V - Reform
In addition to pressing the state to remedy specific abuses, the CNDH has the power to promote the reforms that are needed to prevent future ones. Here too, however, the CNDH has tended to abdicate its authority, too often allowing abusive policies to continue unchecked.
One of the CNDHs most important functions is to challenge national laws that are inconsistent with international human rights standards. Yet, on a range of important issues, the CNDH has done just the opposite, tolerating abusive practices by deferring to existing national laws. In these cases, the CNDH has displayed a fundamental disregard for the very international human rights standards that it is supposed to be promoting.
The CNDH has also failed to support efforts by other state organsincluding the executive and legislative branchesto bring Mexican law into compliance with international human rights standards. In at least one case involving Mexico Citys abortion law, it has actively opposed such efforts.
As with the CNDHs failure to actively monitor implementation of its recommendations, CNDH officials justify their failure to promote reform with an unnecessarily limited interpretation of what their own role can and should be. Perhaps the clearest evidence of the speciousness of these arguments is the fact that on several occasions the CNDH has in fact played a far more active and constructive role in promoting reform. If the CNDH did so more often, it would have a far greater impact on curbing human rights abuses in Mexico than it does now.
How the CNDH Limits Its Own Mandate
Mexican law grants the CNDH ample authority to promote reforms aimed at improving human rights practices. It may propose changes to laws, regulations, and governing practices to increase the respect of human rights.157 Since November 2000, the CNDH has had the power to issue general recommendations that address general practices and legal norms that undermine human rights protections.158 And since April 2006, it has had the power to challenge before the Supreme Court the constitutionality of federal or state laws that violate human rights standards established in the Mexican Constitution.159
Yet CNDH officials interpret this mandate in a very limited fashion. They argue that, since the Mexican Constitution and the law on the CNDH only empower them to address violations of human rights protected by the Mexican legal system, they cannot advocate for rights that are not explicitly established in Mexican constitutional or statutory law.160 Yet, one of the most important principles that the CNDH should be championing is that the Mexican legal system includes the states obligations under international law.
The Mexican Supreme Court, the highest authority on the Mexican legal system, has itself upheld this principle, ruling on two occasions that Mexico is bound by its international obligations and that the provisions of treaties ratified by Mexico take precedence over federal and state statutory law (but not over provisions of the Constitution).161 While these rulings do not yet constitute binding jurisprudence for Mexicos lower courts (under Mexican law, the Supreme Court generates binding jurisprudence when it issues five consecutive decisions that reach the same conclusion), they do provide an authoritative interpretation of Mexican law that should be the guiding principle of the CNDH.
This limited interpretation of its mandate has seriously hindered the CNDHs ability to contribute to human rights progress in Mexico.
Some of the most egregious human rights violations documented by the CNDH have been military abuses against civilians. These abuses are rarely punished, however, in large part because the military justice system routinely exercises jurisdiction over military abuses, and military authorities have proven unable to properly investigate and prosecute human rights cases. Rather than challenging military jurisdiction over human rights cases, the CNDH has routinely turned military abuse cases over to military prosecutors, virtually ensuring there would be no effective remedy for the victims or their families.
The CNDH president argued as recently as October 2007 that, according to Mexican law, military officers should be tried by civilian courts only when they commit crimes while off duty. Accordingly, the CNDH has no choice but to request military prosecutors to investigate military abuse cases.162
But it does have a choice. It could take advantage of a recent Supreme Court ruling that points towards a different interpretation of applicable law. While the Mexican Constitution establishes military jurisdiction only for offenses against military discipline,163 the Code of Military Justice establishes a very expansive notion of such offenses that includes offenses under common or federal law when committed by military personnel on active service or in connection with active service.164 In 2005 the Mexican Supreme Court limited the scope of the clause by defining service as performing the inherent activities of the position that [he or she] is carrying out. Although at the time the court was not deciding a human rights case, the decision suggests that human rights violations cannot be considered inherent to activities carried out by military officials.165 The CNDH could also take into account constitutional interpretations by Mexican legal scholars, who argue that military courts may not exercise jurisdiction over civilian victims, since the Constitution provides for victims rights.166
In any case, even if Mexican law suffered from some ambiguity regarding military jurisdiction, the CNDH could apply international law, which is quite clear. Mexico has an obligation to provide victims of human rights abuses with effective remedies. And authoritative international human rights bodies have repeatedly found that military tribunals cannot be relied upon to provide such remedies. For that reason, they have called on states to transfer jurisdiction over these cases from military to civilian authorities.167 In the case of Mexico, the U.N. Special Rapporteur on Torture found that Mexican military personnel who committed abuses were generally protected by military justice and concluded that [c]ases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice.168
Rather than challenge the misuse of military justice, the CNDH has routinely turned military abuse cases over to military prosecutors, including:
More recently, the CNDH has requested military prosecutors to investigate human rights abuses committed by the military while engaged in law enforcement activities. These cases include:
The CNDH has even requested that the Military Prosecutors Office (Procuraduria General de Justicia Militar, PGJM) handle cases even after finding irregularities in the investigations the military had already conducted. In 2005 the CNDH documented a 2003 shooting at a military checkpoint in Guerrero, in which soldiers injured Rogaciano Miranda Gomez, a minor, and killed Prisciliano Miranda Lopez. The CNDH concluded that soldiers had shot Miranda in the back and then failed to bring him to a hospital for another 12 hours. It also determined that a military prosecutor had engaged in irregularities when investigating the case, including failing to assess contradictions in the statements made by military personnel, and then closing the case. Yet the CNDH then sent the case back to the PGJM with the expectation they would do a better job investigating it the second time around.180
The CNDH has also failed to challenge military jurisdiction in cases where its use violated the Mexican Constitution. According to the Constitution, military tribunals shall in no case and for no reason exercise jurisdiction over persons who do not belong to the army, and [w]henever a civilian is implicated in a military crime or violation, the respective civilian authority shall deal with the case.181 Accordingly, when both military and civilians are suspected of committing a particular crime, the case must go to civilian courts.182
Yet military prosecutors and courts have openly ignored this provision of the Constitution, most notably in the dirty war cases involving three military officers implicated in enforced disappearances in Guerrero in the 1970s. The PGJM recognized the participation of civilians in the commission of the crimes, yet it persisted with the prosecutions, and ultimately acquitted the defendants.183 The CNDH did not adequately question this flagrant misuse of military jurisdiction.184
The CNDH has for years failed to challenge the militarys flagrant discrimination against people living with HIV, citing Mexican law to legitimate a policy that violates both the Mexican Constitution and international human rights standards.
