THE RIGHT TO HUMANE TREATMENT
291. The IACHR continues to be concerned about the practice of torture by State agents in Mexico. During its on site visit, the Commission had an opportunity to examine information from a number of sources regarding that practice committed for a variety of purposes. Because of the gravity of these aberrant acts, the IACHR considers it appropriate to discuss the status of the right to human treatment in Mexico in this report, and to specifically address the issue of torture. Numerous complaints have been filed by non-governmental organizations and individuals, according to which torture continues to be practiced not only on an extrajudicial basis, but also as part of judicial investigations, for the purpose of intimidating prisoners, forcing them to incriminate themselves, and obtaining confessions.(46) This situation has also been noted by international organizations.(47)
292. A series of national and international legal instruments exists in Mexico to prohibit torture and cruel, inhuman, and degrading treatment.
293. Article 5 of the American Convention on Human Rights recognizes the right of every person "to have his physical, mental, and moral integrity respected". It also provides that no one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.(48)
294. In addition, Mexico has ratified specific instruments that relate to torture, such as the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-American Convention to Prevent and Punish Torture. Through these two instruments, Mexico assumed the international obligation to, inter alia, prevent and punish torture and to take all legislative, administrative, judicial or other effective measures to prevent torture within its jurisdiction.(49) The Inter-American Convention to Prevent and Punish Torture defines torture as:
295. Articles 20 and 22 of the Mexican Constitution prohibit all forms of "incommunicado detention, intimidation or torture" or any "punishment involving mutilation and disgrace, branding, whipping, sticklashes, torment of any kind ... and any other unusual or excessive forms of punishment."
296. The Federal Law to Prevent and Punish Torture came into force on 27 May 1986 with its publication in the Official Gazette of the Federation. This law was amended in 1991 with the amendment coming into force in late December of that same year.
297. The main advances achieved in the reform of the law against torture were the following: a confession is valid only if given in the office of a Public Prosecutor or before the trial judge in the case and in the presence of the defense counsel or of a person who enjoys the trust of the declarant; it adopts the principle of the inadmissibility of evidence that has been unlawfully obtained; the punishment for criminal acts has been increased and brought into line with the gravity of the act committed; and criteria have been established for the payment of compensation for harm done.(51) Furthermore, with a view to establishing stricter regulations to prevent torture, it was proposed that each state of the Federation should adopt legislation to prevent and punish torture. In keeping with this approach, the National Human Rights Commission and the respective local commissions have lobbied state governments to adopt special legislation. The result has been positive, since to date only the states of Puebla and Tlaxcala do not have specific legislation on torture or laws that characterize torture as a criminal offence in their criminal codes.(52)
298. Article 3 of the above-mentioned law indicates that the crime of torture is committed by:
299. The National Human Rights Commission, as other Mexican authorities have done, has indicated that since the reform of the Federal law against torture, the number of such cases has dropped considerably as a proportion of all violations of human rights, and the number of complaints received regarding torture has declined.(53) The Mexican State made the following report to the IACHR:
300. Many non-governmental human rights organizations in Mexico do not share the State's view that the number of cases of torture in Mexico has dropped considerably. In this connection, they caution that:
301. Consequently, it is to be noted that in order to have a full picture, one must refer not only to the recommendations of the National Commission but also to those issued by the state human rights commissions (32 nationwide). The total should also include denunciations of torture made to the Office of the Public Prosecutor but not submitted to the National Commission as well as those declarations made directly before a court, in which accused persons retract the statements which they had made to the Office of the Public Prosecutor, on the grounds that they had been extracted under torture. They further state that the recommendations formulated by the National Commission take account only of the complaint but not of the number of victims. "in 1992, for example, in the 30 recommendations in which the National Commission found credible evidence of torture the recommendations themselves state that a total of 50 and not 30 people had been tortured."(55)
302. Finally, non-governmental organizations have noted that many complaints of torture are changed to another offence when the recommendations are formulated:
303. Even though Mexico has a broad legal framework for the prevention, eradication and punishment of acts of torture, torture and the impunity of the perpetrators continue to pose a serious problem.(57)
304. The IACHR has received numerous complaints about incidents of torture in Mexico and a number of cases are currently being reviewed by the Commission.(58) By way of illustration, we will refer here in extenso to one recent case of torture which took place in Mexico and which was the subject of a recommendation by the Human Rights Commission for the Federal District:
