VI - Publicity
Public disclosure and dissemination of the information the CNDH collects on human rights cases is one of the institutions most important functions. To date, it has not played this role consistently or effectively.
Public disclosure of information on human rights cases is important for several reasons. First and foremost, negative publicity is the most effective tool the CNDH has for deterring future abuses and pressing authorities to reform problematic laws and policies. Since the CNDH cannot directly take punative action against authorities for violating human rights, the best it can do is to name and shame them into remedying past abuses and preventing future ones.
Public disclosure is also crucial for promoting public awareness of the countrys human rights problems and the role that state actors play in perpetuating or curbing them. Publicizing information on human rights abuses allows the general public to better monitor and evaluate the practices of their elected officials. It helps policy analysts, commentators, and ordinary voters assess public policies from a human rights standpoint. Finally, public access to the CNDHs information allows political leaders and the broader public to monitor the work of the CNDH itself.
While the CNDH does publish important information on some specific abuse cases and related policy issues, it does not do so for the vast majority of cases it handles.
A main reason for this failure is the CNDHs heavy reliance on conciliation agreements to resolve the abuse cases it documents. The CNDH uses these agreements to secure a commitment from state authorities to remedy abuses it has documented. In exchange for this commitment, the CNDH agrees not to publicly disclose its findings. While this friendly settlement mechanism undoubtedly can be useful for obtaining remedies for abuse victims, it does so at a significant cost. By not publicizing these cases, the CNDH fails to inform the public about human rights problems and limits whatever deterrence value its findings might provide.
The conciliation process therefore must be handled carefully to ensure that the advantages outweigh the disadvantages. The CNDH has used conciliation agreements effectively to obtain results in some cases. But it inexplicably chooses to withhold far more information than is actually needed to secure these agreements. And, given that the CNDH does not actively report on compliance with the agreements, it is unclear how much is actually gained by entering into these pacts of silence.
The CNDHs failure to publicize is not limited to conciliation agreements. It also uses overly broad confidentiality norms, approved by its own advisory council, to deny abuse victims and the general public access to crucial information it holds on human rights abuses.
Before issuing a public recomendacion on an abuse it has documented, the CNDH usually provides government authorities with the option of conciliating the case. In the conciliation agreement, the authority or institution accepts responsibility for the documented violation and agrees to implement remedies proposed by the CNDH.268 In return, the CNDH does not issue a public recomendacion and does not publicize the case.
The CNDH resolves the vast majority of cases in which it documents abuses in this way. Of the 1,277 cases the institution documented between 2000 and 2006, the CNDH resolved 1,121 through conciliation agreements, issuing only 156 public recomendaciones.269 (In January and February 2007 it issued two recomendaciones and signed 31 conciliation agreements.)270
The CNDH disemminates very little information on the conciliation agreements. Since 2000, its annual reports have indicated the number of conciliation agreements obtained and with which government institutions they have been signed.271 But the CNDH does not disclose the actual content of the agreements themselves. Consequently, the public rarely learns anything about the abuses the CNDH has documented or the remedies that offending institutions have agreed to pursue.
The CNDH does provide the victims with a copy of the agreement, which includes a summary of its findings on the case and the remedies agreed upon. The victims are free to disclose this information to the public.272 However, unlike the CNDH, they very often do not have the resources or wherewithal to publicize this information. In theory, victims could turn this information over to the media or nongovernmental organizations to publicize their cases, but in practice this is not a viable option for the majority of victims, who have no contact with either.
Conciliation agreements can be a useful tool for obtaining remedies for victims. Some government authorities may be willing to sign agreements, committing themselves to remedying abuses, as a way of avoiding the public shaming that published recomendaciones can entail.
The CNDH has used this tool effectively in diverse cases. For example, in one case the CNDH used the conciliation process to help an inmate in a high-security federal prison obtain a type of surgical operation that is usually not available in those prisons.273 In another case, the CNDH obtained a conciliation agreement with the Ministry of Defense on behalf of an officer facing criminal prosecution for alleged desertion.274 The military agreed to reevaluate the case and, upon doing so, concluded that there were no grounds for prosecution.275
But the effectiveness of conciliation agreements depends entirely on the degree of compliance by the state authorities that sign them. As with published recomendaciones, the CNDH can only ensure compliance by conducting follow-up on the cases.276 And as with recomendaciones, the CNDH does not always do so.277
For example, the CNDH closed the case of Carlos T., an undocumented immigrant who was harshly beaten by an immigration official, before the National Institute of Migration (Instituto Nacional de Migracion, INM) had complied with the terms of the conciliation agreement. After signing an agreement that requested the INM to provide, among other things, reparations to the victim, the CNDH deemed the INM to have complied with the agreement when the INM said it would pay the victim.278 According to the victims legal representative, however, the INM never complied with this part of the conciliation agreement.279 This left the victim with no reparations, and the public with no information on the case or the institution that had violated his rights.
