REPORT Nº 31/06
PETITION 1176-03
ADMISSIBILITY
SILVIA ARCE ET AL.
MEXICO
March 14, 2006
I.
SUMMARY
1. On December
30, 2003, the Inter-American Commission on Human Rights (hereinafter
referred to as the Inter-American Commission, or IACHR) received a
complaint alleging international responsibility of the United Mexican
States (hereinafter referred to as the State) for the irregularities
committed in the investigation of what happened to Silvia
Arce (hereinafter referred to as the alleged victim), who disappeared on
March 11, 1998 in Ciudad Juárez, state of Chihuahua. The petition was
filed by Evangelina Arce, mother of the alleged victim, Justice
for our Daughters (Justicia para Nuestras Hijas), the Mexican Commission
for Defending and Promoting Human Rights (Comisión Mexicana de Defensa y
Promoción de los Derechos Humanos—CMDPDH), and the Center for Justice
and International Law (Centro de Justicia y el Derecho Internacional—CEJIL)
(hereinafter referred to as the petitioners).
2. The petitioners allege that the events reported
constitute a violation of Article 7 of the Inter-American Convention on
the Prevention, Punishment and Eradication of Violence against Women
(hereinafter referred to as the Convention of Belém do Pará) and of
Articles I and III of the Inter-American Convention on the Forced
Disappearance of Persons. Likewise, they allege that the following
human rights and obligations guaranteed by the American Convention on
Human Rights (hereinafter referred to as the American Convention) have
been infringed: obligation to respect and guarantee all rights (Article
1); obligation to adopt domestic legal effects (Article 2); right to
life (Article 4); right to personal integrity (Article 5), right to
personal freedom (Article 7); right to due process (Article 8); equality
before law (Article 24); and right to judicial protection (Article 25).
In particular, they allege that, in regard to Evangelina Arce and her
family, there have been violations of the right to personal integrity
(Article 5); right to due process (Article 8); right to protection of
the family (Article 17); and right to judicial protection (Article 25),
all related to the violation of the generic duty of respect and
guarantee provided for in Article 1(1) of the American Convention. They
also contend that they have met all the requirements of admissibility
set forth in this international instrument. As for the Mexican State,
it holds that the steps taken in the case show its willingness to
guarantee the respect for the human rights of all persons and that the
remedies under domestic law have not been exhausted. As a consequence,
the State requests the Inter-American Commission to declare the
petition inadmissible.
3. Without prejudging the merits of the case, in
the present complaint, the IACHR concludes that the case is admissible,
because it meets the requirements stipulated in Articles 46 and 47 of
the American Convention. Therefore, the Inter-American Commission
decides to notify the parties and continue reviewing the merits of the
alleged violation of Article 7 of the Convention of Belém do Pará;
Articles I and III of the Inter-American Convention on the Forced
Disappearance of Persons; and Articles 2, 4, 5, 7, 8, 17, 24, and 25 of
the American Convention, in connection with Article 1.1 of the above-mentioned
international instrument; likewise, it decides to publish the present
complaint in its Annual Report to the OAS General Assembly.
II.
PROCEEDINGS WITH THE INTER-AMERICAN COMMISSION
4. The petition
was submitted on December 30, 2003, by means of a communication from
Justice for Our Daughters, CMDPDH, and CEJIL. After the initial study
of the proceedings, on the basis of Article 30.2 of its Rules of
Procedures, the Commission transmitted the relevant parts of the
petition to the State on May 18, 2004 with a two-month time limit to
make its observations. On January 3, 2005, the Inter-American
Convention reiterated its request to the Mexican State for information
made on May 18, 2004. On February 1, 2005, the State’s note containing
the observations on the petition was received. This information was
sent to the petitioners on April 12, 2005, with one-month time limit for
them to present their observations, and they did submit them on May 19,
2005. These observations were sent to the State on July 20, 2005, and
the State presented its observations on August 19, 2005.