The Ministry of Defense (Secretaria de la Defensa Nacional, SEDENA) has routinely fired military personnel who are living with HIV based on their HIV status. Prior to 2003, SEDENA justified this discriminatory practice by citing the Law on the Social Security Institute for the Mexican Armed Forces (Ley del Instituto de Seguridad Social para las Fuerzas Armadas Mexicanas),even though it did not explicitly include HIV infection as a basis for expulsion from the military. More recently, SEDENA has referred to legislation passed by the Mexican Congress in 2003 that explicitly authorizes such discrimination.185
In September 2001, for example, the CNDH found that SEDENA had not violated the rights of Eliazar L., who had been fired after the military considered him useless to work because he lived with HIV. The CNDH argued that the law allowed the military to dismiss him, since it was medically certified that [the victim] had become infected while off duty.186 Similarly, in January 2002, the CNDH held that SEDENA had not violated the rights of Vicente J., who was fired for the same reason, arguing this time that it did not have jurisdiction to analyze the case because the petitioner had already challenged the decision through the relevant administrative channels.187
In August 2005, after finding out that he was HIV positive, Omar P.went to the CNDH to protect his work because he knew that others had been fired from the military for lH to protect his work because he knew that others had been fired from the military for living with HIV.188 The CNDH told Omar P. that it did not have jurisdiction to analyze his case and referred him to the military ombudsman.189 According to Omar P., when he went back to work the commander in charge of his unit asked him, in front of the entire battalion, You have a deadly disease, why did you go to human rights? A few days later, the commander reportedly ordered every person in the battalion to go to the hospital for an HIV test.190 And a few months later, Omar P. was discharged from the military due to inutility.191 Omar P.s lawyer told Human Rights Watch that he presented another formal complaint before the CNDH, which the CNDH did not respond to until he won an injunction before the courts ordering the CNDH to analyze the case. According to his lawyer, when it finally did deal with the case, the CNDH sent Omar P. a conciliation proposal that stated he had consented to conciliation of the case, which he argues is not true.192
Omar P. told Human Rights Watch that he went to the CNDH expecting that they would protect him. But there was no help from the CNDH, he said. On the contrary, if I hadnt gone to the CNDH I would be o.k. ( ) and not in the situation that I find myself in [now].193
Not only has the CNDH failed to protect such HIV-positive individuals from discrimination, it has also refused to challenge the legal basis for this abusive practice. The CNDH president told Human Rights Watch that, since there were cases pending before the courts, the CNDH could not address this issue. According to the CNDH president, if the CNDH had been given legal standing to challenge the constitutionality of laws prior to 2006, it would have challenged the constitutionality of this law.194
But the CNDH could have openly criticized the Mexican Congress when it voted, in 2003, to explicitly authorize this sort of discrimination. Moreover, despite a ruling by Mexicos Supreme Court holding that the 2003 law is unconstitutional, the CNDH staff continues to insist that it cannot denounce this discriminatory practice.195 In conversations with Human Rights Watch, the director of the CNDHs program on HIV and human rights acknowledged that the law is discriminatory. Yet he insists that the CNDH cannot challenge the practice since its mandate is to defend the human rights established in the Mexican legal system and the law states that they can dismiss a military official with HIV.196
The CNDH official dismissed the relevance of the Supreme Court ruling on the law on the dubious grounds that it did not constitute binding jurisprudence, since Mexican law requires five consecutive Supreme Court rulings to establish binding jurisprudence. (After our interview, the Supreme Court did issue a fifth ruling and established binding jurisprudence.)197 Yet the fact that the ruling was not binding for lower court judges at that time does not mean that it was not an authoritative opinion that should inform the CNDHs evaluation of the law. There is no compelling reason why the CNDH must wait for the Supreme Court to issue five decisions before it challenges a blatantly discriminatory law, especially when that law contradicts international human rights standards.
The CNDH official also dismissed the relevance of international human rights standards, arguing that there is no international treaty that states that a military official cannot be dismissed for having HIV. This argument reflects a remarkably limited understanding of the applicability of international law. While there is no specific treaty language on this particular issue, there is a clear prohibition in several treaties against discrimination that is applicable here.198 The ICCPR, for example, prohibits discrimination based on HIV/AIDS, according to the U.N. Commission on Human Rights, the main political body within the U.N. system charged with human rights matters.199
In 2006 the CNDH did not publicly object when the Mexican Congress passed a decree granting major telecommunications companies control of the countrys airwaves, thereby undermining efforts to promote freedom of expression in Mexico.200 Although problematic provisions of the decree ultimately were struck down by the Supreme Court, the case again illustrates the CNDHs timidity.
The decreecommonly referred to as the Televisa Lawmodified the Federal Law on Radio and Television (Ley Federal de Radio y Television) and the Federal Law on Telecommunications (Ley Federal de Telecomunicaciones), allowing a few telecommunications companies to keep control of new channels created on the radioelectric spectrum through improvements in digital technology.201 The new rules established economic criteria to determine access to radioelectric frequencies and made it harder for non-commercial radio stations to obtain such access.202 It also created a mechanism by which the Ministry of Communications and Transportation would automatically authorizeon demand and without opening a public bidding processthose who already have a concession over a portion of the radioelectric spectrum for commercial exploitation to use their spectrum to provide other telecommunication services, such as Internet or telephone services.
Before the decree, ownership of media in Mexico was concentrated in two major private telecommunication companies. The new measures would have increased their power over the airwaves even further and dealt a new blow to efforts to expand and diversify commercial and non-commercial radio and TV offerings in Mexico.
The decree ran counter to Mexicos obligation to promote freedom of expression by making it virtually impossible for certain social sectors to express themselves through the broadcast media.203 According to authoritative international human rights bodies, when states administer the airwaves, they must ensure that there is fair and non-discriminatory access. In doing so, states must bear in mind that monopolies or oligopolies in the ownership of communication media limit the plurality and diversity that are necessary to ensure the full exercise of peoples right to information.204 According to the OAS Special Rapporteurship on Freedom of Expression:
Radio stations that style themselves as community, educational, participatory, rural, insurgent, interactive, alternative, and citizen-led are, in many instances and when they act within the law, the ones that fill the gaps left by the mass media; they serve as outlets for expression that generally offer the poor better opportunities for access and participation than they would find in the traditional media Given the potential importance of these community channels for freedom of expression, the establishment of discriminatory legal frameworks that hinder the allocation of frequencies to community radio stations is unacceptable.205
One sector of Mexican society that would have been particularly adversely affected by the decree is the countrys indigenous communities, which, as linguistic and cultural minorities, have a special interest in establishing local radio and TV stations in their own language. Indeed, the Mexican Constitution explicitly requires the state to provide indigenous communities with access to ownership and operation of electronic media.206
The decree was widely repudiated by international, governmental, and nongovernmental actors for its potential impact on freedom of expression in Mexico. The representative in Mexico of the U.N. High Commissioner for Human Rights stated that the decree placed undue limitations on the right to freedom of expression.207 The National Commission for the Development of Indigenous Peoples (Comision Nacional para el Desarrollo de los Pueblos Indigenas) criticized it for failing to guarantee equal access to radio spectrum for indigenous communities.208 And the World Association of Community Radio Broadcasters (Asociacion Mundial de Radios Comunitarias, AMARC) stated that the reforms violate the right to freedom of expression as they practically eliminate the possibility of access to radio and television frequencies for citizen groups and indigenous communities.209
A legislative minority challenged the constitutionality of this decree before the Supreme Court.210 In June 2007, the Supreme Court struck down crucial provisions of the law, arguing, among other things, that the law violated freedom of expression and the right of access to information, limited the social function of the radioelectric spectrum, and favored the creation of monopolies.211
By remaining silent on this controversial legislation, the CNDH missed an important opportunity to advance the protection of freedom of expression in Mexico.
A principal function of the CNDH is to ensure that Mexican laws and policies are consistent with human rights standards. Yet, CNDH did just the opposite in 2007 when it challenged the constitutionality of a law passed by the Mexico City legislature legalizing abortion for all women in the first 12 weeks of pregnancy.
