REPORT Nş 10/03
DE JESÚS BARRANCO
On April 20, 1999, the Inter-American Commission on Human Rights
(hereinafter “the Inter-American Commission” or the “IACHR”)
received a complaint lodged by the Liga Mexicana por la Defensa de
los Derechos Humanos (LIMEDDH-FIDH) (“the petitioners”) alleging
the international responsibility of Mexico (“the State” or “the
Mexican State”) for the illegal detention and physical and
psychological torture of Tomás de Jesús Barranco, as well as his later
conviction and sentencing to a 40-year prison term and a fine of 55,626
pesos for the crimes of terrorism and homicide.
The petitioners argue that the facts alleged constitute
violations of several provisions of the American Convention on Human
Rights (“the American Convention”): the obligation to respect the
rights (Article 1(1)); the right to humane treatment (Article 5); the
right to personal liberty (Article 7); and that all of the admissibility
requirements provided for in the American Convention have been met.
The State argues failure to exhaust domestic remedies, and that
there has been no violation whatsoever of the American Convention,
especially with respect to personal liberty, the rights of all criminal
defendants, proper foundation and motivation (la
debida fundamentación y motivación), and the right to judicial
Without prejudging on the merits, the IACHR concludes herein that
the case is admissible, as it meets the requirements set forth in
Articles 46 and 47 of the American Convention.
Accordingly, the Inter-American Commission decides to notify the
parties of the decision and to continue analyzing the merits with
respect to the alleged violations of Articles 1(1), 5, 7, 8, and 25 of
the American Convention by the Mexican State.
PROCESSING BY THE COMMISSION
On April 20, 1999, the Commission received the petition lodged
against the Mexican State.
On June 18, 1999, additional information was received from the
petitioners. On June 25, 1999, pursuant to Article 34 of the Regulations
in force at that time, the Commission sent the Mexican State the
pertinent parts of the petition and requested its observations within 90
On September 24, 1999, the State submitted its observations,
which were sent to the petitioners on October 12, 1999; the response was
received on November 30, 1999. On December 21, 1999, the IACHR asked the
Mexican State to provide information on the situation of Tomás de Jesús
Barranco; after it was given an extension of the initial time period
indicated, the State answered on February 7, 2000. On February 17, 2000,
the Inter-American Commission forwarded the pertinent parts of that
communication to the petitioners, and the petitioners’ response was
received on March 24, 2000.
THE PARTIES’ POSITIONS ON ADMISSIBILITY
According to the petitioners, Tomás de Jesús Barranco, Rodolfo
Tacuba Moreno, and Juan José Flores de la Cruz were detained without
any arrest warrant by agents of the Judicial Police of the state of
Guerrero in the early morning hours of August 29, 1996.
The petitioners allege that the arbitrary detention occurred at
approximately 12:30 a.m., when Mr. Barranco was on his way to a taxi
terminal in the city of Tixtla, state of Guerrero, in the company of Mr.
Rodolfo Tacuba Moreno.
The agents believed those persons had participated in an attack
committed in Tixtla on August 28, 1996, when a group of armed and hooded
persons shot firearms from the street towards the Judicial Police
command headquarters. As a result, two members of the police were
seriously wounded; one of them later died.
The petition states that Tomás de Jesús Barranco was taken to
the offices of the state Judicial Police command headquarters, where he
was subjected to physical and psychological torture.
He adds that they threatened and intimidated him and his
relatives, and that they questioned him to determine whether he was one
of the “hooded ones.” Afterwards
he was taken to the offices of the Office of the Attorney General of
Guerrero (PGJE: Procuraduría General de Justicia de Guerrero) in
Chilpancingo, Guerrero, where he was once again tortured physically and
psychologically by members of the state Judicial Police, to force him to
declare himself guilty of having participated in the events of August
The version of the facts given by Tomás de Jesús Barranco is as
next day, at about 11:00 a.m., they took me from the cells and took me
to declare right there in the Procuraduría, where they had a document
in which I supposedly declared myself guilty of being a member of the Ejército
Popular Revolucionario (EPR), but as I refused to accept it, once
again they began to beat me to force me to accept, because if I didn’t
accept, I had to die that same day, and they gave me a weapon for me to
hold it so they could televise me, and so they could say that I had the
weapon, so they could depict me as guilty; while they filmed me others
were keeping guard over me.