Something similar occured when the CNDH reached an agreement in May 2006 with the Mexican Commission for Aid to Refugees (Comision Mexicana de Ayuda a Refugiados, COMAR) in the case of seven foreignerswho had requested refuge in Mexico. The conciliation proposal stated that COMAR had to adopt new internal rules, as well as measures to prevent human rights violations of those applying for refugee status in Mexico.280 The petitioners legal representative told Human Rights Watch that they had repeatedly requested information on what the CNDH had done to follow-up after the agreement was signedboth by phone and through lettersand did not receive a response for approximately one year.281 When it did respond, the CNDH considered COMAR had complied with the terms of the agreement after it informed the CNDH that it had requested its staff to carry out the measures proposed in the agreement.282 Yet according to the petitioners legal representative, COMAR had not implemented the terms of the agreement.283
Without information regarding the degree of compliance with remedies, it is impossible to gauge the overall effectiveness of conciliation agreements.
Even if there are benefits to the heavy reliance on conciliation agreements, the CNDH concedes far more than it needs toin terms of non-disclosure of informationin order to obtain them.
The CNDH could easily limit the disclosure of key detailssuch as the identity of specific officials, units, or offices implicatedin order to obtain agreements, while still publicizing general information about the conciliated cases. It could, for example, publish information on the cases in its annual reports, grouping them by types of violation committed by each state institution, with a basic account of the facts of the case and the types of reparations agreed upon. It could also publicly disclose government authorities degree of compliance with the terms of conciliation agreements.
There is no good reason for the CNDH not to disclose more information on these cases to the general public. The CNDH president told Human Rights Watch that conciliation agreements are not publicized because the law does not establish that they should be.284 But the law does not stipulate that these agreements should not be made public. And the principle of maximum disclosure, included in the federal transparency law to which the CNDH is subject, states that government entities are always presumed to be under an obligation to disclose information.285
The price paid for obtaining conciliation agreements is all the more problematic when it comes to more egregious abuses. According to its own rules, the CNDH is never supposed to use conciliation agreements to resolve cases involving serious violations.286 But in fact it does, thereby ensuring that its findings in these cases are also kept from the public. (Human Rights Watch was able to obtain copies of some conciliation agreements through nongovernmental organizations that represent victims of abuses and from individuals who requested information from government offices that conciliated cases.287)
Prior to 2003, this prohibition extended to all cases involving violations of the right to life, physical or psychological integrity, or others that are considered especially serious due to the number of victims or its possible consequences.288 Yet the CNDH nonetheless conciliated cases involving such violations. For example, it reached agreements with the Mexican Social Security Institute (Instituto Mexicano del Seguro Social, IMSS) in cases of medical malpractice that led to the death of a patient. In two cases documented by Human Rights Watch, the CNDHs conciliation proposal was limited to asking the IMSS to initiate an administrative investigation of the allegedly responsible doctors, and to provide the petitioners with monetary reparations.289
In another case, the CNDH proposed a conciliation agreement even after its own staff directly saw that Juda Enrique Contreras, a migrant from Central America, had injuries to his back and head.290 Contreras filed a complaint with the CNDH, claiming that municipal police had beat him excessively, causing injuries in [his] back, head and left leg, and that INM officials had threatened to beat him again after he said he filed a complaint before human rights. After sending a telegram to Contreras informing him that his case would be subject to the conciliation process, in September 2003 the CNDH sent the INM a conciliation agreement.291
In the case of Carlos T., the CNDH actually included on the first page of a conciliation agreement a transcription of language from its internal rules barring the use of conciliation agreements for cases involving violations to the right to life or physical integrity. The agreement then proceeded to detail how government officials had used excessive force against the petitioner, violating his right to physical integrity.292 The CNDH documented that an immigration official harshly beat Carlos T. until he fell to the floor, causing bruises, the loss of one tooth, and head injuries that required stitches. Carlos T. did not receive medical assistance until the following day, after he vomited blood.293
Even after it adopted a more limited definition of serious violation in 2003, the CNDH continued to conciliate such cases.294 In December 2003, for example, it proposed that the IMSS conciliate a case of medical 03, the CNDH continued to conciliate such cases.294 In December 2003, for example, it proposed that the IMSS conciliate a case of medical malpractice that resulted in the death of a patient. In this case, the proposal did not even mention the IMSSs obligation to provide the victim with monetary reparations.295