In May 2007 the CNDH requested the Supreme Court to declare that the Mexico City law was unconstitutional.212 The CNDH argued, among other things, that the Mexican Constitution protects the right to life of the unborn from the moment of conception, and that such a right is supported by international human rights treaties that protect the right to life.213
Most international human rights instruments are in fact silent concerning the starting point for the right to life.214 Yet the negotiating history of many treaties and declarations, international and regional jurisprudence, and most legal analysis suggest that the right to life as spelled out in international human rights instruments is not intended to apply before the birth of a human being.215
The American Convention on Human Rights (ACHR) is the only international human rights instrument that contemplates the application of the right to life from the moment of conception, though not in an unqualified manner.216 In 1981, the Inter-American Commission on Human Rights established that the right-to-life provisions in this Convention and in the American Declaration on the Rights and Duties of Man are compatible with a womans right to access safe and legal abortions.217 Moreover, when Mexico ratified the ACHR, it added an interpretative declaration that said that the wording of the article on the right to life does not constitute an obligation to adopt, or keep in force, legislation to protect life from the moment of conception, since this matter falls within the domain reserved to the States.218
The CNDH recognizes that the right to life of the unborn (which it purports exists in international law) is not absolute and must be balanced with the right to life of the pregnant woman.219 Yet there are other fundamental rights at stake that the CNDH ignores. Authoritative interpretations of international law recognize that abortion is vitally important to womens exercise of their human rights, which are not limited to their right to life. They include, among others, the rights to health and health care, the right to non discrimination, and the right to decide the number and spacing of children.220 These rights are also provided for in the Mexican Constitution.221
Unsafe abortions are a grave threat to womens health.222 Where there is a lack of legal and safe abortion services and pervasive barriers to contraceptives and other reproductive health services, there will be unwanted pregnancies and unsafe abortions. Between 10 and 50 percent of women worldwide who undergo unsafe abortions require post-abortion medical attention for complications such as incomplete abortion, infection, uterine perforation, pelvic inflammatory disease, hemorrhage, or other injury to internal organs.223According to information from six Latin American countries, five to 10 of every 1,000 women are hospitalized annually for treatment of complications from an induced abortion.224 These may result in permanent injury, infertility, or death.
Access to safe and legal abortion services is also essential to the protection of womens rights to nondiscrimination and substantive equality.225 In practice, women are more likely than men to experience personal hardship as well as social disadvantage as a result of economic, career, and other life changes when they have children. Where women are compelled to continue having unwanted pregnancies, barriers to safe and legal abortion services forcibly put women at a further disadvantage.
Moreover, the Committee on the Elimination of Discrimination against Women (CEDAW Committee), which interprets the Convention on the Elimination of All Forms of Discrimination Against Women, has held that restrictive abortion laws are contrary to the right to nondiscrimination in access to health care.226 The CEDAW Committee has stressed states obligation to respect womens access to reproductive health services and to refrain from obstructing action taken by women in pursuit of their health goals.227 According to the Committee, barriers to womens access to appropriate health care include laws that criminalize medical procedures only needed by women and that punish women who undergo those procedures.228 It therefore recommends that [w]hen possible, legislation criminalizing abortion could be amended to remove punitive provisions imposed on women who undergo abortion.229 In the case of Mexico, the CEDAW Committee recommended in 1998 that all states of Mexico should review their legislation so that, where necessary, women are granted access to rapid and easy abortion.230
The right of women to decide on the number and spacing of their children without discrimination can only be fully implemented where women have the right to make decisions about when or if to carry a pregnancy to term without interference from the state.231 For this right to be fulfilled, women must also have access to all safe and effective means of controlling their family size, including abortion, as part of a full range of reproductive health care services.232
The CNDHs challenge to the Mexico City abortion law relied on a highly selective interpretation of relevant international law. Worse, it demonstrated a disturbing disregard for the internationally-protected human rights of women in Mexico City.
The CNDH issued a comprehensive general recommendation on torture in 2005 that documented what a serious and widespread problem it is throughout Mexico.233 However, despite the fact that Mexico is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture)234 and is obliged to take measures to eliminate and prevent torture, the CNDH did not provide concrete proposals to end the practice or advocate on behalf of existing initiatives to address it at the federal and state level.
The CNDHs general recommendation on torture made proposals to dozens of government officials at the state and federal levels, but the proposals were broad and unspecific.235 For example, it recommended that they define a strategy to prevent torture,236 but did not propose concrete changes or measures to deal with the factors that perpetuate the use of torture throughout Mexico.
A principal reason torture continues in Mexico is that law enforcement agents find they can use it to extract confessions, which can then be used to prosecute criminal suspects.237 Indeed, according to a 2004 study by the CNDH, in over 90 percent of the cases documented by the federal and state human rights commissions, torture had been used to force a confession from the victim.238 As a party to the Convention Against Torture Mexico is obliged to ensure that any statement made as a result of torture cannot be used as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.239 An obvious legal reform that would further this goal would be legislation making it impossible, in practice, to use confessions obtained through torture in trial. The CNDHs general recommendation did not suggest such a reform.
In contrast to the CNDH, some policymakers have recognized the importance of such reform. The Fox administration included concrete measures to address it in the comprehensive justice reform package it sent to Congress in 2004 (which was never approved).240 In 2006 the National Network in Favor of Oral Trialscomposed of individuals and civil society organizations advocating for an oral and adversarial judicial system in Mexicodrafted a comprehensive constitutional reform proposal that also addressed this problem, which was endorsed by a congresswoman and presented before Congress.241 The state of Chihuahua also included such measures as part of systemic reforms aimed at creating an oral and adversarial justice system, which was passed at the state level in 2006.242
The CNDH could have played an important role in securing the passage of these reforms. However, it failed to be a forceful advocate for the Fox proposal, which languished for several years in Congress and eventually died. It did not support the proposal by the National Network in Favor of Oral Trials.243 And, while the CNDH did provide some minimal assistance to the Chihuahua government, it did so only after the state prosecutor actively solicited it.244
After documenting the mistreatment and abuse of children in juvenile detention centers throughout Mexico, the CNDH failed to make concrete proposals that would have enabled government authorities to address the problem seriously.
In 2003 the CNDH documented a wide range of human rights abuses of detained children, including violations of the right to receive dignified treatment, the right to development, the right to health, and the right to non-discrimination.245 According to the CNDH, in a juvenile detention center in Tijuana, children were woken up at 4:00 a.m. every day to cook 3,300 pounds of tortillas for adult inmates at a nearby prison.246 In a detention center in Veracruz, children had not been separated by age or severity of crime and two seven-year-old boys were found living with 18-year-old adolescents. In a center in Sonora the children were forced to sleep on cement slabs because there were no mattresses.247 In Chiapas, the staff reported that the detention center often experienced water shortages.248 In Nuevo Leon, the facility was severely understaffed with only one social worker for 188 children.249
The report outlines a list of principles on the rights of juvenile detainees but it fails to provide any recommendations on the steps that should be takennor who should take themto implement these principles. Instead, it simply lists general principles on the treatment of juvenile detainees, which include that children should be given proper medical and psychological treatment, imprisonment should always be the last option for juveniles, and all inmates should be treated equally without discrimination.250
Since the reports publication in 2003, the mistreatment of children in prisons has continued. The United Nations Committee on the Rights of the Child recently expressed concern about the continuing mistreatment of juveniles in detention centers in Mexico. In 2006, in its analysis of Mexicos adherence to the Convention on the Rights of the Child, the committee stated that it was concerned at the very poor living conditions of juveniles detained in police stations and other institutions.251 More specifically, the committee noted that many juvenile detainees do not have access to educational programs.252 The report also expressed concern over the fact that corporal punishment is not explicitly prohibited in penal institutions.253
Recent cases also reveal that the abuse and mistreatment of children continues to be a serious problem within the Mexican prison system. On March 23, 2005, Jose Luis Blanco Ramirez, who was imprisoned in a federal juvenile detention facility, was assaulted by another prisoner. He died from severe respiratory infections and encephalitis after two doctors failed to correctly diagnose and treat his illness.254 Another example involves the case of 15-year-old Felipe Garcia Mejia, who was arrested in January 2004 in Mexico City. Garcia Mejia was charged with allegedly stealing a womans bag on the street and was incarcerated with adult inmates.255 While in detention awaiting trial, he was harshly beaten by another inmate. Due to his injuries, he died a few days after his arrest.256
Perhaps the clearest evidence that the CNDH can play a more active role in promoting human rights reform in Mexico are cases in which it has in fact chosen to do so. In several cases, the CNDH has succeeded in promoting serious debate and spearheading important changes in the Mexican legal system.