they told me that I was to state that I was going to make the final
declaration, but for that they told us that we had to tell the truth,
which is what was contained in the document, and there I met one of the
persons who had punched me in the stomach, and then they put me with the
Public Ministry agent, where their conduct was the same as in the
judicial police, saying that if we didn’t tell the truth we would have
to go for a helicopter ride, to see if we could withstand the fall, to
return once again to the cells, and since we didn’t accept having them
blame us, they argued the validity of the document from the Judicial
The petitioners allege that they denounced the torture before the
Guerrero State Commission for the Defense of Human Rights (Comisión
de Defensa de los Derechos Humanos del Estado de Guerrero -
CODDEHUM). However, they
state that said Commission did not investigate in an exhaustive or
impartial manner, since it based its conclusions exclusively on the
medical examinations presented by the PGJE and the Readaptation Center,
and that it did not conduct a review of those certificates by a forensic
medical expert. Based on
this, the petitioners allege:
was negligence on the part of the CODDEHUM, inasmuch as it did not
conduct a medical and psychological examination of Mr. Tomás de Jesús
Barranco. Such an
examination would lead to determine--at least--the rupture of the right
ear, which has a posttraumatic origin; this lesion is typical of the
torture technique known as “telefonazo” and the possible
psychological sequels, which was applied to him in order to make him
confess his guilt in the events he was being accused of.
This lesion was determined by the LIMEDDH-FIDH in the course of
the medical examination conducted on Mr. Tomás de Jesús Barranco on
March 1st 1999 in order to confirm the testimony where he was
denouncing the acts of torture against him.
On September 10, 1997, the Superior Tribunal of Justice of
Guerrero convicted Mr. Tomás de Jesús Barranco of terrorism and for
the aggravated homicide of Silvio Morales Miranda and Joel Juvenal
Narciso Cruz Miranda. The court imposed a sentence of 40 years
imprisonment and a fine of 55,626 pesos in reparation for the harm
The petitioners allege that at trial there were violations of due
process, because the evidence of the prolonged detention and torture to
which Mr. Barranco was subjected was not given weight. Mr. Barranco, in
his first appearance before the judge, had alleged that his confession
had been extracted under torture. They
add that he was not allowed to call a person of trust as provided by
law, and that contrary to what is indicated in the record, the public
defender was not present at any time.
The petitioners also note that the principle of the presumption
of innocence was not respected at any stage of the process, and that,
when Tomás de Jesús Barranco made his preparatory declaration, the
First District Judge failed to indicate that he is indigenous and speaks
the Náhuatl or Mexica dialect, and does not have a sufficient
comprehension of the Spanish language.
In addition, the petitioners stated that the remedies pursued
have been ruled on without considering those violations. In effect, they
filed an appeal on September 23, 1997, before the Superior Tribunal of
Justice, First Criminal Chamber, file 59/99, against the guilty verdict
of September 10, 1997. Later they filed direct criminal amparo
number 544/98 of August 15, 1998, against the ruling issued by the first
criminal chamber of the Superior Tribunal of Justice.
Finally, they mention the complaint presented on October 7, 1998
to the CODDEHUM.
In response to the petition under consideration, the State has
provided a summary of the actions taken in the process, and states that
the National Human Rights Commission (Comisión Nacional de Derechos
Humanos) did not find any record for Tomás de Jesús Barranco.
It indicates that the Commission for the Defense of Human Rights
of the State of Guerrero reported that on October 7, 1996, it received a
complaint brief against the state Judicial Police, for alleged unlawful
detention and torture. The
State reports that the CODDEHUM file was archived in April 1997, since
no evidence was identified showing the violation of Mr. Tomás de Jesús
Barranco’s human rights.
The State indicates that the Agency of the Public Ministry for
the Regular Jurisdiction of the Judicial District of Bravos, state of
Guerrero, on August 28, 1996, opened inquiry BRA/SC/1194/96.
