Human Rights Council
29 December 2014
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez
Mission to Mexico*
The Special Rapporteur visited Mexico from 21 April to 2 May 2014.
Torture is generalized in Mexico. It occurs especially from the moment when a person is detained until he or she is brought before a judge, and is used as punishment and as a means of investigation. The Special Rapporteur identified a number of reasons for the weakness of preventive safeguards and recommends measures for addressing them. He also observed serious problems in conditions of detention, especially overcrowding.
The Special Rapporteur calls on the Government to implement his recommendations promptly and on the international community to assist Mexico in its efforts to eliminate torture and ill-treatment, end impunity and guarantee victims comprehensive redress.
[English and Spanish only]
Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment on his mission to Mexico (21 April to 2 May 2014)
I. Introduction 1–5 3
II. Legal framework 6–19 3
A. International level 6–7 3
B. Regional level 8 4
C. National level 9–19 4
III. Assessment of the situation 20–75 6
A. Torture and ill-treatment 23–31 7
B. Investigations 32–41 8
C. Safeguards 42–60 11
D. Conditions of detention 61–71 15
E. Migrants 72–73 17
F. Persons with disabilities 74–75 17
IV. Conclusions and recommendations 76–88 18
A. Conclusions 76–79 18
B. Recommendations 80–88 19
1. The Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment visited Mexico from 21 April to 2 May 2014 to assess the situation of torture and ill-treatment and work with the State to prevent and eradicate it.
2. The Special Rapporteur held meetings with senior officials of the Secretariats of Foreign Affairs, the Interior, National Defence, the Navy and Health; the Office of the Attorney General of the Republic (PGR); the Senate and the Chamber of Deputies; the Supreme Court of Justice; the Council of the Judiciary; and the National Human Rights Commission (CNDH). He met with officials of the authorities, attorney general’s offices and human rights commissions of the states visited — the Federal District, Nuevo León, Chiapas and Baja California — and took part in the National Conference of Attorneys General in Nuevo Vallarta. He also met with civil society representatives, victims and their family members and members of international organizations and the diplomatic community.
3. The Special Rapporteur thanks the Government for inviting him to visit Mexico, a sign of its openness to independent and objective scrutiny, and thanks the authorities for cooperating fully with him during his visit. Despite situations where excessive preparations had been made for his visit, in general the Special Rapporteur had unrestricted access to detention centres, in keeping with his Terms of Reference.1 The Special Rapporteur regrets that he was not allowed access to the State Investigation Agency of the Nuevo León Attorney General’s Office, especially since he received a number of complaints of torture having occurred there.
4. The Special Rapporteur visited prisons, pretrial detention, arraigo (investigative or pre-charge) detention centres, juvenile detention centres, a psychiatric hospital, a social assistance centre and a migrant holding centre.
5. The Special Rapporteur thanks the Office of the High Commissioner for Human Rights in Mexico for its valuable assistance and civil society and the international community for their fundamental contributions, and expresses his solidarity with victims and their representatives.
II. Legal framework
A. International level
6. Mexico has ratified the International Covenant on Civil and Political Rights, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Convention on the Rights of the Child, the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women, the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the International Convention on the Elimination of All Forms of Racial Discrimination and the International Convention for the Protection of All Persons against Enforced Disappearance.
7. Mexico has ratified the Rome Statute of the International Criminal Court, although article 21 of its Constitution establishes that “the Federal Government may, with the approval of the Senate in each case, recognize the jurisdiction of the International Criminal Court”. This condition prevents it from collaborating fully with the Court and contravenes the provisions of the Statute that establish the Court’s ipso jure jurisdiction and prohibit any reservation or interpretative statement.
B. Regional level
8. Mexico has ratified the principal human rights treaties of the Organization of American States (OAS), including the American Convention on Human Rights, the Inter-American Convention to Prevent and Punish Torture, the Inter-American Convention on Forced Disappearance of Persons and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belém do Pará). It recognizes the jurisdiction of the Inter-American Court of Human Rights.