The problem of non-disclosure is not limited to cases resolved through conciliation agreements. Rather, as a result of the CNDHs overly broad application of confidentiality norms, it extends to other areas of the CNDHs work. 296
The CNDH considers all cases it has under review to be strictly confidential. According to CNDH rules, the investigations it carries out, as well as information and documentation in pending case files, are privileged. The CNDH, therefore, is not required to provide such information to third parties. And it only provides victims with information about their cases when those cases are already closed and the content of the files is no longer considered confidential.297
There is an obvious need to protect the confidentiality of petitioners and victims in cases in which release of information could jeopardize their lives, physical integrity, or well-being. The presumption that derives from the principle of maximum disclosure can certainly be overridden if the release of information could undermine the rights of others. But, in these cases, the CNDH could produce public versions of documents, blacking out personal data and other privileged and confidential information that could identify the petitioners and thus endanger their lives or physical integrity.298
Similarly, while it makes sense to limit public access to sensitive information regarding ongoing investigations, the CNDH goes so far as to deny all access to files for pending cases even to the victims themselves. For example, in a case involving the forced sterilization of 14 members of a Mepa indigenous community in Guerrero, the CNDH argued that information in files under study by the CNDH is privileged information and denied these men and their legal representative access to their own files.299
The same occurred in 2006 to Omar P., a military official dismissed from the military because he was living with HIV, who requested access to an internal investigation relating to the behavior of CNDH officials who handled his case. Omar P. had asked that the CNDH carry out an internal investigation to evaluate if CNDH staff had failed to seriously address his case.300 The CNDH did not provide him any access to this file.301
Another problem with the CNDH rules is that they limit disclosure of information on investigations of serious human rights cases. The Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental, transparency law) would seem to require that information found in investigations of serious human rights abuses may not be deemed privileged.302 However, under its rules, the CNDH may limit access to information on these cases until it concludes its investigation. The CNDHs implementing rules on the transparency law merely state that in these cases the information will be public once the respective recomendacion or report is issued.303 This approach is particularly problematic given that, as we saw above, the CNDH has used conciliation agreements to close cases involving serious abuses, without ever issuing a public report.
Obtaining information on concluded cases can also be difficult. The CNDHs implementing regulations on the transparency law allow its staff to withhold information on concluded cases for 12 years.304 Complete information is available on cases that end with a recomendacion or a report. But such cases are the exception, not the rule: between 2003 and 2006, for example, recomendaciones constituted less than 1 percent of all concluded cases.305
In 2003, when the Atalaya Program of the Technological Autonomous Institute of Mexico (Instituto Tecnologico Autonomo de Mexico, ITAM) requested access to the files of all cases that the CNDH concluded in January 2003, the CNDH denied it, arguing that the law governing the CNDH and CNDH implementing regulations on the transparency law allowed it to consider such information privileged.306 The Atalaya Program then presented an injunction, challenging the applicable regulations. A few weeks before the Supreme Court was going to decide the appeal, and two years after the initial request, the CNDH allowed the Atalaya Program to see the files that were mentioned in the injunction. In February 2006 the Supreme Court decided the case was moot, and did not address whether the challenged laws were constitutional.307 But when the Atalaya Program actually went to the CNDH to obtain copies of the requested information, the CNDH denied access to it, arguing that a 30-day deadline had expired (a deadline that, according to the Atalaya Program staff, neither they nor the Supreme Court had been made aware of.)308 As of this writing, the case is pending before the Inter-American Commission on Human Rights.309
The Federal Institute for Access to Official Information (Instituto Federal de Acceso a la Informacion Publica, IFAI)the mechanism created to interpret the transparency law and promote and regulate access to information within the executive branchhas held that entities subject to the law must provide access to information held in their files after they reach a final decision in a case. The transparency law explicitly says that judicial files or administrative procedures will be considered privileged information as long as they have not concluded.310 The IFAI has argued that once a resolution is public, individuals should have access to the entire file because the administrative investigation that led to the resolution has already concluded.311
Other federal entities have sought to use the CNDHs restrictive rules, which, unlike the transparency law, allow the CNDH to limit access to information regarding concluded cases that do not end in public recomendaciones or reports.