III. POSITIONS OF THE PARTIES
A. The petitioners
5. The
petitioners allege that the State is responsible, among other reasons,
for irregularities and inconsistencies in the investigation of the facts
involved in the disappearance of Silvia Arce. According to the
complaint, Silvia Arce, 29 years of age, was last seen alive by her
family on Wednesday, March 11, 1998. The day of her disappearance,
Silvia Arce left her home at 7:00 PM for her job as a dancer in a bar
called the “El Pachangas”[1]
and never returned. Octavio Atayde, father of Silvia Arce’s children,
went to the bar to ask about her, and one of the waiters expressed
surprise that she had still not arrived at home. The petitioners
emphasize that, at the same time that Silvia Arce disappeared, Griselda
Mares Matas, one of her close friends, also disappeared.[2]
6. On March 13,
Oscar Atayde went to the house of Mrs. Evangelina Arce, Silvia Arce’s
mother, to inform her that her daughter had not returned home. The
following day, Evangelina Arce went to the Attorney General’s Office of
the state of Chihuahua (Procuraduría General de la Justicia del Estado—PGJE)
and filed the corresponding complaint. Relatives also managed to obtain
information that would help them clarify the facts and determine her
whereabouts. The night of March 14, Mr. Atayde returned to the bar, but
those present were unable to provide him with any further information.
On March 15, one of the security guards of the bar told them that, on
the night of the event, Mr. Avilio Melgarejo had offered to take Silvia
back to her house.
The relatives reported this information to the PGJE and, after observing
that the motor vehicle of Mr. Melgarejo was in his home, they reported
this fact to the Criminal Investigation Department so that the police
would proceed to look for him. Nevertheless, no steps were taken until
March 23, 1998, 10 days after the disappearance. During the
proceedings, the owner of the house repeated to the officers the same
thing she had said to the relatives of the alleged victim: that on the
date of the event “a woman fitting the description of Silvia Arce had
come looking for Avilio Melgarejo and that she was with another
individual in a white car.”
7. The
petitioners contend that the police officers in charge of the
investigation omitted lines of investigation that, prima facie,
could have led to useful results for clarification of Silvia Arce’s
disappearance.
On the contrary, the petitioners claim that “the investigations have
focused on the victim’s private life.”
In 2002, some of the petitioners became the legal representatives for
third-party proceedings, and a review of the inquest enabled them to
notice various omissions. Among others, they were able to observe that,
from 1998 up to that time, no steps had been taken, and as a result it
was requested that fresh investigations be conducted. Evangelina Arce
adds that, at first, some of the evidence that she presented did not
appear in the inquest; for example, she mentions a tape recording in
which an unidentified person states that “Silvia Arce was murdered by
Avilio Melgarejo, and that afterwards they dumped her body in the
Municipality of Parral;” this tape recording appeared later on and was
only transcribed recently on June 15, 2002. Among the irregularities of
the investigation, the petitioners observe that the officers failed to
gather relevant information on the main suspect;
nor were investigations carried out on the persons who might in some way
have been related to the disappearance;
nor was anything done to find these persons.
8. The
petitioners assert that the facts are consistent with the pattern of
disappearances of women in the region of Chihuahua at that time. They
claim that the State is responsible for the uncertainty of Silvia Arce’s
relatives about her whereabouts. Because of the time that has elapsed
without any news of Silvia Arce, the petitioners believe that she may
have lost her life in circumstances that till now have not been
clarified. They assert that the State is responsible for not having
conducted due investigation at the time of the disappearance, and they
point out that, similar to what occurred to Verónica Rivera, Silvia Arce
may have been first kidnapped. They add that the information gathered
by her relatives provide clues pointing to the possible involvement of a
State police officer. Furthermore, they point out that the family broke
up as result of Silvia Arce’s disappearance and uncertainty about her
whereabouts. The petitioners allege that the mother’s physical and
emotional health declined and that she was “constantly harassed and
discredited because of the efforts she made through various
organizations in which she participated to make public her complaints in
her country and internationally.”
9. In short, the
petitioners claim that there are unwarranted delays in the
investigations, because eight years after the event no reasonable
explanation has been forthcoming for not having located Silvia Arce nor
have those responsible for the events reported been punished, whereas
her family has been tirelessly calling for justice and has even started
up their own investigations. They also claim that the absence of the
offense of the forced disappearance of persons in country’s domestic
legal system prevents the victims from benefiting from any suitable
remedy and, as a result, the State has not fulfilled its duty to adopt
domestic law provisions to protect persons under its jurisdiction. They
identify the gender factor as a crucial factor for the lack of
exhaustive investigative actions, although the State has recognized and
accepted its duties to respect and guarantee the rights of women.
