REPORT Nº 25/96
April 29, 1996
This Commission report concerns the admissibility of the present
case, considering that the Government has on repeated occasions
expressed that the case should be declared inadmissible insofar as the
petitioners have not exhausted all of the means of recourse available
within the Mexican judicial system.
According to the information provided by petitioners to the
Inter‑American Commission on Human Rights (hereinafter the
Commission), on January 7, 1994, agents of the Mexican Army violently
entered the indigenous community of Morelia, Altamirano municipality,
Chiapas. Said agents
violently entered houses, removing the men with blows and kicks,
gathered them together in the church and the basketball court of the
ejido, and forced them to throw themselves on the ground with their
faces against the concrete. While
they were held in these conditions, the soldiers looted the houses and
stores of the village and destroyed the medical clinic.
Three of the inhabitants, Severiano, Hermelindo, and Sebastián
Santiz Gómez, were removed from the group based on a list an Army
captain had and taken to the church vestry, where they were tortured;
later they were placed in a military vehicle.
On February 11, 1994, the remains of the three indigenous men
were found on the road that runs between Altamirano and Morelia.
PROCESSING BEFORE THE COMMISSION
On November 23, 1994, the Commission received a petition
denouncing the responsibility of the Mexican State for the alleged
violation of Articles 4, 5, 7, 8, 25, and 1(1) of the American
Convention on Human Rights (hereinafter the American Convention).
The Commission forwarded the pertinent parts of the complaint to
the Government of Mexico on December 12, 1994, and requested that it
provide information about the allegations, and in respect of any other
criteria that would allow it to determine whether domestic remedies were
exhausted in this case; it gave the Government 90 days to respond.
On February 1, 1995, the Commission received additional
information from petitioners and forwarded it to the Government of
Mexico on February 8, 1995.
On March 9, 1995, the Government requested a 30-day extension to
collect the documentation so as to provide an adequate response; the
Commission granted this request on March 13, 1995.
On April 10, 1995, the Government requested a second 30-day
extension to collect the documentation so as to provide an adequate
response; the Commission granted this request on April 17, 1995.
On May 15, 1995, the Government requested a third 30-day
extension to collect the documentation so as to provide an adequate
response; the Commission granted the request on May 17, 1995.
By note received on June 19, 1995, the Government submitted its
response in relation to the case under consideration.
The petitioners submitted their observations to the Government's
response on September 13, 1995, and the Government of Mexico submitted
its final observations on November 22, 1995.
April 23, 1996, the Government presented additional information as to
the right to resort to fall back on resolutions or omissions of the
Attorney General's Office, based on Article 21 of the Federal
POSITION OF THE PARTIES ON ADMISSIBILITY
Position of the petitioners
Petitioners have argued that in the investigation of the facts
alleged, those responsible for the investigation have displayed a
complete lack of will, there has been no significant advance since the
events in question. That upon the discovery of the bodies, the Attorney General
for the State of Chiapas began preliminary inquiry No. AL/014/994, which
has remained open without any progress in the investigation.
That in September 1994, the Assistant Attorney General for the
State said that the investigation could not be continued since it was
not feasible to reach the location of the events, given that the Army
would not allow entry as the area in question was a conflict zone.
That parallel to the preliminary inquiry of the Office of the
Attorney General of the State of Chiapas, preliminary inquiry No.
332M/04/94 was begun before the Military Public Ministry, though it is
not known who is in charge of the inquiry.
That pursuant to the criterion upheld by the Supreme Court of
Justice, there is no remedy for acts or inertia by the Public Ministry,
and consequently the victims lack an effective and simple remedy that
might cause the investigations to be continued.
also stated that the Government's position has been to deny any
responsibility for the events giving rise to this complaint.