In two cases in which this happened, the IFAI granted access to the requested information, thereby allowing petitioners to obtain information on cases decided by the CNDH through a back door.312 In the first case, the Atalaya Program asked the Ministry of Agrarian Reform (Secretaria de la Reforma Agraria, SRA) for copies of the cases against them, which had been analyzed by the CNDH and had concluded between July 2005 and June 2006. The SRA responded that since the CNDHs rules of procedure and its implementing rules on the transparency law considered that information privileged, the petitioner should request that information from the commission. After the Atalaya Program staff made a similar request to the INM, the INM argued that it could not provide access to the information since the law on the CNDH stated that government offices had to communicate to the CNDH when an individual was requesting information that it considered privileged.
The IFAI has also granted access to other CNDH files possesed by government agencies. After the Atalaya Program asked the Ministry of Public Security (Secretaria de Seguridad Publica, SSP) for copies of cases concluded by the CNDH between June 2005 and July 2006 regarding abuses committed in one federal detention center, the SSP responded that the information was confidential because it could compromise public security, or even national security. In February 2007, the IFAI ruled that the SSP should provide the requested information, arguing it would enable citizens to analyze the governments performance on human rights.313
268 The CNDHs rules of procedure state the CNDH must seek an amicable settlement with authorities implicated in abuses in every case it receives, unless it is analyzing the possible commission of serious human rights violations. Internal rules of procedure of the National Commission of the Human Rights [CNDH, Rules of Procedure] (Reglamento Interno de la Comision Nacional de los Derechos Humanos), September 29, 2003, http://www.cndh.org.mx/normat/reglamen/regInter.pdf (accessed May 25, 2007), chapter V. These norms are in accordance with the Paris Principles. Paris Principles, Additional principles concerning the status of commissions with quasi-jurisdictional competence, principle (a).
269 Between 2000 and 2006, the CNDH received 58,663 written requests, out of which 23,696 were considered petitions of these, 156 ended in recomendaciones; 206 were sent to a state commission; 307 ended due to the CNDHs lack of jurisdiction; 341 were closed because the petitioner desisted of the case; 605 ended because there was no case; 692 cases were closed because they were accumulated to another case; 1,073 concluded due to lack of interest of the petitioner; 1,121 ended with conciliation agreements; 6,313 were resolved during the procedure; and 11,914 were remitted to other institutions or government agencies. CNDH, Balance del 2000 al 2006 en materia de derechos humanos en Mexico [A balance of the human rights situation in Mexico from 2000 to 2006], undated, http://www.cndh.org.mx/ (accessed May 18, 2007), p.4.
270 Out of 914 petitions received, the CNDH closed 831 cases. It issued 2 recomendaciones, decided it had no jurisdiction in 6, held the petitioner had desisted in 12, signed 31 conciliation agreements, closed 36 due to lack of interest of the petitioner, accumulated 47 cases, closed 77 because there was no human rights violation, 193 were solved during the procedure, and 427 were remitted to other institutions or government agencies. This information was provided to Human Rights Watch by Maximo Carvajal, CNDH general director of complaints and orientation, March 16, 2007.
271 There is no systematic information on the CNDH website on the number of cases that ended in this way prior to 2000. Available information, however, indicates that since the institution was created, many cases concluded with a conciliation agreement. In June 1991 the CNDH informed that 306 cases had concluded via conciliation during the previous semester. In December 1991 the CNDH informed it had solved 30 percent more cases between June and December 1991 than in the previous semester. In July 1993 the CNDH informed that in the previous year it had signed 1,081 conciliation agreements. In June 1994, the CNDH informed it had concluded 1,044 cases through conciliation agreements. CNDH Gaceta [CNDH Gazette], 91/11, June 15, 1991, p. 16; CNDH Gaceta [CNDH Gazette], 91/17, December 1991, p. 16; CNDH Gaceta [CNDH Gazette], 93/36, July 1993, p. 11; and CNDH Gaceta [CNDH Gazette], 47, June 1994, p. 13. 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).
272 Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007.
273 Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007.