In 1994, for example, the CNDH carried out a study of the states responsibility to provide monetary compensations after it violates human rights, which led to a presidential reform proposal that was passed by the federal Congress.257 In 1998 the commission produced a comparative study of Mexican and international laws related to womens and childrens rights that served as the basis for substantial reforms passed by the state of Oaxaca and Mexico City.258
More recently, the CNDH contributed to promoting freedom of the press in Mexico. To protect journalists and communicators from having to reveal their sources, the CNDH sent a proposal to the Senate Human Rights Commission on how to redraft the Federal Criminal Procedures Code (Codigo Federal de Procedimientos Penales).259 The CNDH then issued a general recommendation explaining why the existing norms violated the right to freedom of expression.260 Congress passed the reform in 2006.261 The CNDH has also actively campaigned in support of legislation decriminalizing defamation, which was adopted by the Mexican Congress in March, and signed by President Calderon in April 2007.262
The CNDH has also actively promoted reforms to strengthen the protection of immigrants in Mexico. In 2005 it published a special report and in 2006 it issued a general recommendation that documented abuses committed against illegally detained migrants.263 It subsequently sent letters to the Mexican Congress calling for the elimination of article 123 of the General Law on Population (Ley General de Poblacion), which makes it a crime to enter Mexico illegally. The CNDH argued that, by criminalizing immigration, this article increased the vulnerability of foreign migrants, making it easier for military and law enforcement personnel to commit all types of abuses against undocumented migrants, who are mistreated, beaten, robbed, and even victims of sexual abuse.264 As of this writing, the proposed reform is still being debated.
The CNDH has also opposed the death penalty, which was abolished in Mexico in 2005 when Congress removed all references to it in the Constitution. 265 The CNDH has consistently held this view in various press releases, and in its annual reports since 2000.266 CNDH officials told Human Rights Watch that they also actively supported legislative initiatives aimed at eliminating the death penalty from the Mexican system.267
157 According to Article 6 of the Law on the CNDH, The CNDH has the following attributes: ( )VIII. Propose to the different government authorities in the country that they promote, within their jurisdictions, the changes and modifications to laws and implementing regulations, as well as to administrative practices, that, according to the National Commission, will lead to a better protection of human rights. Article 53 of the Law on the CNDH establishes that the CNDHs annual report may contain legislative proposals.
When it proposes legislation, the CNDH also acts in accordance with the Paris Principles. The Paris Principles state that these types of institutions shall examine the legislation and administrative provisions in force, as well as bills and proposals, and shall make such recommendations as it deems appropriate in order to ensure that these provisions conform to the fundamental principles of human rights; it shall, if necessary, recommend the adoption of new legislation, the amendment of legislation in force and the adoption or amendment of administrative measures. Paris Principles, Composition and guarantee of independence and pluralism, principle 3 (a) (i).
158 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.
159 House of Representatives, Boletin [Document] 2931, April 20, 2006, http://www3.diputados.gob.mx/camara/005_comunicacion/a_boletines/2006_2006/004_abril/20_20/2931_tendra_facultades_la_cndh_para_promover_inconstitucionalidad_contra_leyes_que_violen_derechos_humanos (accessed May 25, 2007).
160 Mexican Constitution, art. 102 B; Law on the CNDH, art. 2.
For instance, when defining torture, the CNDH has held that Given the public nature of the National Human Rights Commission and that it can only do what the laws of our country allow, we [define torture using] the elements of the crime, as established in the Federal Law to Prevent and Sanction Torture. Ricardo Hernández Forcada y María Elena Lugo Garfias, Algunas notas sobre la tortura en México [Some Notes About Torture], (Mexico, CNDH: 2004), p. 14.
161 Mexican Supreme Court, Pleno, Tesis LXXVII/99, Novena Época, Semanario Judicial de la Federación y su Gaceta, tomo X, November 1999, p. 46; Mexican Supreme Court, Pleno, Tesis P. IX/2007, Novena Epoca, Semanario Judicial de la Federación y su Gaceta XXV, April 2007, p. 6.
162 Jose Luis Soberanes, Por que el fuero de guerra [Why Military Jurisdiction], Reforma, October 18, 2007. Jose Luis Soberanes, the CNDH president, told Human Rights Watch that the mechanism to promote a change in the use of military jurisdiction to investigate and try human rights cases was a general recommendation, but that they have not used it to address this problem. Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007.
163 Mexican Constitution, art. 13.
164 Code of Military Justice of Mexico, art. 57.
165 According to the Supreme Court, service is the "realizacion de las funciones propias e inherentes al cargo que desempena." Mexican Supreme Court, Contradiccion de Tesis 105/2005-PS, September 28, 2005.
166 Human Rights Watch email communication with Migue Sarre, ITAM, Mexico City, November 18 and 26, 2007.
167 The U.N. Human Rights Committee (HRC), which monitors states compliance with the ICCPR, has repeatedly called on states parties to subject military personnel alleged to have committed human rights violations to civilian jurisdiction. For example, in 1997 it urged the Colombian government to take all necessary steps . . . to ensure that members of the armed forces and the police accused of human rights abuses are tried by independent civilian courts, specifically recommending that the jurisdiction of the military courts with respect to human rights violations be transferred to civilian courts. Concluding observations of the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add. 76, May 3, 1997, para. 34. The Committee has made similar recommendations to the governments of Chile and Peru, on the grounds that the wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel . . . contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations. Concluding observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add. 104, March 30, 1999, para. 9. See also U.N. Doc. CCPR/C/79/Add. 67, July 25, 1996, para. 23. Similarly, the Inter-American Court has held that [i]n a democratic State governed by the rule of law, the scope of authority of criminal military courts must apply on a limited and exceptional basis, and that [m]ilitary officers must be prosecuted for the commission of only those offenses and infractions that, because of their nature, have an adverse effect on the assets of the military. Inter-American Court, Durand and Ugarte Case, Judgment of August 16, 2000, para. 117.
168 United Nations, Question of the human rights of all persons subjected to any form of detention or prison and, in particular, torture and other cruel, inhuman, or degrading treatment or punishment. Report of Special Rapporteur Nigel Rodley, submitted pursuant to Resolution 1997/38 of the Commission on Human Rights, E/CN.4/1998/38/Add.2, January 14, 1998, paras. 86, 88[j].
169 CNDH, Recomendacion 8/2000, July 14, 2000.
170 CNDH, Recomendacion 17/2001, July 31, 2001.
172 Ibid. The CNDH recommended to the military prosecutor that he ask the Unit of Inspection and Control of the Army and Air Force (Unidad del Ejercito y Fuerza Aerea Mexicana) to begin an administrative investigation into the military officers involved in the acts alleged in the three cases. The CNDH also recommended that the military prosecutor initiate proceedings so that Yuliana Mercado Vargas and the families of Rodrigo Torres Silva and Esteban Martínez Nazario be paid damages. In addition, the CNDH recommended that the military prosecutor ensure that military officers were taught how to comply with human rights law when they carry out their work. Finally, the CNDH recommended that the military prosecutor include another suspect in its existing criminal investigation involving the murder of Gildardo Avila Rojas.
173 CNDH, Recomendacion 23/2004, April 5, 2004.
174 Ibid. A week later, the CNDH issued a press release highlighting that the PGJM had accepted its recomendacion and would initiate two formal investigations into these cases. CNDH, Press Release DGCS/053/04, April 13, 2004.
175 The CNDH recommended that the military prosecutor initiate an administrative investigation of the charges alleged and initiate the procedure to pay damages to Marquezs family. The CNDH also recommended that the military prosecutor give the appropriate orders so that the military will be trained in human rights law and the appropriate use of force. CNDH, Recomendacion 49/2005, December 21, 2005.
176 CNDH, Recomendacion 37/2007, September 21, 2007. In this case, the CNDH does not specify if the investigation must be carried out by civilian or military prosecutors, but it directs its recomendacion at the Minister of National Defense, requesting him to issue orders so that criminal investigations are initiated, integrated, and concluded. According to one press account, a civilian judge convicted three soldiers for the rapes. Hilda Fernandez Valverde, Juez Penal condena a tres militares por violacion [Criminal judge convicts three military officers of rape], El Universal, October 2, 2007. The CNDH president stated that the judges decision did not address all the human rights violations they had documented. CNDH, Press Release CGCP/141/07, October 3, 2007.