That inquiry refers to the crimes of aggravated homicide of Joel
Narciso Cruz Miranda and Silvio Morales Miranda, bodily injuries, damage
already incurred and to be incurred, against Tomás de Jesús Barranco
or Felipe García Flores, Rodolfo Tacuba Moreno, and Juan José Flores
de la Cruz.
The Mexican State argues that during the processing of the matter
the accused was afforded the opportunity to mount a defense, and that at
all times his right to be guaranteed a hearing was respected.
Once the preparatory phase of the inquiry and trial had
culminated, the State reports that the Mixed Judge of First Instance of
Tixtla handed down a judgment within criminal case 59/996 in which it
declared that Tomás de Jesús Barranco or Felipe García Flores was
guilty of the crimes indicated, and imposed on him a sentence of 40
years imprisonment and reparation for damages to each of the survivors
of the agents of the Judicial Police of Guerrero.
The Mexican State alleges that Mr. Barranco was surprised in flagrante delicto and that he himself accepted having participated
in the acts attributed to him, in addition to which the police, in the
act of detaining him, detected additional elements that confirmed his
participation in the commission of the crimes mentioned. These
evidentiary elements were later ratified when the sodium rhodizonate
test was performed on the accused, as the result was positive.
With respect to the petitioners’ arguments regarding acts of
torture, the State argues that on August 29, 1996, the day of his
detention, the forensic physician on duty at the PGJE examined him.
It argues that in that exam it was determined that Mr. Tomás de
Jesús Barranco was clinically healthy and no indicia of apparent
physical assault were found; the Public Ministry was so informed when
Mr. Barranco was placed at its disposal.
Similarly, the State argues that on August 30, 1996, the forensic
physician on duty from the same Office of the Attorney General performed
a second examination of Mr. Barranco, in which no physical injuries were
found, and he therefore concluded that Mr. Barranco was conscious,
active, reactive, and aware of time, place, and space.
The Public Ministry agent for the regular jurisdiction attested
to the medical certificate describing the physical integrity of the
accused, after having before him the official note that certified the
The State alleges that domestic remedies have not been exhausted.
It asserts in this connection that the Mexican legal system allows the
alleged victim to go before the Public Ministry to lodge a complaint of
torture. In addition, it
argues that any irregularity in the actions of the public servants who
handled his case can be reported to the Office of Internal Review of the
PGJE. Finally, it adds that the legislation provides for a remedy to
seek recognition of innocence, which was not pursued by Mr. Barranco.
competence ratione personae,
ratione temporis and ratione
The petitioners are entitled to lodge complaints with the IACHR
under Article 44 of the American Convention. The petition indicates as
the alleged victim an individual person with respect to whom Mexico
undertook to respect and ensure the rights set forth in the American
Convention. As regards the State, the Commission points out that Mexico
has been a party to the American Convention since March 24, 1981, the
date it deposited the respective instrument of ratification.
Accordingly, the Commission is competent ratione
personae to examine the petition.
The IACHR is competent ratione
loci to take cognizance of the petition, insofar as it alleges
violations of rights protected in the American Convention that allegedly
occurred in Mexican territory, a state party to that treaty.
In addition, the Inter-American Commission is competent ratione
temporis insofar as the obligation to respect and ensure the rights
protected in the American Convention was already in force for the State
as of the date of the events alleged in the petition. Finally, the
Commission is competent ratione
materiae since the petition alleges violations of human rights
protected by the American Convention.
Other admissibility requirements
Exhaustion of domestic remedies
A dispute has been raised in the instant case with respect to the
adequate and effective remedy that needs to be pursued in Mexico to
remedy the situation alleged. Accordingly, the IACHR should proceed to
make a determination as to whether the requirement to exhaust domestic
remedies provided for in Article 46(1)(a) has been met.