That the Secretariat for National Defense (SEDENA), in its
communique No. 30 of February 14, 1994, maintained in reference to this
Military authorities answered the demands for information from
political organizations, and human rights groups interested in the case;
they sufficiently established that the three individuals, who remain
disappeared to this day,
were never detained by military personnel, since on January 7
there was no military presence in the ejido.
their observations of September 13, 1995, the petitioners reiterated
that there is a delay in the investigation of the case, as well as a
series of serious anomalies in the process, and also governmental
declarations contradicting the facts, which together establish the
Government's lack of will to clarify the facts. That the remedies to be exhausted should be only those
appropriate for resolving the events giving rise to the complaint and
not each and every entity to which they might have recourse.
That the appropriate remedy was the preliminary inquiry, which in
the 18 months since the events denounced in this case, has yet to
produce any concrete result.
Likewise, the petitioners indicated that Article 21 of the
Mexican Constitution, while providing for challenges to resolutions of
the Public Ministry in which it refrains from acting, is currently
pending regulation, and so has no practical application.
In addition, the petitioners stated that another circumstance
that exempts them from the prior exhaustion of domestic remedies is the
negligence and contradictions in the study of the remains of the three
men shown by the Mexican authorities.
That in the morning of February 11, 1994, a group of members of
non-governmental human rights organizations traveled to Morelia, where
they found dispersed bones and fragments of clothing.
That among the skeletal remains there were partial and complete
mandibles, one of which had extensive silver dental work which Sebastián's
son Humberto identified as his father's.
That the identification and study of these remains was not
carried out by specialized personnel, and that upon completion of this
work, they left behind a human rib and pieces of scalp on the ground.
In addition, they placed the remains in bags indiscriminately,
mixing them up with no logic.
The Government's Position
Government has said that not only have the petitioners failed to comply
with the requirement of exhausting domestic remedies, but that they have
not even made use of them, for had any irregularities arisen in seeking
justice attributable to the Agent of the Public Ministry, whether a
federal or local public servant, the petitioners could recur to either
the Contraloría General of the State of Chiapas or to the Secretariat
for National Defense, to denounce the respective Agent of the Public
Ministry, and to lodge the respective complaints with the Federal Public
Similarly, it has stated that the Mexican Constitution was
reformed on December 31, 1994. That
among the reforms most relevant to improving of the administration of
justice, was one regarding the possibility of challenging--through
judicial channels, in the terms established by law--the Public Ministry
rulings on the failure to prosecute and on dismissal of criminal
proceedings. That to date
Article 21 has yet to be regulated, and that lacking such regulations,
the indirect amparo serves as a means of defense.
Likewise, it has indicated that regarding the delay in the
investigation, both the Attorney General of Chiapas and the Office of
the Attorney General for Military Justice, not only did not delay the
respective investigation, but that once aware of the complaint, they
diligently investigated and initiated, in their corresponding
jurisdictions, the appropriate preliminary inquiries. That in this
sense, the Office of the Attorney General for Military Justice resumed
the work of organizing and consummating the respective investigation.
The Government has added that the experts who examined the
remains were highly qualified professionals who produced an expert
opinion in forensic pathology and dentistry, forensic medicine, and
field criminology, pursuant to their appointment as experts by the
Attorney General for Military Justice to give an opinion in preliminary
inquiry No. 33Z.M./04/94-E.
In its final observations of November 22, 1995, the Government
reiterated its initial statement regarding the failure to exhaust
domestic remedies or to establish exceptions to this requirement.
The Government notes that because the
petitioners did not invoke the first exception to prior
exhaustion, stipulated in Article 37(2) of the Regulations of the IACHR,
they recognize that under the domestic law of Mexico, legal remedies and
procedures do exist to protect the rights allegedly violated.
That it is evident that, given that legal and procedural remedies
do exist, the petitioners
could recur to them, and if they did not it was the result of their own
decision, either out of negligence or ignorance, given that their access
to said remedies was never impeded.
the Government stated that the exception contained in Article 37(2)(c)
of the Regulations does not apply, given that there was no unjustifiable
delay in the investigation of the events by the Public Ministry
attributable to that institution; the pace of the proceedings has
corresponded to the need for an exhaustive and meticulous investigation,
due precisely to the seriousness of the situation, and the only delays
were caused by individuals who, having been summoned in a timely and
appropriate manner, did not come before said institution to provide the
information and knowledge that they possessed and help shed light on the
events in a more effective and prompt manner.