177 CNDH, Recomendacion 38/2007, September 21, 2007.
178 CNDH, Recomendacion 39/2007, September 21, 2007.
179 CNDH, Recomendacion 40/2007, September 21, 2007.
180 The CNDH also asked the military prosecutor for an update on an administrative investigation that had already begun against the military officers involved in the acts. The CNDH asked the prosecutor to request the Office of Inspection and Control of the Army and Air Force to investigate the prosecutor who had previously closed the criminal case. The CNDH stated that, if this office found that the prosecutor had engaged in inappropriate conduct when investigating and closing this case, criminal investigations should be initiated against this prosecutor. In addition, the CNDH recommended the military prosecutor that he issue the appropriate orders so that Rogaciano Miranda Gomez and the family of Prisciliano Miranda Lopez were paid damages. Finally, the CNDH recommended that the military prosecutor give the appropriate orders so that the military was trained in human rights law and the appropriate use of force. CNDH, Recomendacion 14/2005, June 16, 2005.
181 Mexican Constitution, art. 13.
182 The Mexican Supreme Court has ruled out the possibility that the same case can be tried simultaneously under military and civilian jurisdictions: neither the historical background of Article 13 of the Constitution, nor the social conditions prevailing when the article was created, nor the ideas expounded by the legislators at its drafting, nor the literal meaning of the words in its text can sanction the interpretation that when in a military crime a civilian is implicated, the military authorities will judge the members of the army and the civilian authorities will judge the civilian person; and therefore, the civilian authorities are the ones who shall exercise jurisdiction in a military process where there are civilians involved. Mexican Supreme Court, Pleno, Quinta Epoca, Semanario Judicial de la Federacion, Tomo XL, p. 1393.
183 In a document submitted to the Special Prosecutors Office, the PGJM wrote that it had detected the participation in the criminal activities analyzed in the present document of other persons who did not have military status but did have the status of government agents
184 See chapter IV of this report for an evaluation of the CNDHs work after documenting hundreds of disappearances committed during Mexicos dirty war.
185 According to the law, Para la determinacion de las categorias y grados de accidentes o enfermedades que den origen a retiro por inutilidad se aplicaran las siguientes tablas: Primera Categoria: ( ) 83. La seropositividad a los anticuerpos contra los virus de la inmunodeficiencia humana, confirmada con pruebas suplementarias mas infecciones por germenes oportunistas y/o neoplasias malignas [To determine the categories and levels of accident or disease that give rise to retirement due to inutility, the following tables will apply: First category ( ) 83. Being seropositive with respect to antibodies against the human immunodeficiency virus, confirmed with suplementary tests plus infections with opportunist germs and malignant neoplasia.] Ley del Instituto de Seguridad Social para las Fuerzas Armadas Mexicanas [Law of the Social Security Institute for the Mexican Armed Forces], July 2003, http://www.cddhcu.gob.mx/LeyesBiblio/pdf/84.pdf (accessed May 2007), art. 226, section 83.
186 Additionally, the CNDH said that the petitioners had presented administrative complaints against such decision, that they had received an appropriate compensation, and that the CNDH could not review a final decision related to the petitioners labor situation. CNDH document 017828 from file 2001/1763, signed by Raul Plascencia Villanueva, second visitador, September 28, 2001.
187 CNDH document V2/002155 from file 2001/2790, signed by Raul Plascencia Villanueva, second visitador, January 31, 2002.
188 Human Rights Watch interview with Omar P., Mexico City, December 1, 2006. (Real name is withheld to protect his privacy).
189 Letter signed by Concepcion Gonzalez Araujo, CNDH director of attention to the public, August 12, 2005 (additional information withheld).
190 Human Rights Watch interview with Omar P., Mexico City, December 1, 2006.
Omar P. told Human Rights Watch he did not know if the military ombudsman or the CNDH informed the commander in charge of his unit that he was living with HIV. In any case, preserving the confidentiality of medical information is protected by international law. The Economic, Social and Cultural Committee in its general comment 14 on the right to health, recognized the right to have personal health data treated with confidentiality. Para. 12. More broadly, the committee noted that the right to health is closely related to and dependent upon the realization of other human rights, as contained in the International Bill of Rights, including the right to privacy. Ibid., Para. 3. In citing to the right to privacy under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), the Committee stated that it gave particular emphasis to access to information because of the special importance of this issue in relation to health. Para. 12 fn. 8. According to Manfred Nowak in his treatise on the ICCPR, the right to privacy includes a right of intimacy, that is, to secrecy from the public of private characteristics, actions or data. This intimacy is ensured by institutional protections, but also includes generally recognized obligations of confidentiality, such as that of physicians or priests. Moreover, protection of intimacy goes beyond publication. Every invasion or even mere exploration of the intimacy sphere against the will of the person concerned may constitute unjustified interference. Manfred Nowak, UN Covenant on Civil and Political Rights: CCPR Commentary (Kehl am Rein: N.P. Engel, 1993), p. 296. The right to respect for a persons private life is also recognized in the American Convention on Human Rights, art. 11.
191 SEDENA document signed by Gerardo Clemente Ricardo Vega García, minister of national defense, August 26, 2005 (additional information withheld). On July 4, 2006, the military issued a provisional decision confirming his retirement due to inutility, given that he had tested positive for HIV. SEDENA document signed by Jose Luis Chavez Garcia, July 17, 2006 (additional information withheld).
192 Human Rights Watch interview with Pedro Morales, Omar P.s attorney, Mexico City, December 1, 2006; and Human Rights Watch email exchange with Pedro Morales, October 31, 2007.
The CNDH received the case on August 7, 2006. That same day, Omar P. filed another case with the CNDHs internal control organ, arguing that the CNDH had failed to protect him. On September 20, 2006, the CNDH concluded there was no evidence that the CNDH had leaked information on Omar P.s case because they could not find any reference to his disease in the CNDH files. Yet, they also informed that the CNDH staff involved in the anomalies was removed from their posts. CNDH letter signed by Raul Ernesto Violante Lopez, September 20, 2006.
193 Human Rights Watch interview with Omar P., Mexico City, December 1, 2006.
194 Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007.
195 Mexican Supreme Court, Amparo en Revision 2146/2005, Febrero 27, 2007; Mexican Supreme Court, Amparo en Revision 810/2006, February 27, 2007. Mexican Supreme Court, Tesis 2a/J. 197/2007, Semanario Judicial de la Federacion y su GacetaXXVI, October 2007, p. 241.
While the CNDH failed to recognize that these acts violated human rights, Mexican courts have held since 2003 that the old law should not be applied by the SEDENA to dismiss military officials living with HIV and that, when it did, the SEDENA violated the officials right not to be discriminated against, recognized in Mexican and international law. Case 338/2002, Decimo Tribunal Colegiado en Materia Administrativa en el Distrito Federal, August 29, 2003; Case 769/2003, Cuarto Tribunal Colegiado en Materia Administrativa del Primer Circuito, April 21, 2004.
196 Human Rights Watch interview with Ricardo Hernandez Forcada, director of the HIV and human rights program at the CNDH, Mexico City, March 21, 2007. The CNDH did issue a recomendacion against the Navy, arguing that it had violated the human rights of one military official who was forced to have an HIV test, which was later used to dismiss him. It did not, however, address the fact that the law that allows the Armed Forces to dismiss military officials with HIV is discriminatory. CNDH, Recomendacion 49/2004, August 27, 2004.
197 Mexican Supreme Court, Tesis 2a/J. 197/2007, Semanario Judicial de la Federacion y su GacetaXXVI, October 2007, p. 241.