274 CNDH document V2/30704 from file 2004/3201/GRO/2/SQ, October 21, 2005.
275 Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visitadora, and staff from the second visitaduria, Mexico City, March 22, 2007.
276 According to Article 122 of the CNDH rules of procedure, There must be follow up to all files concluded through a conciliation process during 90 days, with the exception of those cases in which the authority requested an extension of the deadline to comply with the agreement. The National Commission will establish the extension of that deadline through an agreement signed by [the chief investigator]. According to Article 36 of the Law on the CNDH, If a satisfactory solution is reached or if those responsible accept their responsibility, the National Commission will take note and close the file, which could be reopened if the victims express to the National Commission that the agreement has not been fulfilled in 90 days. According to Article 121 of the CNDH rules of procedure, If during the 90 days after the acceptance of the proposal, the authority did not fully comply with it, the victim may inform the National Commission so that it decides whether to reopen the file and determine the corresponding actions. In case of unjustified lack of fulfillment of a conciliation agreement, [the chief investigator] may agree to reopen the file, which [he or she] will inform the victim and the authority identified as responsible.
277 In some cases, the CNDH has issued a recomendacion because the government authority did not accept or implement the conciliation proposal. For example, when the Mexico City attorney generals office did not accept the CNDHs conciliation proposal in the case of the prolonged detention of two children who were accused of stealing two chocolate bars, the CNDH issued its recomendacion 41/2006. CNDH, Recomendacion 41/2006, November 14, 2006. Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007.
Another example is the case of Fernando Javier Huicab González, who had boats that were confiscated by the Federal Prosecutors Office to Protect the Environment (Procuraduría Federal de Protección al Ambiente, PROFEPA). The PROFEPA never returned him the boats because they were stolen. Given that the PROFEPA did not comply with a conciliation agreement they had signed, the CNDH issued a recomendacion. CNDH, Recomendacion 2/2004, January 15, 2004.
278 Conciliation agreement proposed by the CNDH, May 15, 2002. (Real name of the petitioner, document and file numbers are withheld to protect the petitioners privacy.) CNDH, document number TVG/231/2003, December 11, 2003. CNDH, document TVG/230/2003, December 10, 2003.
279 The petitioners also disagreed with the terms of the agreement because they consider that reparations should include compensation for the injuries suffered by the victim, as well as compensation for the work that Carlos T. was unable to carry out while he was injured. The CNDH, on the other hand, considered that the INMs interpretation that it only had to pay monetary reparations to compensate for the injuries suffered by the victim was correct. Human Rights Watch telephone interview with Elba Coria, deputy coordinator of legal defense of Sin Fronteras, Mexico City, June 18, 2007. Human Rights Watch email communication with Elba Coria, July 3, 2007.
280 The petitions were presented before the CNDH on January 25 and 27, February 2, 20, and 15, April 11, and November 28, 2005. The CNDH found that COMAR had exceeded the term it had to respond to these requests, keeping the petitioners confined to migrants stations for periods of up to 122 days; had issued decisions without appropriate motivation; and had not properly integrated the files that were presented to the body that would make the final decision on each case. CNDH document that contains the conciliation proposal (document and file number withheld to protect the privacy of the petitioners), May 19, 2006.
281 Human Rights Watch telephone interviews with Marta Villareal, ITAM, Mexico City, June 18, 2007, and January 18, 2007.
282 CNDH document 41008 from file 2005/472/DF/5/SQ, December 7, 2007.
283 Human Rights Watch telephone interview with Marta Villareal, ITAM, Mexico City, January 18, 2007.
284 Human Rights Watch interview with Jose Luis Soberanes, CNDH president, Mexico City, March 21, 2007. Other CNDH staff gave Human Rights Watch the same reason for not publicizing information on these cases. Human Rights Watch interview with Andres Aguilar Calero, third visitador, Mexico City, March 16, 2007; Human Rights Watch interview with Susana Thalia Pedroza de la Llave, second visidatora, and staff from the second visitaduria, Mexico City, March 22, 2007.
285 See chapter III on Mexicos obligations under international law and their applicability to the CNDH.
286 The CNDH rules of procedure prohibit conciliation agreements if there is a serious infraction to a persons fundamental rights. According to Article 119, there will be no amicable settlement in those cases mentioned in Article 88, which states that, when [the case] is about a serious infraction to a persons fundamental rights, such as attempts to affect the persons life, torture, forced disappearance and all other crimes against humanity, or when the previously mentioned infractions were carried out against one community or social group.