From the information available, it appears that the petitioners
have had recourse to the regular mechanisms provided for in Mexico for
reporting the alleged violations that have been presented to the
Inter-American Commission. In this regard, the record reveals that on
September 2, 1996, in his first judicial appearance, Mr. Barranco
refuted his declaration to the Public Ministry, and reported that he had
been unlawfully detained and tortured by agents of the Judicial Police.
The judgment in the criminal trial was appealed and then the amparo remedy was pursued in an effort to get the competent judicial
organ to overturn the verdict imposed on Mr. Tomás de Jesús Barranco.
As for the non-judicial remedies, it has been noted that Mr.
Barranco’s representatives lodged a complaint with the CODDEHUM in
The Mexican State identifies as remedies still pending the
complaint lodged with the Public Ministry for alleged acts of torture,
the complaint before the Office of Internal Review of the PGJE for any
illegal conduct of its officials, and the remedy seeking recognition of
In the instant case, the Inter-American Commission considers that
the complaint made by Mr. Barranco in his statement to the district
judge on September 2, 1996, followed by the criminal trial that
culminated with the affirmation of the verdict and the rejection of the
direct amparo constitute the
adequate and effective remedies available for seeking to have the
Mexican authorities solve the situation alleged. In this regard, it is observed that the facts involve agents
who are part of the PGJE itself, and that they were put before the judge
at the first available opportunity.
The Federal Law to prevent and punish torture, in force in Mexico
at the time of the events analyzed here, imposes on all public officials
the duty to report acts of torture that come to their attention, and
establishes a sanction.
The information in the record does not reveal that there was any
investigation whatsoever of the alleged acts of torture reported by Mr.
Barranco to the criminal judge in his case, more than six years after
the date when they were alleged committed.
Therefore, for the purposes of exhausting domestic remedies as
required by the American Convention, the IACHR considers that Mr.
Barranco was not under an obligation to present a complaint to the
Public Ministry for the acts of its agents, nor to lodge a complaint
with the Office of Internal Review of the Public Ministry.
The violations of due process alleged before the Inter-American
Commission were also denounced during criminal case 59/996 in Guerrero,
and were the basis of the appeal of the verdict, and of direct criminal amparo 544/98. As for
the remedy seeking recognition of innocence, the Inter-American
Commission believes that the Mexican State has not met its duty to show
that said remedy is adequate and effective, as required in the context
of this case.
For this reason, and considering the remedies that were pursued
and the procedures that concluded in a firm judgment, the IACHR
determines that the recognition of innocence is not a remedy that Mr.
Barranco must exhaust for the purposes of admissibility of a petition
before the IACHR.
The requirement of exhaustion of domestic remedies established in
Article 46 of the American Convention refers to available judicial
remedies that are adequate and effective for solving the alleged
violation of human rights. In keeping with what the Inter-American Court
has reiterated on several occasions, if in a specific case a remedy is
not adequate for protecting the legal situation that has been infringed,
and capable of producing the result for which it was designed, it
obviously need not be exhausted.
Accordingly, the IACHR determines that domestic remedies were
exhausted on October 14, 1998, with the judgment that rejected the
direct criminal amparo filed by Mr. Barranco’s defense. Accordingly, the requirement set forth in Article 46(1)(a) of
the American Convention is met.
Time period for submission
The petition was received on April 20, 1999, in an electronic
communication sent to the Executive Secretary of the IACHR. On April 22,
1999, another copy of the same petition was received by fax.
The petitioners indicate that they were given notice of the
judgment that exhausted domestic remedies on October 20, 1998; and that
accordingly the petition was submitted within the six-month period.
The Inter-American Commission concludes that the requirement
indicated in Article 46(1)(b) of the American Convention has also been
c. Duplication of
proceedings and res judicata
No information appears in the record of this case that might lead
to a determination that the matter is pending before another proceeding
for international settlement or that it has previously been decided by
the Inter-American Commission.
Characterization of the facts alleged
In their complaint the petitioners allege the illegal detention
and torture of Tomás de Jesús Barranco, as well as the use of the
confession obtained under coercion and the failure to weigh the evidence
in the regular criminal proceeding in which he was convicted.