C. National level
9. The Constitution prohibits “flogging, beating with sticks, torture of any kind” and other “unusual or extreme penalties” and punishes “any ill-treatment during arrest and confinement”.2 It also states that incommunicado detention, intimidation or torture is prohibited and punishable by criminal law.3
10. A set of constitutional amendments enacted on 10 June 2011 affirmed that no derogation can be made from the prohibition of torture and the remedy of amparo (protection), even in states of emergency. The amendments accorded constitutional status to the human rights norms contained in international treaties, including the obligation to prevent, investigate, punish and redress violations, and ordered that human rights obligations were to be interpreted pro homine.4 They expanded the investigatory powers of the National Human Rights Commission and established that the prison system must be organized on the basis of respect for human rights and social reintegration.5 The Special Rapporteur regrets that important elements of these amendments are still awaiting implementing legislation and calls on the Government to expedite their full implementation. Another set of amendments, adopted on 6 June 2011, broadened the scope of the remedy of amparo to include the protection of rights recognized in the Constitution and in treaties ratified by Mexico.6
11. In 2008, another set of constitutional amendments laid the bases for the transition from inquisitorial to adversarial criminal proceedings, which must apply throughout the country by 2016. The amendments enshrined in the Constitution important preventive safeguards, including the obligation to record a person’s detention immediately, the inadmissibility of evidence obtained in violation of fundamental rights and the admission solely of evidence presented in court hearings, with exceptions for evidence submitted prior to the trial and for cases of organized crime. They also affirmed the inadmissibility of confessions made in the absence of defence counsel and endorsed the principles of presumption of innocence and access to defence counsel from the moment that a person is detained.
12. However, the 2008 amendments also enshrined in the Constitution practices that interfere with fulfilment of the obligation to prevent and eradicate torture. For instance, it accorded constitutional status to the procedure of arraigo penal (pre-charge detention in criminal cases) in cases of organized crime. Under article 16 of the Constitution, pre-charge detention may be imposed for 40 days, renewable for a further 40 days, with judicial authorization, “whenever necessary for the success of the investigation, the protection of persons or legal rights” or when there is reason to believe that the accused might evade justice. The article also permits detention without a judicial warrant in cases of flagrante delicto, “quasi-flagrante delicto” and urgent cases involving serious offences. Article 19 authorizes pretrial detention without formal charges for cases of organized crime and serious offences.
13. Under federal jurisdiction, torture is defined in the Federal Act on the Prevention and Punishment of Torture, article 3 of which establishes that a public servant commits the crime of torture who, acting in that capacity, inflicts severe pain or suffering, whether physical or mental, on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he has committed or is suspected of having committed or coercing him into engaging or not engaging in a given conduct. The penalty is 3 to 12 years’ imprisonment, plus fines and debarment from public office. An individual who, at the explicit or implicit instigation or with the implicit or explicit authorization of a public servant, inflicts severe pain or suffering, whether physical or mental, on a detainee shall also be punishable, as shall the public servant who instigates or authorizes him. The Act requires public servants to report any torture that comes to their knowledge in the course of their duties.
14. The federal definition of torture does not meet the standards of article 1 of the Convention against Torture and article 2 of the Inter-American Convention to Prevent and Punish Torture. The Federal Act does not refer to torture committed for any reason based on discrimination of any kind and requires that, when an individual commits the crime, the person tortured must be a detainee, thereby unduly restricting the Act’s application. While the international definition only requires proof of intent to cause suffering, the Act requires proof of intent with respect to the purpose for which the torture is committed. The Special Rapporteur draws attention to the current discussion in Parliament of a bill that would remove these discrepancies by using the definition contained in the Inter-American Convention. The choice of the latter definition is in keeping with article 1 of the Convention against Torture, since it offers greater guarantees.
15. All the states define the crime of torture in their legislation, but in most cases these definitions likewise fail to meet international standards. Some state laws are modelled on the Federal Act, while others have their own shortcomings or contain appropriate definitions but impose very light penalties, as in the case of the state of Chiapas. With a few exceptions, such as the Federal District, which uses a definition of torture that comes fairly close to the international definition, the definitions used in state laws also need to be amended to reflect the definition, guarantees and penalties demanded in international norms.