10. In addition to claiming that the case constitutes a denial of
justice, the petitioners invoke exception to the rule that domestic
remedies, as provided for in Article 46(2) of the American Convention,
must have been exhausted, as the remedies available in the domestic
jurisdiction have not been effective or expeditious and unwarranted
delays and the absence of due process of law are apparent.
B. The State
11. In response to
the complaint, the Mexican State claims that the murder and
disappearance of women in Ciudad Juárez, Chihuahua, are the result of a
complex, multi-faceted, and multi-factor social phenomenon that cannot
be addressed merely by police investigation and the administration of
justice. It affirms that it is a problem that requires an integral
vision tackling the social and structural causes leading to this
phenomenon. It recognizes that, in the specific situation of Ciudad
Juárez, factors such as drug trafficking, drug abuse, migration, and
organized crime aggravate the culture of discrimination against women.[9]
12. The State
refers to the actions to tackle the problem of the murder of women in
Ciudad Juárez. Among others, it mentions that, in the framework of
prevention, the Chihuahua Women’s Institute (Instituto Chihuahuense de
la Mujer—ICHIMU) was established by decree of the Governor of the State
of Chihuahua; this Institute has been promoting various activities to
respond to this problem. In coordination with the Office of the Special
State Prosecutor for the Homicide of Women in Ciudad Juárez, this
institute has followed up on every investigation and the attention given
to the victims’ relatives. The State also mentions the establishment of
the Coordination and Liaison Commission to Prevent and Eliminate
Violence against Women in Ciudad Juárez, Chihuahua (Comisión de
Coordinación y Enlace para Prevenir y Erradicar la Violencia contra las
Mujeres en Ciudad Juárez, Chihuahua). It also points out that the State
Congress amended the Criminal Code to address crimes that are identified
as repetitive in each case.
13. As for
prosecution and the administration of justice, the State indicates that
the instrumentation of an Integral Public Security Plan is being
envisaged, as well as the establishment of a joint investigative agency
comprised of the Public Prosecutor’s Office of the Republic and the
Attorney General’s Office of the State of Chihuahua, the instrumentation
of measures to protect victims and their families, attracting federal
investigative actions; and that steps have been to taken to secure the
support of the U.S. Federal Bureau of Investigation (FBI) so it can
provide technical assistance in investigations.[10]
14. The State also
mentions the creation of a Special Federal Attorney General’s Office to
investigate the murder and disappearance of women in the Municipality of
Ciudad Juárez, which submitted its reports to the IACHR in June and
October 2004. It points out that the Second Report of the Special
Prosecutor[11]
indicates that, out of the 155 cases reviewed, to date probable
responsibility on the part of public servants directly involved in the
investigations and who might have been administratively and/or
criminally liable has been detected. As a whole, there were 100
officials of the PGJE who were dismissed from their posts and are facing
various criminal and/or administrative charges.
The State considers that, as a result of these measures, it has been
able to address one of the main concerns of the relatives of the
victims, namely, mistreatment and neglect by various public officials.
15. Furthermore,
the State points out:
[T]he Mexican
Government wishes to clarify what was pointed out by this distinguished
Commission, namely, that it has not received information about this
petition, because […] the submittal of information to this
inter-American body has been permanent, showing the willingness of the
Mexican Government to keep in close touch with the Commission about the
integral treatment being provided to address the problems in Ciudad
Juárez, Chihuahua.
16.
As for the disappearance of Silvia Arce, the State points out that this
case was included in the first package reviewed by the Special Federal
Prosecutor.[15]
It adds that, on July 7, 2004, because of incompetence, the case was
referred to the Deputy Prosecutor’s Office Against Organized Crime (Subprocuraduría
contra la Delincuencia Organizada—SIEDO), because it was deemed that
more than three persons had intervened. The above-mentioned agency
started up a pretrial investigation of the crimes of violating the
Federal Law against Organized Crime (unlawful imprisonment, against
health and injuries). They add that various steps are being taken to
find the possible whereabouts of Silvia Arce.