198 All persons have the right to equality before the law and equal protection of the laws. The guarantees of equality before the law and equal protection of the laws prevent a government from arbitrarily making distinctions among classes of persons in promulgating and enforcing its laws. The right to non discrimination is established in various international human rights treaties. ICCPR, art. 26; ACHR, art. 24; ICESCR, art. 2 (2).
The UN Human Rights Committee has found that prohibitions on discrimination place a broad mandate on states to remedy unequal treatment in all areas of life, finding that Article 26 of the ICCPR prohibits discrimination in law or in fact in any field regulated or protected by the public authorities. (Human Rights Committee, General Comment 18: Nondiscrimination, 37th Session, 1989, U.N. Doc. HRI/GEN/1/Rev.1, p. 26.) The non-binding U.N. International Guidelines on HIV/AIDS and Human Rights enjoin states to enact or strengthen anti-discrimination and other protective laws that protect vulnerable groups, people living with HIV/AIDS and people with disabilities in the public and private sectors. (U.N., HIV/AIDS and Human Rights International Guidelines, Guideline 5.) The guidelines note, as well, that states should ensure that their laws, policies, programmes and practices do not exclude, stigmatize or discriminate against people living with HIV/AIDS or their families, either on the basis of their HIV status or on other grounds contrary to international or domestic human rights norms. (Recommendations for Implementation of Guideline 6.)
199 ICCPR, art. 26; Commission on Human Rights, The Protection of Human Rights in the Context of Human Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS), Resolution 1995/44, adopted without a vote, March 3, 1995. The right to non discrimination is also provided for in Article 2 of the International Covenant on Economic, Social and Cultural Rights.
200 Ministry of Communications and Transportation, Decreto por el que se reforman, adicionan y derogan diversas disposiciones de la Ley Federal de Telecomunicaciones y de la Ley Federal de Radio y Television [Decree by which varios provisions from the Federal Law on Telecommunications and the Federal Law on Radio and Television are reformed, added, and derogated], April 11, 2006.
201 The law is commonly refered to as Ley Televisa [Televisa Law], after one of the two main telecommunication companies in Mexico.
202 The decree also allowed government authorities to discretionarily demand extra information from applicants for non-commercial stations, and to request information form any government authority when investigating the background of non-commercial applicants.
203 They also contradict a United Nations recommendation included in the National Diagnosis on the Human Rights Situation in Mexico. Crear un organo publico y autonomo que dictamine la procedencia de las concesiones y permisos para operar estaciones de radio y television, mediante un procedimiento transparente; establecer condiciones de equidad para que las radios comunitarias y ciudadanas accedan a las frecuencias para cumplir con su funcion social; desarrollar un sistema autonomo de radio y television publicas; y establecer dentro de las leyes federales de Competencia Economica y de Telecomunicaciones, un capitulo especifico sobre radiodifusoras y señales de television. [Create an independent public organization that will dictate the conditions and licenses for operating radio and television stations, employing a procedure that is transparent; to establish equal requirements for community radio and citizens that use the radio for social purposes; to develop an autonomous system for public radio and television; and to establish, within the federal laws on Economic Competency and Telecommunication, a chapter that deals with the specific considerations regarding radio waves and television signals]. UN High Commission on Human Rights, General Recommendation, Diagnostico Sobre la Situacion de los Derechos Humanos en Mexico [Diagnosis on the human rights situation in Mexico], 2003, ISBN-968-7462-36-1, http://www.cinu.org.mx/prensa/especiales/2003/dh_2003/0prologoyrecomendaciones.pdf (accessed May 18, 2007), para. 14.
204 Principles on Freedom of Expression, approved by the Inter-American Commission on Human Rights at its 108th regular session in October 2000, http://www.cidh.oas.org/declaration.htm (accessed June 13, 2007), principle 12. See also International Mechanisms for Promoting Freedom of Expression Joint Declaration, Joint Communiqué by the Office of the Special Rapporteur on the Freedom of Express of Organization of American States, United Nations Special Rapporteur on Freedom of Opinion and Expression, and the Organization for Security and Co-operation in Europe Representative on Freedom of the Media, 2001, http://www.cidh.oas.org/relatoria/showarticle.asp?artID=48&lID=1 (accessed May 18, 2007).
According to the Inter-American Commission on Human Rights, One basic concern is that the only criteria the Government uses to grant frequencies are economic ones that effectively deny access to minority groups such as indigenous peoples, youth and women. The procedures for the granting and renewal of broadcast licenses should be clear, fair and objective, and the importance of the media in fostering informed participation in democratic processes should be given due consideration. Statute of the Inter-American Commission on Human Rights, O.A.S. Res. 447 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 88, Fifth Report on the Situation of Human Rights in Guatemala, OEA/Ser.L.V/II.111 doc.21 rev., Chap. IX, The Right to Freedom of Thought and Expression (2001).
205 See Statute of the Inter-American Commission on Human Rights, O.A.S. Res. 447 (IX-0/79), O.A.S. Res. 447 (IX-0/79), O.A.S. Off. Rec. OEA/Ser.P/IX.0.2/80, Vol. 1 at 88, Annual Report of the Inter-American Commission on Human Rights 2002, OEA/Ser.L.V/II.117 doc. 5 rev.1, Vol. III, chapter IV.E, paras. 39 and 43 (2003).
206 According to the Mexican Constitution, the government must expand the communications network to allow for the integration of the communities through the construction and widening of communication and telecommunication means. Create conditions so indigenous peoples and communities may acquire, operate, and administer media, as determined by specific laws on the issue. La federacion, los estados y los municipios, para promover la igualdad de oportunidades de los indigenas y eliminar cualquier practica discriminatoria, estableceran las instituciones y determinaran las politicas necesarias para garantizar la vigencia de los derechos de los indigenas y el desarrollo integral de sus pueblos y comunidades, las cuales deberan ser diseñadas y operadas conjuntamente con ellos. Para abatir las carencias y rezagos que afectan a los pueblos y comunidades indigenas, dichas autoridades tienen la obligacion de: ( ) extender la red de comunicaciones que permita la integracion de las comunidades, mediante la construccion y ampliacion de vias de comunicacion y telecomunicacion. establecer condiciones para que los pueblos y las comunidades indigenas puedan adquirir, operar y administrar medios de comunicacion, en los terminos que las leyes de la materia determinen. Mexican Constitution, art. 2, B, VI.
207 Public statement by the office in Mexico of the United Nations High Commissioner for Human Rights, Palabras del señor Americo Incalcaterra, Representate en Mexico de la Alta Comisionada de las Naciones Unidas para los Derechos Humanos, con motivo de la celebracion del dia Mundial de la Libertad de Prensa [Speech by Mr. Americo Incalcaterra, Representative in Mexico of the UNHCHR, during the celebration of Press Freedom Day], May 2, 2006.
208 Violations of the right to freedom of expression are implicit in the Commissions claim that the decree denies indigenous communities equal access to important means of communication. Letter from Xochitl Galvez Ruiz, general director of the Commission for the Development of Indigenous Peoples to Rodrigo Labardini Flores, general director of human rights and democracy at the Foreign Affairs Ministry, April 7, 2006. Other governmental agencies that have criticized the law for various reasons include: Federal Telecommunications Commission, Opinion de la Cofetel respecto a la Minuta de Decreto que reforma y adiciona a las LFTEL y LFRyTV [Opinion of the Federal Telecommunications Commission regarding the decree that reforms and adds sections to the Federal Law on Telecommunications and the Federal Law on Radio and Television], March 15, 2006; Communications and Transportation Ministry, Dictamen Tecnico. Iniciativa por la cual se reforma, adiciona y derogan diversas disposiciones de la Ley Federal de Telecomunicaciones y de la Ley Federal de Radio y Televisión [Technical analysis. Initiative that reforms, adds, and derogates various sections of the Federal Law on Telecommunications and the Federal Law on Radio and Television], April 4, 2005. Letter from Eduardo Perez Motta, president of the Federal Competition Commission, to Senador Hector Osuna Jaime, president of the Senates Communications and Transportations Commission, December 8, 2005.