16. The Federal Act recognizes important preventive safeguards, such as the inadmissibility of evidence or statements obtained under torture and confessions made in the absence of legal counsel and the obligation on examining physicians to report any torture observed. The Act organizing the Office of the Attorney General of the Republic and the Federal Act on the Public Defender’s Office require the staff of those institutions to prevent and report any torture that they observe in the course of their duties.
17. The Special Rapporteur draws attention to the adoption in January 2013 of the General Victims Act, which guarantees the right to redress of victims of human rights violations, including torture and ill-treatment. The Act created the National Victims Assistance System, headed by the President of the Republic and operated by the Victims Assistance Executive Commission, which has a Committee on Torture that assists victims and helps make policy. The Act created a National Victims Register (currently being set up) and a Fund for Assistance and Comprehensive Redress and guarantees advice and care for victims at federal and local level.
18. The National Code of Criminal Procedure was published in March 2014. The Code regulates adversarial proceedings and must be adopted and implemented by state legislatures by 2016 at the latest. It strengthens constitutional guarantees and establishes safeguards for preventing torture and ill-treatment, including: access to and confidential communication with a lawyer from the moment when a person is detained; the right of detainees to notify family members, to undergo a medical examination, to be informed of their rights and the acts of which they are accused and not to be paraded before the media; creation of the position of supervisory judge to verify that detention is lawful; and sana crítica (sound judicial discretion) in the weighing of evidence. The Special Rapporteur regrets that the Code continues to authorize the Public Prosecution Service to detain a person without judicial authorization in urgent cases involving serious offences, broadly defined as those giving rise to pretrial detention without formal charges or an average penalty of more than 5 years’ imprisonment.
19. In June 2014, the Code of Military Justice was amended to exclude from military jurisdiction cases of civilian victims of human rights violations, thereby restoring the military courts’ practice of declining jurisdiction according to criteria established by the Supreme Court of Justice. The Special Rapporteur regrets that the amendment continues to assign to military jurisdiction cases of human rights violations in which both the perpetrator and the victim are military personnel. This does not comply fully with international standards or with the case law of the Inter-American Court of Human Rights.
III. Assessment of the situation
20. Mexico is facing a complex public security situation. Organized crime poses a challenge to the authorities and the population. Since 2006, in the context of the so-called “war on drug trafficking”, measures have been taken to regulate detention, investigation and the fight against organized crime, including the deployment of armed forces to perform law enforcement functions, with the number of military personnel thus deployed reaching 50,000 in 2012. The National Human Rights Commission recorded an increase in the number of complaints of torture and ill-treatment since 2007 and reported a peak of 2,020 complaints in 2011 and 2,113 in 2012, compared with an annual average of 320 in the six years prior to 2007. Between December 2012 and July 2014, the Commission received 1,148 complaints of violations attributable to the armed forces alone.
21. The Government and the National Human Rights Commission reported that the number of complaints of human rights violations has declined recently. Measures have been taken that contribute to crime prevention and the development of security policies with a human rights perspective. These include a military pullback in some areas, restrictions on arraigo detention, constitutional amendments, legal and jurisdictional developments and human rights training.
22. The strategy of militarized law enforcement is ongoing, however, as can be seen from the fact that over 32,000 military personnel are still performing tasks customarily performed by civilian forces. Moreover, soldiers who have retired or are on leave have joined civilian security forces and an army-trained police force has been created. This threatens the principles that must govern law enforcement and the guarantees of detainees.
A. Torture and ill-treatment
23. Torture and ill-treatment are generalized in Mexico. The Special Rapporteur received many credible complaints from victims, family members and their representatives and persons deprived of their liberty and was informed of a number of already documented cases that point to the frequent use of torture and ill-treatment in various parts of the country by municipal, state and federal police, state and federal ministerial police and the armed forces. Most victims are detained for alleged links with organized crime. This situation is exacerbated by the state of exception suspending the constitutional and legal rights of detainees with alleged links to organized crime, which includes arraigo detention, pretrial detention without formal charges and the ability of the Public Prosecution Service to extend the period during which a person is detained or held before being brought before a judge.