287 During our interviews with CNDH staff, CNDH officials consistently claimed that they could not conciliate cases of serious human rights abuses. Human Rights Watch did not request an explanation from these officials regarding why the CNDH had conciliated the specific cases mentioned in this section of the report.
288 Article 117 of old CNDH Rules of Procedure.
289 CNDH document 007929, April 10, 2003; and CNDH document 015038, July 29, 2003. (The file numbers and names of the victims are crossed out from the original document to protect the victims identity).
290 CNDH document labeled page 018 from file 2003/874-1, signed by Hector Perez Garcia, director of the South Frontier Office, and David Sanchez Reyes, deputy official, March 7, 2003.
291 The CNDH proposed that the INM initiate an administrative procedure against those presumably responsible and that it adopt measures to ensure that private security companies do not participate in the detention of foreigners, which they found had occurred in this case. CNDH document 019170 from file 2003/874-1, September 12, 2003. At the end of the month, the CNDH informed Contreras that since INM had accepted the proposal four days before, his case had concluded. CNDH document 196 from file 2003/874-1, September 30, 2003.
292 Conciliation agreement proposed by the CNDH, May 15, 2002. (Real name of the petitioner, document and file numbers are withheld to protect the petitioners privacy).
293 In May 2002 the CNDH submitted a conciliation proposal to the INM and the Ministry of Public Security of Mexico City (Secretaria de Seguridad Publica del Distrito Federal, SSP-DF). The CNDH requested the INM and the SSP-DF, among other things, to provide information to prosecutors in order for them to carry out a criminal investigation of the case, and to inform the internal offices in charge of carrying out administrative procedures. The proposal requested the INM to inform the federal attorney generals office about the case for it to initiate a criminal investigation, to provide information to substantiate an administrative investigation, to instruct its staff in Mexico City to carry out capacity building courses and provide medical assistance to detained individuals, and to pay monetary reparations. The proposal asks the SSP-DF to initiate an administrative investigation, and to informe the Mexico City attorney generals office about the case so it initiates a criminal investigation. Ibid.; Letter from Sin Fronteras to Jose Luis Soberanes, January 3, 2002; CNDH, Acta circunstanciada [Official Record], January 8, 2002; CNDH, Acta circunstanciada [Official Record], May 10, 2002.
294 The CNDH modified its rules of procedure on September 29, 2003. The new norms prohibit conciliation agreements if there is a serious infraction to a persons fundamental rights. According to Article 119 of the new CNDHs rules of procedure, there will be no amicable settlement in those cases mentioned in Article 88, which states that, when [the case] is about a serious infraction to a persons fundamental rights, such as attempts to affect the persons life, torture, forced disappearance and all other crimes against humanity, or when the previously mentioned infractions were carried out against one community or social group.
295 CNDH document 025879, December 5, 2003. (The file number and name of the victim are crossed out from the original document to protect the victims identity).
296 The CNDH is subject to the Federal Law on Transparency and Access to Official Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental), or transparency law that was signed into law in June 2002. The transparency law provided detailed rules and mechanisms to obtain information held by the executive branch, but other major government entitiesincluding the judiciary, Congress, the CNDH, and the Federal Electoral Institute (Instituto Federal Electoral)had to develop its own. The CNDH adopted its implementing regulations in April 2003 and they entered into force on June 12, 2003. Rules of the National Human Rights Commission on Transparency and Access to Information (Reglamento de Transparencia y Acceso a la Información de la Comisión Nacional de Derechos Humanos), April 29, 2003, http://www.cndh.org.mx/normat/transp/transp.asp (accessed February 2007).
Parts of this section were previously published in Human Rights Watch, Lost In Transition: Bold Ambitions, Limited Results Under Fox, May 2006, http://hrw.org/reports/2006/mexico0506/mexico0506web.pdf, pp. 54 - 56.
297 According to Article 9 of the CNDH implementing regulations on transparency: According to Article 4 of the Law on the CNDH, and in accordance with its Article 14(I), information or documentation in files ( ) pending before the CNDH is considered privileged information.
According to Article 4 of the Law on the CNDH: The CNDH staff shall handle confidentially information and documentation related to the issues it may evaluate.