17. The State
claims that one of the alleged suspects is an inmate at the Judicial
Rehabilitation Center since October 1998, who is completing a prison
sentence of 13 years and 6 months for proven theft and kidnapping. At
the same time, the State provided specific information about the status
of the investigations and requested that they remain confidential
because it was at the inquest stage and so as not to jeopardize its
development. The petitioners were apprised of the information, which
appears in the case file of the Inter-American Commission.
18. Finally, the
State points out that, in the case of Silvia Arce, it has documented the
support provided to her relatives in the two above-mentioned reports by
the Special Prosecutor’s Office (Fiscalía Especial). This support
consisted of a family grocery allowance for the months of July to
September 2004, granted by the General Department of Municipal Public
Security (Dirección General de Seguridad Pública Municipal) and the
Special Prosecutor’s Office. Likewise, it mentions that the Chihuahua
Women’s Institute and Special Prosecutor’s Office provided them with
economic, medical, and psychological support, assistance, and legal
counsel during these months.
IV. REVIEW OF ADMISSIBILITY
A. Jurisdiction
ratione
loci, ratione personae, ratione temporis and ratione materiae
of the Commission
19. Article 44 of
the American Convention entitles the petitioners to lodge complaints
with the IACHR. The petition points out that the alleged victims are
Silvia and Evangelina Arce, individual persons whose rights, as
enshrined in the American Convention, Mexico has pledged to respect and
guarantee. As for the State, Mexico is a party to the American
Convention since March 24, 1981, the date on which it deposited the
respective ratification instrument. Therefore the Commission has
jurisdiction ratione personae to examine the petition.
20. Furthermore,
the Mexican State ratified the Inter-American Convention on the
Prevention, Punishment and Eradication of Violence against Women (Belém
do Pará Convention) on November 12, 1988. Although the events that gave
rise to the petition being examined took place in March 1998, before the
above-mentioned instrument came into force for Mexico, the petitioners
claim that violations of due process have been continuous, and therefore
these claims would have to be examined on the basis of the applicability
of the Convention of Belém do Pará.
A similar criterion is observed regarding the Inter-American Convention
on the Forced Disappearance of Persons ratified by Mexico on April 9,
2002, because likewise, this offense has been widely recognized as
continuing in Inter-American case law. Therefore, the IACHR has
jurisdiction ratione temporis to examine the grounds for the
claims of alleged violations of international instruments.
21. The
Inter-American Commission has jurisdiction ratione loci to be
apprised of the petition as claims of violations of rights protected by
the American Convention, the Convention of Belém do Pará, and the
Inter-American Convention on the Forced Disappearance of Persons and
taking place inside the territory of Mexico, which is a State party to
these treaties, have been made in it.
B. Other
requirements for admissibility of the petition
1. Exhaustion
of remedies under domestic law
22. Article
46.1.a of the American Convention provides that admission by the
Commission of a petition shall be subject to the following requirement:
“that the remedies under domestic law have been pursued and exhausted in
accordance with generally recognized principles of international law.”
Article 46.2 of the Convention specifies three cases in which the rule
of exhaustion of domestic remedies does not apply: a) if the legislation
of the state concerned fails to afford due process for the protection of
the right or rights allegedly violated; b) if the party alleging
violation has not been allowed to gain access to domestic remedies or
has been hindered in exhausting these remedies; and c) if there has been
unwarranted delay in the issuance of a final judgment on the
above-mentioned remedies. It must be emphasized that these principles
do not merely refer to the formal existence of these remedies, but also
to their adequacy and effectiveness. If they are to be adequate, their
functioning in the domestic law system must be suitable for protecting
the legal situation infringed. An effective remedy is one that is
capable of producing the outcome for which it was established.[17]
23. In the present
case, the parties claim a controversy regarding compliance with the
requirement that domestic remedies must have been exhausted as provided
for in Article 46.1.a of the American Convention, and therefore the IACHR must issue a ruling regarding this. The State contends that this
requirement has not been met, whereas the petitioners are invoking the
applicability of the exception to this rule because they deem there has
been unwarranted delay in taking substantive steps aimed at clarifying
the circumstances of the facts and at identifying and punishing those
responsible.
24. When a State
alleges that domestic remedies have not been exhausted, the burden
shifts to the Government to point out which specific domestic remedies
remain to be exhausted and to demonstrate their effectiveness.