305. According to information received by the IACHR, most cases of torture and of cruel, inhuman and degrading treatment occur in the context of the criminal justice system, mainly during the early stages of the investigation of criminal offenses.(60) The agents who are usually guilty of committing acts of torture are members of the Federal and state judicial police, the Office of the Public Prosecutor or the Armed Forces. Below is an excerpt from the report issued recently by the United Nations Special Rapporteur, Nigel Rodley, regarding the practice of torture in Mexico:
306. This preliminary investigative stage, as we have pointed out in earlier chapters of this report, is under the exclusive responsibility of the public prosecutor's office. Prior to the 1993 amendments to the Constitution, neither the public prosecutor's office nor official agents could detain persons without judicial authorization, with the exception of cases of "flagrante delicto" or urgent cases involving crimes to be prosecuted ex oficio. Contrary to what was expected, the amendment increased the possibility of abuse, and gave the Public Prosecutor's Office virtually absolute power to make arrests without prior judicial authorization, whenever, in the opinion of the Public Prosecutor's Office, an urgent case were involved pursuant to Article 16 of the Constitution. The presumed suspect may be held by the Public Prosecutor's Office for periods of time up to 48 or 96 hours, depending on the case,(62) before being brought before the competent judge.
307. This power of extensive interpretation conferred on the Office of the Public Prosecutor, to determine which cases are "urgent," makes it impossible to ensure adequate protection of citizens from illegal interference with their personal freedom, with the serious consequences for their own personal well-being in all too many cases.(63) In the course of its many years of experience, the IACHR has found that in most cases, torture occurs during the first few days the prisoner is detained. Prisoners are particularly vulnerable during the time they are held "incomunicado," that is, when the security forces have total control over the fate of these people, since they are denied access to family members, an attorney, or an independent physician. For these reasons, the Commission considers it important to limit to a minimum the time that a prisoner may be held before being brought before a competent judge.
308. Despite the fact that article 5 of the American Convention states that "...all persons deprived of their liberty shall be treated with respect for the inherent dignity of the human person", torture and cruel, inhuman and degrading treatment are widely used by members of the Mexican judicial police during the preliminary investigation stage as a means of obtaining confessions from the accused and/or to intimidate them.
309. The practice of torture as a method of police investigation has been encouraged by the legal validity which the Mexican legal system confers on the first statement by the accused, which, as we have already noted in this report, is taken not by the judge but by the Office of the Public Prosecutor. In this regard, the Supreme Court of Mexico has even held that where there are two contradictory statements by an accused the initial statement should prevail:
310. This argument has been erroneously characterized in Mexico as the principle of procedural immediacy; however, this is valid in law only when the judge himself witnesses the giving of the statement. In that sense, Argentine author Julio B.J. Maier refers to the control of the evidence to be weighed by the court in its ruling in the following terms:
311. Historical experience has shown conclusively that to accord probative value to extrajudicial statements or statements made during the investigative stage of criminal proceedings merely encourages the practice of torture, insofar as the police prefer to expend less effort in the investigation and to seek instead the confession of the accused person. In this regard, the aforesaid report of the United Nations Special Rapporteur states the following:
312. A comparative analysis of the various elements of fair trial in the hemisphere clearly shows that the process should be conducted directly and promptly by the judge, with special emphasis being placed on the direct relationship between the judge and the person accused. Both the International Covenant on Civil and Political Rights and the American Convention provide that the accused must be brought "... promptly before a judge...."(67)
313. The logic behind the guarantees of the criminal proceeding is the personal intervention of the judge in his court, which is deemed to be the appropriate organ for the protection of such rights. The objective behind the principle of principle of immediacy is to avoid as much as possible any distancing of the judge from the elements of the proceeding and especially from the accused.(68) In addition, "the objective behind the principle of procedural immediacy is to guarantee to citizens that the most serious matters that may affect their social lives - including those of a criminal nature - would be dealt with by an organ that is endowed with a range of safeguards to guarantee in particular its independence and impartiality."(69)
314. In criminal matters, the principle of procedural immediacy is of fundamental importance, since the problems to be resolved by the court concern the basic faculties of the human person, which may be affected by the criminal justice system of the State.(70) Consequently, the guarantee of procedural immediacy should in all cases be construed as having effect only between the judge and the accused person. Improper and erroneous interpretations, including statements given at police stations or at the Office of the Public Prosecutor should be rejected, since they are not given before the judge himself.