That the Military Public Ministry has carried out its function of
investigating the case, but unfortunately it has not received the
cooperation it needs to clarify the events.
Likewise, the Government argued that as the petitioners indicate,
the Public Ministry is the most appropriate body for hearing human
rights violations; however, they did not recur to it to present a formal
denunciation or complaint so that the corresponding criminal case could
be brought. That in view of
the fact that no formal indictment was handed down, the military
authorities assumed the investigation as a duty of their own, based on
statements made by Mr. Martín Faz Mora at a press conference.
That later in declarations made by Mr. Faz Mora to the competent
authorities, he acknowledged that he only knew of the events from
statements made by neighbors from the area, a circumstance which
undercuts the evidentiary value of his statement.
the Government stated that after the inquiries had been carried out and
the necessary documentation obtained, the Agent of the Military Public
Ministry who heard the matter requested that the case be closed without
prejudice, given the failure to show any military responsibility, that
the assistants of the Office of Attorney General for Military Justice
did not find this situation proper, and decided to refer the case to the
preliminary investigations division of the Office of the Attorney
General for Military Justice, for the prosecution, consummation and
ruling on the case at the appropriate point in the procedure, and it
remained registered under No. SC/60/94/V.
That for these reasons, the investigation was suspended, from
April 15, 1994 until May 26, 1995, when the National Human Rights
Commission provided new information.
That on November 9, 1995, as there was no evidence demonstrating
the existence of elements of any military offense, nor the probable
responsibility of military personnel in the commission of any offense,
the Ministerial Agent of the military jurisdiction determined that the
events that gave rise to the investigation did not constitute an
offense, and consequently decreed the case closed without prejudice.
Considerations regarding the competence of the Commission
Commission is competent to hear this case because it addresses
violations of rights recognized in the American Convention:
Article 1(1), on the obligation to respect the rights; Article 4,
right to life; Article 5, right to humane treatment; Article 7, right to
personal liberty; Article 8, right to a fair trial; and Article 25,
right to judicial protection, as established in Article 44 of said
Convention, to which Mexico has been a party since April 3, 1982.
Considerations regarding the formal requirements for
petition meets the formal requirements of admissibility set forth in
Article 46(1) of the American Convention and Articles 32, 37, 38, and 39
of the Regulations of the Commission.
In effect, the petition contains the information on the
petitioners, the description of the events alleged to violate the human
rights protected by the American Convention, and identification of the
government considered responsible for the alleged violation.
Likewise, the complaint was presented within the time period
established for submission, is not pending in any other international
proceeding for settlement, nor is it the reproduction of a petition
already examined by the Commission.
Regarding the requirement of previous exhaustion of domestic
remedies, pursuant to Article 46(1)(a) of the American Convention, so
that a petition or communication submitted to the Commission is
considered admissible pursuant to Articles 44 or 45, it is required
"that the remedies under domestic law have been pursued and
exhausted in accordance with generally recognized principles of
Paragraph 2 of this Article establishes that the provisions
regarding the exhaustion of domestic remedies are not applicable when:
the domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been unwarranted delay in rendering a final judgment
under the aforementioned remedies.
The petitioners have stated that the Office of the Attorney
General for the State of Chiapas opened preliminary inquiry No.
AL/014/994, which remains open. Likewise,
that the Military Public Ministry began preliminary inquiry No.
332M/04/94. That 18 months
have passed since the events occurred and the necessary investigations
have not been carried out.
Government has noted that the delay in the investigations was due to the
need for an exhaustive and meticulous investigation.