In this case, the petitioners must demonstrate that these remedies were
exhausted or that one of the exceptions set forth in Article 46.2 of
the American Convention is applicable.
25. In the matter
being reviewed herein, the Mexican State has confined itself to
asserting that domestic remedies have not been exhausted and provides
information about the actions that were taken to address the problem of
violence against women in Ciudad Juárez.
It also mentions some of the steps that were taken in Silvia Arce’s case
file in 2004, but it does not present specific information that would
lead to the conclusion that the remedy is adequate and effective as
required by international human rights parameters.
26. Without
starting to analyze the arguments developed by each party about the
alleged violation of the right to due process and judicial protection,
the Inter-American Commission’s preliminary observation is that, on the
date of the acceptance of the present complaint, eight years have
elapsed since the day on which Silvia Arce disappeared and that this
event was reported to the competent authorities. According to the
information that the IACHR has available, to date the events that were
reported have not been completely clarified nor has it been determined
whether responsibility has been imputed to public officials, as reported
by the petitioners. Likewise, the Inter-American Commission notes that
the State has not provided specific information about progress in this
investigation in particular that would clarify the facts and punish
those responsible.
27. Likewise, the
Inter-American Commission observes that the petitioners claim that the
facts of the present case occurred in a context of numerous murders and
disappearances of women in Ciudad Juárez, which have remained unpunished
for reasons imputable to the authorities.
28. In the light
of all that was indicated above and the evidence appearing in the file
of this case, the Inter-American Commission finds, for the purpose of
admissibility, that there has been unwarranted delay in taking decisions
by the Mexican jurisdictional bodies regarding the events reported. As
a result, the IACHR applies the exception to the exhaustion of domestic
remedies as set forth in Article 46.2.c of the American Convention.
2. Deadline
for the presentation of petitions
29. Article
46.1.b of the American Convention provides that the petition must be
lodged within six months after the victim has been notified of the
definitive decision that all domestic remedies have been exhausted. The
Inter-American Commission does not consider that this requirement for
the petition being examined is enforceable, because the exception
indicated in Article 46.2.c has been applied and the petition was
submitted before a final judgment was issued, but within a reasonable
period of time as indicated in Article 32.2 of the Rules of Procedure.
3.
Duplication of proceedings and res judicata
30. The file of
the petition does not contain any information that might lead to the
understanding that the present case is pending in another international
proceeding for settlement or that it has been previously ruled on by the
Inter-American Commission. Therefore, the IACHR concludes that the
exceptions set forth in Article 46.1.d and Article 47.d of the
American Convention are not applicable.
4.
Characterization of the alleged events
31. In the present
case, the petitioners claim that the State is responsible for alleged
violations of the right to life, personal integrity, personal freedom,
due process, equality before law, judicial protection, the right of
women to a life without violence, principles guaranteed by the American
Convention, the Convention of Belém do Pará, and the Inter-American
Convention on the Forced Disappearance of Persons. As for the State, it
alleges that the petitioners have not exhausted domestic remedies and
therefore do not meet the requirements for admissibility.
32. Regarding
this, the Commission considers that it does not pertain to the present
stage of the proceedings to determine whether the alleged violations did
take place or not. For the purpose of admissibility, the IACHR must
decide whether the facts presented tend to characterize possible
violations of the Conventions, as stipulated by Article 47.b of the
American Convention.
33. The criterion
for evaluating these points is different from the one required to decide
on the merits of a complaint. The Inter-American Commission must
conduct a prima facie evaluation to examine whether the complaint
substantiates the apparent or potential violation of a right guaranteed
under the American Convention.
This analysis is of a preliminary nature and does not involve any
prejudgment or early opinion on the substance of the controversy. The
distinction between the study pertaining to the statement on
admissibility and the one required to determine a violation is reflected
in IACHR’s Rules of Procedure themselves, which clearly establish the
difference between the stage of admissibility and that of the merits of
the case.
34. The
allegations of the petitioners refer to events which, if true, would
constitute violation of various rights guaranteed by the American
Convention, the Convention of Belém do Pará, and the Inter-American
Convention on the Forced Disappearance of Persons. The IACHR deems that
the facts presented merit closer and more complete examination in the
substantial stage. Furthermore, although the petitioners have not
invoked Article 3 of the American Convention, by virtue of the iura
novit curia principle, the Commission shall admit allegations
referring to violations of this article.