315. The Mexican State is construing the guarantee of procedural immediacy in a way which, instead of serving as a procedural guarantee for those accused of a crime, is becoming its very antithesis, the source of abuse of the rights of accused persons. Instead of being brought promptly before an impartial and competent organ for the protection of their rights, such as the competent judge in each specific case, accused persons are held for 48 hours or 96 hours by the judicial police without any judicial oversight.(71) In many cases the judicial police use coercion and torture to extract self-incriminating testimony from the accused.(72) In this regard, the IACHR notes that it has had no knowledge of acts of torture taking place during the period in which persons accused of crimes are brought before a competent judge; on the other hand, it is aware of numerous cases of torture that have taken place when accused persons are under the responsibility of the judicial police, be they federal or state.
316. During its visit, the IACHR spoke with various State officials, such as officials in the Office of the Attorney-General, the Secretariat of the Interior [Secretaría de Gobernacíon], and the Supreme Court, to discuss the problem of torture as a method that the police continue to use in investigations, even though it is clearly illegal. In order to combat this abusive practice, the Commission stressed the importance of refusing to admit as evidence in court proceedings any statements that were obtained under torture. The Mexican State submitted to the Commission various court rulings in which the probative value of confessions extracted by means of torture was rejected. The IACHR appreciates legal precedence of this sort, but it points out that it is aware of many judgments in which statements obtained under torture have been accepted by the Mexican courts.
317. With reference to the foregoing, the State cites a case in which it was established that "pursuant to the principle of a prompt trial, the initial statements of an accused ordinarily are more convincing than later statements," but that the effectiveness of those statements is greater if "they are corroborated by other evidence."(73) In other cases cited by the State, Mexican courts have decided as follows:
318. Based on the previous statements regarding the principle of a prompt trial and the guarantees of due process, the IACHR concludes that the only confessions that should be accepted as incriminating evidence are judicial confessions, or in other words confessions made before a competent judge, with all the corresponding guarantees. On this point, the IACHR is in agreement with the United Nations Special Rapporteur, whose recent report on the practice of torture in Mexico recommends that the Mexican State "should not consider statements made by prisoners as having probative value unless they are made in the presence of a judge."(76)
46. In the statement released by the Commission following its visit to Mexico, it had the following to say:
During its visit to Mexico, the IACHR received information regarding a general distrust of the police, and it received complaints related to their inefficiency and corruption, and to their practice of arbitrary arrests and torture.
The IACHR attaches the utmost importance to the complaints it has receiving regarding torture in Mexico. On the basis of its wealth of experience in the hemisphere, the IACHR would like to stress that in the ongoing struggle against the scourge of torture, it is essential that the court give no probative value to confessions extracted under torture, and that they prosecute and punish the guilty parties. The IACHR is aware that the National Human Rights Commission has issued a number of recommendations in the case of torture, some of which have been acted on. The IACHR will investigate the complaints that it has received on the subject.