24. It is difficult to know the real number of cases of torture. At present, there is no national register of cases and each state has its own data. Moreover, many cases are not reported out of fear of reprisals or distrust of the authorities and there is a tendency to classify acts of torture and ill-treatment as less serious offences. The number of reports and complaints is also very high. The National Human Rights Commission reported receiving 11,608 complaints of torture and ill-treatment between 2006 and April 2014. The Federal District Human Rights Commission received 386 complaints of torture between February 2011 and February 2014. Civil society organizations reported more than 500 documented cases between 2006 and 2014. Although there may be some duplication, these numbers are worrying.
25. Torture is used mainly from the moment when a person is detained until he is brought before the judicial authority, its purpose being to punish and to extract confessions or incriminating information. In 2012, according to a survey by the Centre for Research and Teaching in Economics (CIDE), 57.2 per cent of detainees in federal centres said that they had been beaten during their detention and 34.6 per cent said that they had been forced to sign or alter a confession. Consistently, an alarming number of detainees interviewed claimed to have been tortured after being detained. At the Federal Investigation Centre, where arraigo detainees are held, almost everyone interviewed claimed to have been subjected to torture and ill-treatment before entering the Centre.
26. The Special Rapporteur observed disturbing similarities among testimonies. Generally speaking, people report having been detained by individuals dressed as civilians, sometimes hooded, who drive unmarked cars, do not have an arrest warrant and do not give the reasons for the arrest. When people are arrested at home, such individuals generally enter the home without a warrant and property is damaged and stolen. During their arrest, people are hit, insulted and threatened. They are blindfolded and driven to unknown locations, including military bases, where the torture continues, consisting of a combination of: punches, kicks and beatings with sticks; electric shocks through the application of electrical devices such as cattle prods to their bodies, usually their genitals; asphyxiation with plastic bags; waterboarding; forced nudity; suspension by their limbs; threats and insults. Occasionally, days go by without anyone being informed of the detainee’s whereabouts or without the detainee being brought before the ministerial police or judicial authority. Victims have often been paraded before the media as criminals without having been convicted; this in itself constitutes degrading treatment.
27. The Special Rapporteur was told of cases where victims had died as a result of being tortured and cases where torture occurs in conjunction with extrajudicial executions and enforced disappearances. He received disturbing testimonies about the excessive delays, errors, lack of information, stigmatization and harassment experienced by relatives of disappeared persons in the search for and the identification of remains, which may also constitute ill-treatment. This applies to crimes committed both by public employees and by private individuals.
28. The Special Rapporteur is concerned about the use of sexual violence as a form of torture, mainly against women detainees. Sexual torture includes forced nudity, insults and verbal humiliation, groping of breasts and genitals, insertion of objects in the genitals and repeated rape by multiple individuals. Few of these cases have been investigated or punished, or else they have been classified as less serious conducts, and they present particular challenges for victims, who are often revictimized when they file complaints or undergo medical examinations.
29. Generally speaking, victims of torture and ill-treatment are people who are poor or from marginalized social sectors, a situation that exacerbates problems of stigmatization and inadequate safeguards. The Special Rapporteur draws attention to the many cases in which people with no apparent link to the criminal conduct under investigation report having been detained, forced to sign statements under torture and, in some cases, sentenced on the basis of these statements.
30. Complaints of abusive law enforcement during demonstrations or against journalists or human rights defenders have increased, but have not been investigated effectively. The creation in 2012, with civil society participation, of the Protection Mechanism for Human Rights Defenders and Journalists was a positive step, but the Mechanism needs to be strengthened to ensure its survival and effectiveness. The police forces and the armed forces have issued protocols regulating the conduct of law enforcement activities, but there is no federal legislation that regulates law enforcement in accordance with international standards. The Special Rapporteur stresses the need to address this issue as a matter of priority, especially given the various demonstrations that have taken place recently.
31. The right of victims of torture and ill-treatment to comprehensive redress is illusory, since there are hardly any cases in which victims have been compensated, received medical and psychological care or benefited from rehabilitation in accordance with international standards. The redress recommended by the human rights commissions is insufficient and is not generally forthcoming. By law, the person criminally responsible for the crime must pay financial compensation, but in the prevailing climate of impunity this almost never happens. The General Victims Act offers an excellent opportunity for progress in this area and the Special Rapporteur calls for its implementation to be strengthened nationwide.