35. The IACHR
considers that, if the facts are proven, they would constitute
violations of the rights guaranteed under Articles 3, 4, 5, 7, 8, 24,
and 25 of the American Convention, in connection with Article 1.1 and 2
of said instrument. Likewise, it considers that the facts presented
would constitute possible violations of Article 7; as well as of
Articles II and III of the Inter-American Convention on the Forced
Disappearance of Persons. With respect to Evangelina Arce, the
Commission considers that if proven, the facts might characterize
violations of the rights guaranteed under Articles 5, 8, 17 and 25 of
the American Convention.
36. Regarding the
duty to adopt domestic law provisions, the IACHR understands that, in
this case, it must analyze in the stage of the substance whether the
State fulfilled its obligation to take the measures needed to ensure the
effectiveness of the rights protected under the American Convention.
Particularly, this stage shall examined whether the State adopted the
measures or policies needed at the time of the events.
37. Considering
all of the above, the IACHR concludes that the petitioners have
demonstrated
prima facie
the points required in
Article 47.b of the American Convention.
V. CONCLUSIONS
38. The
Inter-American Commission concludes that it is competent to examine the
merits of this case and that the petition is admissible in accordance
with Articles 46 and 47 of the American Convention. On the basis of the
legal and factual arguments indicated above and without prejudging the
substance of the matter,
THE INTER-AMERICAN
COMMISSION ON HUMAN RIGHTS
DECIDES:
1. To declare
the present case admissible in terms of alleged violations of the rights
protected by Articles 3, 4, 5, 7, 8, 24 and 25 of the American
Convention, in connection with Article 1.1 and 2 of said instrument;
Article 7 of the Convention of Belém do Pará; and Articles I and III of
the Inter-American Convention on the Forced Disappearance of Persons.
As regards Evangelina Arce, it declares admissible Articles 5, 8, 17,
and 25 in connection with Article 1.1 of the American Convention.
2. To notify the
parties of this decision.
3. To continue
examining the merits of the case.
4. To publish
this decision and include it in its Annual Report to the OAS General
Assembly.
Done and signed in the city of Washington, D.C., on the 14th
day of the month of March, 2006. (Signed):
Evelio Fernández Arévalos,
President; Paulo Sérgio Pinheiro,
First
Vice-President;
Florentín Meléndez,
Second
Vice-President;
Clare K.
Roberts, Freddy Gutiérrez, Paolo G. Carozza
and
Víctor E. Abramovich, Members
of the Commission.
In this regard, see IACHR, Case 11,516, Ovelario Tames, Annual
Report 1998, (Brazil), paragraphs 26 and 27, Case 11,405 Newton
Coutinho Mendes and others, Report 1998 (Brazil), Case 11,598 Alonso
Eugenio da Silva, Annual Report 1998 (Brazil), paragraphs 19 and 20,
Case 11,287 João Canuto de Oliveira, Annual Report 1997 (Brazil).
Case 12,051, Maria Da Penha Maia Fernandes, Annual Report 2001
(Brazil). Also see I/A Court H.R., Blake Case. Preliminary Exceptions
Judgment of July 2, 1996, paragraphs 39 and 40; I/A Court H.R., Velásquez Rodríguez
Case. Judgment of July 29, 1988, paragraph 155; and I/A Court
H.R., Case of Godínez
Cruz, Judgment of January 20, 1989, paragraph 163. Likewise, in the
Genie Lacayo Case (paragraphs 21 and 24, Preliminary Exceptions),
it has accepted to review the violation of Articles 2, 8, 24 and 25,
which was part of a denial of justice that started prior to the
non-retroactive acceptance of the Court’s jurisdiction but then
continued after it. In addition, the notion of continuing situation
is also legally recognized by the European Court of Human Rights, in
decisions on imprisonment cases going back to the sixties; and by
the Human Rights Committee whose proceedings under the United
Nations International Covenant on Civil and Political Rights and its
first Optional Protocol, as of the early eighties, contain examples
of the examination of continuing situations generating events that
occurred or persisted after the date of entry into force of the
Covenant and Protocol regarding the State concerned and which
constitute in themselves violations of the rights enshrined in the
Covenant.
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