47. For instance, the Report of the United Nations Special Rapporteur on Torture issued in January 1996 indicates:
The Rapporteur... had received information according to which toture continued to be practiced extensively as part of judicial investigations, for the purpose of intimidating prisoners and obtaining confessions .
United Nations, E/CN.4/1996/35.
48. Other international agreements to which Mexico is party also expressly prohibit torture. Article 7 of the International Covenant on Civil and Political Rights states that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Article 5 of the Universal Declaration of Human Rights also states: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."
49. Article 1 of the Inter-American Convention to Prevent and Punish Torture states: "The States Parties undertake to prevent and punish torture in accordance with the terms of this Convention." Similarly, article 2 of the United Nations Convention against Torture provides that: "Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction."
50. In this regard the IACHR has noted that three elements are required for a finding of torture, namely:
1) It must be an intentional act through which physical and mental pain and suffering are inflicted on a person;
2) It must be committed with a purpose;
3) It must be committed by a public official or by a private person acting at the instigation of a public official.
See, Annual Report of the Inter-American Commission on Human Rights 1995, Report No. 5/96, Case Raquel Martín de Mejía, Peru, p. 198.
In addition, the United Nations Special Rapporteur against Torture has noted that the real result which torture actually seeks to achieve is to obliterate the personality and break the will of the victim and that its long-term effects are more psychological than physical, since a broken and obliterated personality will never heal and the inherent dignity of the victim is irreparably impaired. United Nations Special Rapporteur against Torture, E/CN.4/1993/26, p. 149.
51. Jorge Madrazo, "Logros de la CNDH en la lucha contra la tortura," (Successes of the National Human Rights Commission in the fight against torture), paper delivered on 10 August 1995 in Mexico, p. 11.
53. In this connection, Jorge Madrazo, former Chairman of the National Human Rights Commission, has stated that:
"During the first year of the Commission's activities, torture ranked first among violations of human rights, with 446 cases out of a total 3,256. This represented 13.7% of all cases investigated....
... during the second year things gradually improved, with cases of torture ranking third and accounting for 290 or 4.1 per cent of the 6,988 complaints received. During the third year of the Commission's existence, the 246 reported cases dropped to seventh place in the ranking, representing 2.8 per cent of the 8,793 complaints received. In the fourth year, the 141 cases reported ranked tenth and represented 1.65 per cent of the 8,804 complaints received. And in the last year, the 45 complaints of torture received ranked torture fifteenth among all types of violations committed, when it represented 0.5 per cent of the 8,921 complaints received....
Idem, at 10.
54. Network of Civilian Human Rights Organizations of Mexico, Report on Torture in Mexico submitted to the United Nations Committee against Torture at its session of April- May 1997.
57. See, for example, the report prepared by Human Rights Watch/Americas entitled Mexico, Torture and Other Abuses During the 1995 Crackdown on Alleged Zapatistas, February 1996, p. 5.
58. The Commission will express itself on them when they are decided and their publication has been agreed on.
59. Human Rights Commission of the Federal District, Recommendation 2/97, pp. 5-8. In this case, the Human Rights Commission of the Federal District recommended prompt investigation of the criminal torture to which Ms. María de los Angeles Plancarte Costilla was subjected and, once the presumed responsibilities were determined, the initiation of criminal proceedings when and where appropriate in connection with the crime and its concealment.
60. The June 1993 report of Amnesty International entitled "The Persistence of Torture and Impunity" notes that almost all cases of torture and human rights violations recorded by Amnesty International continue to be related to the administration of justice, especially in the investigation and trial phases (A.M.R. 41/01/93/s distr. SC/CO/GR).
61. United Nations, Economic and Social Council, Report of the Special Rapporteur, Mr.Nigel S. Rodley, presented in accordance with Resolution 1997/38 of the Human Rights Commission, E/CN.4/1998/38/Add.2, 14 January 1998, par. 79, p. 23.