The State argues that there was no violation of Mr. Barranco’s
In the present procedural stage the Commission is not called on
to make a determination as to whether the American Convention was
actually violated. For the
purposes of admissibility, the IACHR should determine whether facts are
alleged that tend to establish a violation, as stipulated by Article
47(b) of the American Convention. The
margin of appreciation of these factual allegations is different from
that required for deciding on the merits.
The Inter-American Commission must make a prima
facie evaluation to examine whether the complaint lays the
foundation for the apparent or potential violation of a right guaranteed
by the American Convention. This is a summary analysis, which does not
imply any prejudice or prejudging of the merits of the dispute.
The distinction between the study for a declaration of
admissibility and that required to determine a violation is reflected in
the very Rules of Procedure of the IACHR, which clearly distinguish the
admissibility and merits phases.
The IACHR considers that the facts alleged in this case, if true,
would tend to establish violations of Articles 5, 7, and 1(1) of the
American Convention. In
addition, though the petitioners didn’t argue them during the
processing of this case, the Commission applies the principle of iura
novit curia and concludes that the facts could also tend to
establish violations of Articles 8 and 25 of the American Convention.
Therefore, the IACHR considers that the petitioners have made a prima
facie showing that the requirements of Articles 46 and 47 of the
American Convention have been met.
The Inter-American Commission concludes that it is competent to
take cognizance of and decide on the petition, and that it is admissible
under Articles 46 and 47 of the American Convention.
Based on the foregoing arguments of fact and law, and without
prejudging on the merits,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the instant case admissible, with respect to alleged
violations of the rights protected by Articles 1(1), 5, 7, 8, and 25 of
the American Convention.
To notify the parties of this decision.
To continue analyzing the merits.
To publish this decision and include it in its Annual Report to
the OAS General Assembly.
and signed at the headquarters of the Inter-American Commission on Human
Rights, in the city of Washington, D.C., February 20th, 2003.
(Signed): Juan E. Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; Robert K.
Goldman, Julio Prado Vallejo, Clare K. Roberts and Susana Villarán,
The petition was received April 20, 1999, in an electronic
communication directed to the Executive Secretary of the IACHR,
which is in the record. Two days later the petitioners forwarded the
same document by facsimile.
Communication from petitioners, April 20, 1999, pp. 1-2.
Communication from petitioners, April 20, 1999. Testimony of Tomás
de Jesús Barranco, Section I, chapter on evidence.
Communication from petitioners, November 16, 1999, p. 2.
Communication from the State, September 24, 1999, pp. 3-4.
When the declaration of the Public Ministry was read in court, Mr.
yes it is true that he so declared, but that it was due to the fact
that he was badly beaten by the members of the judicial police who
detained him, but he doesn’t know how many there were because
there were also members of the PGR and he doesn’t know how many
there were, for, as he said earlier, he so declared because he had
been beaten, and that even some members of the judicial police told
him to invent more things, apart from those he had already said, but
that he refused to do so, and that the facts that were the motive
for his detention were that the judicial police detained him for
being drunk, for they apprehended him in Tixtla, and that he does
not ratify any of his ministerial declaration because they forced
him to so declare...
District Court of Guerrero, Chilpancingo, testimony of Mr. Tomás
de Jesús Barranco, September 2, 1995, p. 4.
Article 11 of that law provides:
public servant who in the performance of his or her functions learns
of an act of torture, is under an obligation to report it
immediately, and, if he or she fails to do so, he or she shall be
subject to three years imprisonment, and 15 to 60 days fine, without
prejudice to what is established by other laws.
To determine the days of fine, reference shall be had to the
final part of Article 4 of this law.
On the remedy of recognition of innocence, see IACHR, Annual Report
2001, Report Nş 68/01, Case 12.117, Santos Soto Ramírez and Sergio
Cerón Hernández, Mexico, June 14, 2001, paras. 12-15.
See, for example, Inter-American Court of Human Rights,
“Exceptions to the Exhaustion of Domestic Remedies (Articles
46(1), 46(2)(a), and 46(2)(b) of the American Convention on Human
Rights,” Advisory Opinion OC-11/90, of August 10, 1990, para. 36.