209 The World Association of Community Radio Broadcasters (AMARC), Observaciones a las Reformas a la Ley Federal de Radio y Television y a la Ley Federal de Telecomunicaciones [Observations on the Reforms of the Federal Law on Radio and Television and the Federal Law on Telecommunications], p. 4. AMARC representatives told Human Rights Watch they repeatedly requested the CNDH to publicly comment on the reforms. Human Rights Watch interview with Aleida Calleja and Laura Salas, AMARC, Mexico City, November 28, 2006.
210 They argued, among other things, that the decree violated freedom of expression and the right of access to information, and undermined democratic plurality . Alejandro Madrazo and Jose Luis Zambrano, La Ley de Televisa ante la Suprema Corte [The Televisa Law before the Supreme Court], Isonomia. Revista de Teoria y Filosofia del Derecho [Isonomia. Magazine on Legal Theory and Philosophy], Vol. 26 (April 2007), p. 71. Madrazo and Zambrano were part of the legal team that challenged the constitutionality of the decree before the Supreme Court.
211 Mexican Supreme Court, Accion de Inconstitucionalidad 26/2006, June 7, 2007, pp. 447-459, 497-501, 551-568.
212 Demanda de accion de inconstitucionalidad [Brief to initiate lawsuit to declare the unconstitutionality of a norm], signed by Jose Luis Soberanes, representing the CNDH, May 24, 2007.
213 The CNDH brief only mentions three international human rights treaties the Convention on the Rights of the Child (CRC), the ICCPR, and the American Convention on Human Rights (ACHR) because it argues that only treaties in accordance with the Mexican Constitution are applicable. Yet, according to international law, a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. Vienna Convention on the Law of Treaties, art. 27.
214 The silence of certain legal instruments concerning the starting point for the right to life has been understood by bodies charged with interpreting them to imply that the right to life does not apply before the birth of a human being. In the 1980 Paton v. United Kingdom case, the European Commission ruled that for purposes of limitations on the right to life, the term everyone in Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (which protects everyones right to life) did not include the unborn. It further held that even if a fetus were entitled to some protection, Article 2 could not prevent a woman from obtaining an abortion at an early stage of pregnancy to protect her physical and mental health. Paton v. United Kingdom (1981), 3 E.H.R.R. 408 (European Commission on Human Rights), para. 17 and 23. See also European Court of Human Rights, Vo v. France, no. 53924/00, Judgment of July 8, 2004, available at www.echr.coe.int (accessed June 6, 2007).
215 See Human Rights Watch, International Human Rights Law and Abortion in Latin America, July 2005, http://hrw.org/backgrounder/wrd/wrd0106/ .
216 Article 4 (1) of the ACHR states that, Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception.
217 The commission found that the wording of the right to life in Article 4 was very deliberate and that the conventions founders specifically intended the in general clause to allow for non-restrictive domestic abortion legislation. Inter-American Commission of Human Rights, White and Potter (Baby Boy Case), Resolution No. 23/81, Case 2141, United States, March 6, 1981, OAS/Ser.L/V/II.54, Doc. 9 Rev. 1, 16 October 1981.
218 IACHR, Signatures and status of ratifications of the ACHR, undated, http://www.cidh.org/Basicos/English/Basic4.Amer.Conv.Ratif.htm (accessed June 5, 2007).
219 Demanda de accion de inconstitucionalidad [Brief to initiate lawsuit to declare the unconstitutionality of a norm], signed by Jose Luis Soberanes, representing the CNDH, May 24, 2007, p. 36.
220 Other rights affected by the denial of a pregnant womans right to make an independent decision regarding abortion are the right to security of person, the right to liberty, the right to privacy, the right to information, the right to be free from cruel, inhuman or degrading treatment, the right to enjoy the benefits of scientific progress, and the right to freedom of thought and religion. See Human Rights Watch, International Human Rights Law and Abortion in Latin America, http://hrw.org/backgrounder/wrd/wrd0106/.
221 Mexican Constitution, arts. 1 and 4.
222 The rights to health and health care are recognized in a number of international instruments. For example, the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides in Article 12(1) that states must recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health. The Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) also provides in Article 12(1) that States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning and in Article 14(2)(b) that states must ensure that women in rural areas have access to adequate health care facilities, including information, counselling and services in family planning. Article 24(d) of the Convention on the Rights of the Child (CRC) also provides that states must take measures to ensure appropriate pre- and post-natal health care for expectant mothers as part of the obligation to recognize childrens right to the highest attainable standard of health. Finally, the Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights (Protocol of San Salvador) provides in Article 10: Everyone shall have the right to health, understood to mean the enjoyment of the highest level of physical, mental and social well-being.
223 World Health Organization, Abortion: A Tabulation of Available Information, 3rd edition (Geneva: World Health Organization, 1997).
224 Lucia Rayas, Diane Catotti and Ana Cortes, Achieving ICPD commitments for abortion care in Latin America: The unfinished agenda (Chapel Hill, NC: Ipas, 2005), p. 6.
225 The rights to nondiscrimination and equality are set forth in a number of international human rights instruments. In addition to the basic provisions in Articles 2(1) and 3 of the ICCPR, Articles 2(2) and 3 of the ICESCR, and Article 1 of the ACHR, CEDAW comprehensively addresses discrimination against women. CEDAW defines discrimination against women in Article 1 as: [A]ny distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on the basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field.
226 The Committee notes with great concern that abortion, which is the second cause of maternal deaths in Colombia, is punishable as an illegal act. The Committee believes that legal provisions on abortion constitute a violation of the rights of women to health and life and of Article 12 of the Convention [the right to health care without discrimination]. CEDAW Committee, concluding comments on Colombia, U.N. Doc. A/54/38/Rev.1, Part I (1999), para. 393.
227 CEDAW Committee, General Recommendation 24, Women and Health (Article 12), U.N. Doc. No. A/54/38/Rev.1 (1999) (hereinafter General Recommendation 24), para. 14.
228 Ibid., para. 14.
229 Ibid., para. 31(c).
230 CEDAW Committee, concluding comments on Mexico, U.N. Doc. A/53/38/Rev.1, section I (1998), para. 426.
231 Article 16(1) of CEDAW provides, States Parties shall ... ensure, on a basis of equality of men and women . . . (e) The same rights to decide freely and responsibly on the number and spacing of their children and to have access to the information, education and means to enable them to exercise these rights.
232 CEDAW Committee, General Recommendation 21, Equality in Marriage and Family Relations (1992), para. 21.
233 CNDH, General Recommendation 10, November 17, 2005.
234 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.
235 The CNDH general recommendation was addressed at heads of federal government offices, the federal attorney general, the military prosecutor, heads of autonomous institutions, governors, the Mexico City mayor, state attorney generals, ministers, vice ministers, and general directors of public security at the federal and state levels." CNDH, General Recommendation 10, November 17, 2005.
236 Other recommendations include adopt measures to modify the articles in each provision of the criminal code that discusses torture, to issue orders to public officials to avoid any detention that could propitiate torture; to establish the necessary conditions to investigate torture cases; to issue instructions to ensure that victims obtain reparations; to adopt adequate measures to protect alleged victims of torture; to provide medical experts with video cameras to tape their analysis of alleged torture victims; and to strengthen the respective sections of human rights courses, periodic evaluations and selection processes of public security officers, related to physical and psychological torture. CNDH, General Recommendation 10, November 17, 2005.
238 Ricardo Hernández Forcada y María Elena Lugo Garfias, Algunas notas sobre la tortura en México [Some Notes About Torture] (Mexico: CNDH, 2004), p. 139.