No suspect may be detained by the Office of the Attorney General for more than 48 hours, at which time his release must be ordered or he must be turned over to the judicial authority. This time limit may be doubled in cases defined by law as organized crime. Any violation of the foregoing provision shall be punished under criminal law.
63. In its "Comments and Observations" to this report, the Mexican government regarded as an "erroneous assessment" the IACHR's statement that it was within the purview of the Public Prosecutor's Office to determine which cases are urgent for the purposes indicated. In support of its argument, the government claimed that the following conditions set forth in Article 16 of the Constitution must be met in order for a case to be considered as urgent:
- A serious crime is involved, as defined by the relevant law;
- There is a well-founded danger that the suspect may escape prosecution by the courts.
- Because of the time, place, or circumstances, it is not possible to have recourse to the judicial authority.
The text of the referenced Article 16 expressly establishes that, in the event that these requirements are met with respect to a given person, "the Public Prosecutor's Office may, acting on its own responsibility, order that person's detention, giving the grounds for and indicating the evidence that motivated its action." Consequently, there is no possibility for error with regard to the power of the Public Prosecution to determine whether the conditions established by law for detaining a persons have been met, thus confirming the observation set forth in paragraph 15 of this chapter. As for the periods of 48 and 96 hours, the government indicated in its comments that this was the maximum time that a person may remain in the custody of the Public Prosecutor's Office, both in cases of flagrante delicto as well as in so-called urgent cases. Once those periods of time have lapsed, the person is released or the appropriate criminal judge is assigned to the case, or in other words criminal proceedings are instituted.
64. Thesis number 82, Federal law seminar, appendix on defined jurisprudence 1917-1971, Part II, First Chamber, p. 175.
66. United Nations, E/CN.4/1998/38/Add.2, par. 43, p. 14. See also, Anneliezze Pereira, "The fight against torture in international law", Universidad Pontificia de Salamanca, final thesis for Master's degree in European studies and human rights, p.61.
67. Article 9 (3) of the International Covenant on Civil and Political Rights provides that: "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power...." Similarly, article 7 (5) of the American Convention provides that: "Any person detained shall be brought promptly before a judge..."
68. Cristián Riego, Criminal Procedure in Chile and Human Rights, Volume I, Legal aspects, Law Review Journal (Cuadernos de análisis jurídico) School of Law, Diego Portales University, pp. 37-39.
71. The government told the IACHR that "the Public Prosecutor's Office decrees that suspects are to be detained under its responsibility, and not that of the judicial police, in certain cases that are specifically defined." This statement confirms the lack of supervision of the competent judge during this stage of detention of suspects in Mexico.
72. The Human Rights Commission of the Federal District has stated in this connection that:
This Commission takes note that there are many ways in which a detainee may be injured in the pretrial stage of criminal proceedings and the Attorney-General, the Assistant State Attorney for Preliminary Investigations and the Director-General of the Judicial Police cannot be everywhere at the same time to prevent some form of abuse against persons deprived of their liberty.
Op. cit. at 20, p. 67.
73. Second Collegiate Court of the Sixth Circuit, direct amparo 218/89, Genaro Félix Eliosa Muñoz, July 12, 1989. Eighth Period, Semanario Judicial de la Federación, Mexico,Volume XIV-July, p. 511.
74. Direct amparo 790/86. Lorenzo Martínez Nieto and Coags., November 3, 1986, Seventh Period, Semanario Judicial de la Federación, Mexico, Volume 205-216, Second section, p. 13
75. Direct amparo 2151/74. Salvador Pérez García et al, 17 July 1975, Seventh Period, Semnario Judicial de la Federación, Mexico, Volume 84, Second section, para. d, p. 49.
76. United Nations,
E/CN.4/1998/38/Add.2, p. 26.