298 To do so, the CNDH could follow the guidelines prepared by the Federal Institute on Access to Official Information (Instituto Federal de Acceso a la Informacion, IFAI) on how to elaborate public versions of documents. IFAI, Lineamientos para la Elaboracion de versionas publicas, por parte de las dependencias y entidades de la Administracion Publica Federal [Guidelines for the elaboration of public versions by government offices of the executive branch], April 13, 2006, arts. 4 and 5.
299 Their requests, which aimed at obtaining information that was necessary for a civil claim to obtain reparations for the human rights violations they had suffered, were denied on August 4, 2005. Letter from the petitioners to Andres Calero Aguilar, head of the Liaison Unit of the CNDH, received by the CNDH on July 6, 2005. CNDH, document CI/ST/116/05 from file 2005/82-T; August 4, 2005. Letter from Claudia Ordoñez Viquez to Andres Calero Aguilar, head of the Liaison Unit of the CNDH, received by the CNDH on July 6, 2005. CNDH, document CI/ST/117/05 from file 2005/83-T; August 4, 2005.
After an appeal, on November 4, 2005, the CNDH held it would only provide copies of the information that had been sent to it from the Guerrero state human rights commission because they considered that this case was about serious human rights violations. However, it confirmed that they could not provide copies of the CNDH investigation because it was confidential. Letter from Claudia Ordoñez Viquez to the head of the first visitaduria, August 30, 2005 (names withheld from the original document); CNDH, document 32999 from file 2005/9-RT, November 4, 2005.
300 See chapter V of this report for a description of Omar P.s case.
301 CNDH documents signed by Raul Ernesto Violante Lopez, CNDH director of norms and responsibilities, October 13, 2006 and November 9, 2006 (additional information withheld).
After Omar P. insisted, the CNDH sent a third letter saying that they would not be able to provide copies of such file because the CNDH had never opened one related to that investigation. CNDH document signed by Raul Ernesto Violante Lopez, CNDH director of norms and responsibilities, November 29, 2006 (additional information withheld).
302 The transparency law provides that in case of severe violation of fundamental rights or crimes against humanity the information in the investigations may not be deemed privileged. Transparency law, art. 14.
303 CNDH implementing regulations on the transparency law, art. 10.
304 CNDH implementing regulations on the transparency law, art. 10.
The CNDH has recently held that this norm is being revised. Pablo Escudero Morales and Jose Galindo Rodriguez, Transparencia y Rendicion de Cuentas en la CNDH, asi como su funcion transversal de control en la administracion publica [Transparency and Accountability in the CNDH, as well as its transversal role controlling the public administration] (Mexico City: CNDH, 2007), p. 89.
305 According to the CNDH annual reports, in 2003 it concluded 3,342 cases and only 22 were recomendaciones (0.65 percent); in 2004 it concluded 3,800 cases and only 39 were recomendaciones (1.02 percent); and in 2005 it concluded 4,717 cases and only 28 were recomendaciones (0.59 percent). 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).
According to the CNDHs annual evaluation of its strategic indicators, 0.6 percent of the cases concluded in 2006 ended in recomendaciones. CNDH, Evaluacion de los Indicadores estrategicos 2006 [Evaluation of the Strategic Indicators for 2006], undated, http://www.cndh.org.mx/normat/transp/transp.htm (accessed May 25, 2007).
306 Letter signed by Graciela Sandoval Vargas of the technical secretariat of the CNDHs information committee with reference to file 2003/3-T, July 28, 2003.
307 Mexican Supreme Court, Amparo en Revision 345/2004, February 10, 2006.
308 Human Rights Watch telephone interview with Miguel Sarre and Sandra Serrano, Programa Atalaya, June 20, 2006.
309 Petition presented by Miguel Sarre before the Inter-American Commission on Human Rights, August 2, 2006.
310 Transparency law, art. 14, IV.
311 See, for example: IFAI, Decision on case 661/06, May 17, 2006; IFAI, Decision 2405/06, November 22, 2006; IFAI, Decision on case 786/06, June 21, 2006.
And the implementing regulations of the transparency law issued by the Mexican Supreme Court state that files of concluded judicial cases may be consulted by any person during business hours in the places where they are located, and limits what can be considered privileged information. Mexican Supreme Courts implementing regulations of the transparency law, art. 6.
312 IFAI, Decision on case 2532/06, December 6, 2006. IFAI, Decision on case 2542/06, December 6, 2006.
313 IFAI, Decision on case 2570/o6, February 21, 2007.