3.
132 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007), annex, p. 669.
133 The CNDH uses different formulations for this. It requests government authorities to inform (dar vista), provide instructions (gire instrucciones, se sirva instruir) or instruct (instruya) competent authorities to initiate investigations.
134 CNDH, Recomendacion 6/2000, July 14, 2000.
135 CNDH, Informe de Actividades del 16 de noviembre de 1999 al 15 de noviembre de 2000 [Report of Activities between November 16, 1999 and November 15, 2000], 2001, http://www.cndh.org.mx/lacndh/informes/anuales/00activ.pdf (accessed December 6, 2007), pp. 40-41.
136 CNDH, Recomendacion 46/2002, December 6, 2002.
137 The CNDH also requested the IMSS to train its personnel that carry out family planning programs so that they comply with their obligation to obtain informed consent and respect individuals right to decide on the number and spacing of children that they will have, as well as on the family planning methods they will use. Ibid.
138 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2003 [Report of Activities between January 1 and December 31, 2003], 2004, http://www.cndh.org.mx/lacndh/informes/anuales/03activ.pdf (accessed December 6, 2007), Annex, p. 703.
139 CNDH, Recomendacion 1/2003, January 16, 2003. (In this case there already was a criminal investigation underway).
140 CNDH, Informe de Actividades del 1 de enero al 31 de diciembre de 2004 [Report of Activities between January 1 to December 31, 2004], 2005, http://www.cndh.org.mx/lacndh/informes/anuales/04activ.pdf (accessed December 6, 2007), p. 788.
141 CNDH, Recomendacion 2/2000, April 26, 2000.
142 CNDH, Informe de Actividades del 16 de noviembre de 1999 al 15 de noviembre de 2000 [Report of Activities between November 16, 1999 and November 15, 2000], 2001, http://www.cndh.org.mx/lacndh/informes/anuales/00activ.pdf (accessed December 6, 2007), pp. 33-34.
143 CNDH, Rules of Procedure, art. 174.
144 According to the CNDHs rules of procedure, The National Commission will be able to issue general recommendations to different government authorities in the country, with the purpose of promoting changes to norms and administrative practices that lead to human rights violations. These recommendations will be elaborated similarly than those in specific cases and will be based on studies carried out by the National Commissions investigative units, after approval by the National Commissions president. Before they are issued, these recommendations will be analyzed and approved by the advisory council. CNDH, Rules of Procedure, art. 140.
The CNDH began issuing general recommendations in 2000. Acuerdo del Consejo Consultivo de la Comisión Nacional de los Derechos Humanos, por el que se adiciona el artículo 129 bis al Reglamento Interno de la Comisión Nacional de Derechos Humanos [Agreement of the CNDH advisory council by which it adds article 129 bis to the internal rules of procedure of the CNDH], Federal Official Gazzette, November 17, 2000.
As of December 2007, the CNDH had issued 14 general recommendations on a range of pressing human rights issues, such as searches in prisons; arbitrary detentions; the rights of female prisoners; violations to sexual and reproductive rights against indigenous peoples; religious freedom in public schools; and illegal practices against immigrants, among others.
145 Human Rights interview with Susana Thalia Pedroza, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
146 CNDH, Rules of Procedure, art. 175.
147 Human Rights Watch interview with staff members of the fourth visitaduria of the CNDH, Mexico City, March 22, 2007.
148 According to the current director of the CNDHs National Human Rights Center (Centro Nacional de Derechos Humanos, NHRC), there is no legal obligation to follow-up because general recommendations are not based on a concrete act that the CNDH could ask government authorities to perform. Human Rights Watch interview with Victor Manuel Bulle Goyri, director of the NHRC, Mexico City, March 16, 2007.
149 Human Rights Watch interview with Raul Plascencia Villanueva, first visitador, and staff from the first visitaduria, Mexico City, March 21, 2007.
150 CNDH, Rules of Procedure, art. 140.
151 In many criminal legal systems, the legality principle is understood as the general prohibition to impose criminal sanctions to individuals for acts that were not offenses included in criminal codes at the time they were committed (nullem crimen sine lege).
152 According to one chief investigator, When the law does not allow it, we have our hands tied. ( ) In Mexico public officials can only do what the law authorizes us to do. [Instead,] individuals ( ) can do whatever the law does not forbid them to do. Here another legal principle applies. We can only do what the law allows us to do. ( ) Otherwise we incur in responsibility. Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
According to another chief investigator, As public officials, we are subject to some principles. One of them is that we cannot do more than what the law says. In this context, our chances to combat impunity are somewhat reduced. Human Rights Watch interview with Mauricio Farah Gebara, fifth visitador, and staff from the fifth visitaduria, Mexico City, March 20, 2007.
153 The CNDHs citizen advisory council has the power to elaborate the CNDH internal guidelines and to modify its rules of procedure. Law on the CNDH, art. 19. Moreover, the CNDH can propose reforms for other government institutions to adopt. See chapter V of this report on promoting changes to legal norms.
154 Mexican Constitution, art. 16. To satisfy the requirements established in the Constitution, the Supreme Court has held that decisions by government institutions must be based on specific legal norms, and must explain how these are applicable to the facts of the case. Mexican Supreme Court, Second Sala, Thesis 2a. CXCVI/2001, Semanario Judicial de la Federacion y su Gaceta, October 2001, p. 429. According to binding case law issued by a lower tribunal, The due basis and legal motivation must be understood, first, as [the need to] cite the applicable legal norm, and, second, the reasons, motives or special circumstances that led the authority to conclude that the legal norm invoked as the justification can be applied to the particular case. Tribunales Colegiados de Circuito, Thesis Vi.2o. J/43, Semanario Judicial de la Federacion y su Gaceta, March 1996, p. 769. Another binding decision by the Supreme Court states that, The principle limits acts of authority, which means that everything that is not expressly allowed is prohibited and that they can only carry out acts that the legal system provides for. Mexican Supreme Court, Thesis P./J. 9/2006, Semanario Judicial de la Federacion y su Gaceta, February 2006, p. 1533.
155 Tribunales Colegiados de Circuito, Thesis I.40.T.19 K, Semanario Judicial de la Federacion y su Gaceta, May 1998, p. 1021.
156 The formal content of the guarantee of legality provided for in article 16 of the Constitution related to the basis and justification [of government acts] has as its main purpose that the individual know why the government authority acted in such a way, which translates into informing [him or her] in detail and completely the essence of all the circumstances and conditions that led to the act, so that it is evident and very clear for the affected [individual] so [he or she] can question and challenge the merits of the decision, allowing [him or her] a real and authentic defense. Tribunales Colegiados de Circuito, Thesis I.4o.A. J/43, Semanario Judicial de la Federación y su Gaceta, May 2006, p. 1531.
The guarantee of motivation is violated only when the reasoning is so imprecise that it does not provide elements to the citizen to defend [his or her] rights or challenge [the reasons]. Tribunales Colegiados de Circuito, Thesis XIV.2o.45 K, Semanario Judicial de la Federación y su Gaceta, February 2004, p. 1061.
According to the Mexican Supreme Court, for example, legislative authorities comply with this principle when they generate certitude in those it governs with respect to the legal consequences of their behavior and, on the other hand, when norms that provide a certain power to a government authority, limit the attribution to the extent necessary and reasonable, so that the respective government authority does not act capriciously or arbitrarily. Mexican Supreme Court, Second Sala, Thesis 2a. CLXXIX/2001, Semanario Judicial de la Federacion y su Gaceta, September 2001, p. 714.