239 CAT, art. 15.
240 The Fox package established that confessions would only have evidentiary value if given before a judge, and that a criminal defendant had to have access to defense counsel from the moment he or she was brought before the prosecutor, and that it should be an adequate and certified lawyer.
The measures proposed to address the problem of torture are part of a much broader reform package aimed at establishing an adversarial system of justice in Mexico. Not all the measures included in the package were positive from a human rights perspective. In fact, some were quite dangerous, such as a proposed reform of the Constitution that would have effectively suspended basic due process guarantees in cases involving organized crime. See the proposed reform to the Federal Code of Criminal Procedure, http://www.presidencia.gob.mx/docs/reformalegal_ssp.pdf, and the proposed reform to the Constitution, http://www.presidencia.gob.mx/docs/reformas_ssp.pdf (accessed April 2006).
241 National Network in Favor of Oral Trials, Anteproyecto de Reforma Constitucional en materia de juicios orales [Constitutional Reform Proposal related to Oral Trials and Due Process], undated.
242 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.
243 Human Rights Watch email communications with Edgar Cortez and Michel Maza, Red Nacional Todos los Derechos Para Todos y Todas, November 19 and 20, 2007. The Red Nacional Todos los Derechos para Todos y Todas is a member of the National Network in Favor of Oral Trials.
244 The Chihuahua state prosecutor, Patricia Gonzalez, told Human Rights Watch that the CNDHs support was limited to reviewing a draft of a law on special attention provided to victims of crime, and collaborating with her office on human rights training for her staff. Human Rights Watch telephone interview with Patricia Gonzalez, Chihuahuas Attorney General, Chihuahua City, June 8, 2007.
245 CNDH, Informe Especial Sobre La Situacion de los Derechos Humanos de los Internos en los Centros de Menores de la Republica Mexicana [Special Report on the Human Rights Situation of Prisoners in Facilities for Children in the Republic of Mexico], July 8, 2003, http://www.cndh.org.mx/lacndh/informes/espec/menores.htm (accessed on November 19, 2007). In 2002 the CNDH visited Mexicos 54 juvenile detention centers to evaluate the centers adherence to national and international human rights standards on juvenile detention. In addition to visiting the prisons, the CNDH undertook a detailed investigation of the juvenile detention system, including interviewing prison staff and surveying the inmates. Through the investigation and on site visits, the CNDH uncovered grave human rights abuses in many of Mexicos juvenile prisons which are documented in the 2003 report.
246 Ibid., p. 5.
248 Ibid., p.7.
249 Ibid., p.6.
250 Other principles listed in the CNDH report include: any child younger than 12 years old that breaks a law should be given social assistance rather than detention; the state must provide sufficient resources for the maintenance and operation of juvenile delinquent centers; detention centers should be located close to towns and cities to ensure the continued involvement of the childs family; juvenile centers should not be similar to adult prisons; people who work in juvenile centers should specialize in treating children; education, sports, and other activities should be made available to juvenile detainees; all facilities should have prevention and treatment centers for substance abuse.
251 United Nations Committee on the Rights of the Child, Consideration of Reports Submitted by States Parties under Article 44 of the Convention, Conclusions observations: Mexico CRC/C/MEX/CO/3, June 8, 2006, para. 70.
252 Ibid., para. 56.
253 Ibid., para. 35. In its recommendations, the Committee called on the government of Mexico to conduct a thorough study of the conditions of deprivation of liberty and take the necessary measures to significantly improve the living conditions of juveniles deprived of liberty. Ibid. para. 71.
254 On two separate occasions in the week before his death Blanco Ramirez had visited the prison doctor, and on both occasions the doctor failed to correctly diagnose and treat his illness. A day after his second doctors visit, Blanco Ramirez was rushed to the hospital. Doctors reported that when he arrived at the hospital he was in a coma and had severe brain damage. Blanco Ramirez died in the hospital later that day. In its investigation of the case, the CNDH found that the prisons inadequate treatment of Blanco Ramirezs illness violated his right to health and his right to dignified treatment. The day before his death, Blanco Ramirez was assaulted by another prisoner at the detention center. According to witnesses, the other minor hit Blanco Ramirez three times in the head. The director of the prison explained to the CNDH that these types of attacks occurred regularly and that prison staff tolerated them. The CNDH found that by allowing such acts of violence, the prison authorities were not adequately protecting the inmates mental and physical integrity and, thus, were violating their rights to dignified treatment. After Blanco Ramirezs death the director of the detention center filed a complaint with the prosecutors office claiming that the other inmate was responsible for his death. However, the coroners report attributes the boys death to his illness rather than the physical injuries from the assault. CNDH, Recomendacion 4/2006, March 17, 2006.
255 The prosecutors considered he had committed a serious crime and he was therefore put in pretrial detention pending his trial.
256 Human Rights Commission of Mexico City, Recomendacion 5/2004, June 24, 2004.
257 CNDH Gaceta [CNDH Gazette], 47, June 1994, p.16.
258 CNDH Gaceta [CNDH Gazette], 95, June 1998, p.14.
259 Letter from Jose Luis Soberanes to the members of the Senate Human Rights Commission, April 13, 2003.
260 In August 2004, the CNDH documented how government officials at the federal, state, and municipal levels, violated journalists and communicators right to freedom of expression by using court summons to force them to reveal their sources with the purpose of inhibiting them and forcing them not to publish the information they had. CNDH, General Recommendation 7, August 9, 2004.
261 The decree that establishes the new article was published in the Federal Official Gazette on July 6, 2006. Since only six states had similar laws, on June 8, 2006, the CNDH president sent a letter to the governors of all the other Mexican states, urging them to promote similar legislations in their own jurisdictions. For example, letter from Jose Luis Soberanes Fernandez to Patricio Jose Patron Laviada, governor of Yucatan, June 8, 2006. This information was provided to Human Rights Watch by CNDH staff, March 22, 2007.
262 The CNDH supported a proposal by the Working Group on Follow up to Aggressions Against Journalists and Media of the House of Representatives, which proposed eliminating the section of crimes against the honor from the Federal Criminal Code (Codigo Penal Federal), as well as modifying the Federal Civil Code (Codigo Civil Federal) to permit civil claims in these cases. Letters from Jose Luis Soberanes to Senator Manlio Fabio Beltrones Rivera, president of the Senate, November 28, 2006 and February 7, 2007. President Felipe Calderon signed the law and published it in the Federal Official Gazette on April 13, 2007. Human Rights Watch interview with Mauricio Farah Gebara, fifth visitador, and staff from the fifth visitaduria, Mexico City, March 20, 2007.
263 CNDH, Informe Especial De La Comision Nacional de los Derechos Humanos sobre la Situacion de los Derechos Humanos en las Estaciones Migratorias y Lugares Habilitados del Instituto Nacional de Migracion en la Republica Mexicana [Special Report of the National Human Rights Commission Regarding the Human Rights Situation in Migrants Stations and Offices of the National Institute of Migration in the Republic of Mexico], 2005, http://www.cndh.org.mx/lacndh/informes/espec/estmigrat.htm (accessed December 10, 2007). CNDH, General Recommendation 13, November 17, 2006.
264 Letter from Jose Luis Soberanes to Representative Omeheira Lopez Reyna, December 14, 2006; Letter from Jose Luis Soberanes to Senator Maria Teresa Ortuna Gurza, December 21, 2006.
265 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.B.b.
266 CNDH, Press Release DGCS/126/00, November 7, 2000; CNDH, Press Release DGCS/066/01, June 20, 2001; CNDH, Press Release DGCS/118/02 , August 15, 2002; CNDH, Press Release DGCS/015/03, February 5, 2003; CNDH Press Release DGCS/020/03, February 13, 2003. 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), p. 155. 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), p. 274. 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. 482. 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), p. 485. 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. 551.
267 Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007.