It also indicated that the only delays that occurred were caused
by individuals who, having been summoned in a timely and appropriate
manner, did not come before said institution to provide the information
and knowledge at their disposal so as to help clarify the facts more
effectively and promptly.
right to a trial "within a reasonable period of time" provided
for under the Inter-American Convention is grounded, inter alia,
in the need to avoid undue delays constituting a denial of justice,
prejudicial to persons invoking the violation of rights protected by the
consideration of the foregoing, the Court has said that "the rule
of prior exhaustion must never lead to a halt or delay that would render
The mere fact that the pursuit of domestic remedies continues
does not mean that the Commission is not authorized to analyze the case,
for this would allow the State to conduct investigations and domestic
judicial processes, prolonging them unreasonably without the
inter-American system being able to intervene.
the record it appears that more than two years have passed since the
events, without the respective criminal proceedings having been brought
to date, nor is there any well-founded indication that it will be
brought, as the investigations are notably delayed, suggesting that they
will not produce any positive result.
This is confirmed as well by the Government statement to the
Commission that on "November 9, 1995, the Ministerial Agent for
military jurisdiction determined that the events that gave rise to the
investigation did not constitute offenses; consequently, it is decreed
that the case be closed without prejudice."
The Government of Mexico has also stated that several remedies
exist which the petitioners could have availed themselves of prior to
coming before an international body, such as the Contraloría General of
the State of Chiapas, the Secretariat for National Defense, and the
Federal Public Ministry. That
likewise, the December 1994 reform of the Constitution provides at
Article 21 the possibility of challenging the resolutions of the Public
Ministry in those cases; however, they add that despite that this
article is pending regulation, the same has been interpreted by the
Federal Courts in two ways: first, that claims contesting resolutions by
the public ministry "would be subject to a secondary law to be
created in the future"; and second "that such a law already
exists and is in fact the Law on Jurisdiction, which establishes the
means of contesting such resolutions".
The Inter‑American Court has noted that "Article 46(1)
of the Convention speaks of generally recognized human principles of
international law. Those
principles refer not only to the formal existence of such remedies, but
also to their adequacy and effectiveness, as shown by the exceptions set
out in Article 46(2)."
That they be adequate means that the operation of these remedies,
in the domestic legal system, should be such as to provide protection
vis-à-vis the infringed legal right.
That they be effective means capable of producing the outcome for
which they were intended.
Applying these principles to this case, the Commission observes
that "a number of remedies exist in the legal system of every
country, but not all are applicable in every circumstance."
In this case, the Commission considers that while domestic
remedies exist in Mexico that have not been exercised, the Government
has not demonstrated that they are adequate or effective for addressing
the alleged violations, capable of ensuring that the necessary
investigations of the events denounced and now before us be swiftly
argument by the Mexican Government in favor of applying Article 21 of
the Federal Constitution of Mexico also fails, insofar as the available
means of recourse must be simple, swift and effective in accordance with
Article 25 of the American Convention, since, even though an
interpretation has been allowed in some cases permitting the exercise of
indirect jurisdiction, this interpretation has not met with widespread
acquiescence in the Mexican courts: indeed, as the Government of Mexico
has indicated, there is another opposite interpretation on this matter,
under which the means of recourse referred to in Article 21 of the
Constitution is to be the object of legal regulation.
Commission, based on the arguments presented above, concludes that the
exemptions from requirements that domestic means of recourse be
exhausted, as provided for in Articles 46.2 (b) and (c) of the American
Convention, are applicable in this case, and thus exempt the petitioners
from fulfillment of this condition for admissibility.
THE INTER‑AMERICAN COMMISSION ON HUMAN RIGHTS,
declare admissible the complaint presented in case 11.411, pursuant to
Articles 46, 47, and 48 of the American Convention.
send this report to the Government of Mexico and the petitioners.
summon the parties to a hearing to be held by the Commission during its
93rd Regular Session.
continue to consider the substantive issues on the merits raised in the
publish this report in the Annual Report to the General Assembly of the