319. The Federal Law to Prevent and Punish Torture states that "no confession or information obtained by torture may be introduced into evidence."(77) In practice, however, the burden of proof is on the victim of torture, since it is he who must prove that he has been tortured, which is often a difficult thing to do.(78) (79) Procedurally, the statement given by the accused person to the police authorities has full legal validity if he is unable to prove that he was subjected to torture.(80) Hence, the Mexican Supreme Court itself has stated that:

Proof of coerced confession: When the confessor does not provide any evidence to prove his assertion that he was subjected to violence by a State organ, his statement is insufficient to deprive his initial confession of the spontaneity required for it to be legally valid.(81)

320. On this point, the IACHR states that in the case of a statement or testimony in which there is a well-founded suspicion or presumption that it was obtained by some type of coercion, be it physical or psychological, the Mexican courts must determine whether such coercion did actually exist. In the event that a statement or testimony obtained in these circumstances is admitted and used during the trial as an element of evidence or proof, that state may incur international responsibility.

321. With a view to reducing the incidence of torture, the constitutional reform provided that only confessions made before the public prosecutor or the judge of the case, and in the presence of the declarant's attorney or other person who enjoys the confidence of the accused, shall be admitted for trial purposes.(82) Despite the progress which this reform represented, persons accused or suspected of having committed crimes continue to be subjected to torture, which generally take place before their attorneys arrive and, in some cases, the Commission has learned that court-appointed public defenders fail to bring complaints of torture to the attention of the competent authorities. The Commission also learnt during its visit to Mexico that the person of confidence to which the Constitution refers is designated by none other than the Public Prosecutor or that an ex officio public defender is appointed who is not present but who later signs a document attesting to his presence.

322. In conjunction with the foregoing, the United Nations Special Rapporteur referred to the problem of public defenders in cases of torture:

In the absence of a private attorney, the court-appointed attorney appears to be present at the time a statement is taken and does not appear to have (or to exercise) the right to follow the person if he or she is taken back to police headquarters. Moreover, it was generally acknowledged that court-appointed defense attorneys do not have the necessary qualifications, they are very poorly paid, and they have virtually no established position vis-à-vis the other participants in the proceedings. Frequently, the victims did not even know that one of the persons around them was in fact a public defender, who was supposedly on their side. In short, the court-appointed defenders cannot be counted on to defend the accused.(83)

III. IMPUNITY OF TORTURERS

323. The Commission has received numerous complaints that victims of torture face innumerable obstacles in their attempts to bring legal actions against their alleged torturers and that when such actions are brought they do not reach completion. One of the greatest obstacles is that torture, as a federal crime, is required to be investigated and prosecuted by the federal judicial police.(84) This means that there is a lack of independence in the investigation, since it is common for the party that simultaneously investigates (Office of the Public Prosecutor) and assists in the investigation (judicial police) to be acquainted with and to cover up those whom it is investigating (judicial police and others), thereby creating a climate of impunity for torturers.

324. Mention must be made of Article 8 of the Inter-American Convention to Prevent and Punish Torture, which provides that: "States Parties shall guarantee the right of any person within their jurisdiction who makes an accusation of having been subjected to torture to an impartial examination of his case." For its part, Article 13 of the United Nations Convention against Torture provides that: "Each State Party shall ensure that any individual who alleges he has been subjected to torture ... has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities...."

325. In addition, it has been noted that the judiciary in Mexico has often played a complicitous role in the impunity of torturers, in that it has shown no real willingness to punish those guilty of acts of torture:(85)

In this stage of the struggle against torture, the judiciary is still not fully behind the effort, since convictions have been handed down in only four cases, while in 14 cases it refused to issue a warrant of arrest. In five cases, courts have rescinded and in two they have issued orders for the release of accused persons ... There is, of course, more data, but I wish to make it clear that much remains to be done to raise awareness among the various authorities about the importance of ensuring that torture is punished severely and in accordance with the law....(86)

326. Failure to impose the appropriate penalties on persons or public employees who refuse to cooperate in the criminal proceedings must be taken as an expression of judicial negligence, the effect of which is to protect the authors of acts of torture. It also means a failure by Mexico to fulfil its obligation to ensure the free and full exercise of judicial rights and judicial protection to the persons within its jurisdiction.(87)

327. The Commission also notes that once an act of torture has been committed, the State has an international obligation to take effective measures to investigate and punish the persons responsible for such acts or for other cruel, inhuman, and degrading treatment to which persons have been subjected within its jurisdiction.(88) The fact that a State has a law that severely punishes acts of torture is not, per se, sufficient to guarantee compliance with its international obligation to take effective measures to punish such acts, if the organs of the State in question which are responsible for applying and enforcing that law do so in a partial manner or in only a few cases.(89) Consequently, the State must ensure the punishment of persons responsible for acts of torture. Similarly, among the effective measures which the State must take is to ensure redress and the right to fair and adequate compensation for the victims of torture, including the means for as full rehabilitation as possible.(90) To date, the Commission has no knowledge of any case in Mexico in which any redress, including compensation and rehabilitation, has been obtained by the victims of torture.

328. Similarly, Mexico has the legal duty to prevent acts of torture. To this end, it must take such legal, political, administrative and cultural measures as are necessary to safeguard the personal integrity of all persons within its jurisdiction. As the Inter-American Court of Human Rights has indicated that:

... subjecting detained persons to official, law-enforcement organs which engage with impunity in the practice of torture and assassination is itself a breach of the duty to prevent violations of a person's right to life and to physical integrity, even if a particular person is not tortured or assassinated, or if those facts cannot be proven in a specific case.(91)

IV. TORTURE IN CONFLICT ZONES

329. As was indicated in this report in the chapter on the right to justice (Chapter V), the IACHR found that following the emergence of the Zapatista National Liberation Army (EZLN) in 1994 and of the so-called Ejército Popular Revolucionario (People's Revolutionary Army) (EPR) in 1996, a campaign of repression has been unleashed in several Mexican states by both police and military forces with a view to apprehending members of armed dissident groups.

330. The IACHR has repeatedly recognized the duty of States to provide the necessary means to guarantee the security of its citizens and the defense of its territory, within the framework of a democratic society. However, in the case of Mexico, the IACHR has received various complaints and information, since the outbreak of the armed conflict, documenting violations of human rights and of international humanitarian law in the areas affected by conflict.(92) According to testimony received by the Commission, the civilian population is constantly being searched and harassed by the Armed Forces under the pretext of pursuing allegedly armed groups of dissidents.

331. These joint operations which are carried out in various parts of Mexico, especially in areas of major social and political protests or where armed groups are presumed to operate, have been characterized --as various non-governmental human rights organizations have indicated-- by arbitrary arrests, torture and threats, as well as intimidation against peasants and other citizens from various social and political organizations. The Commission has received information that the army has tortured detained peasants --especially in the states of Guerrero and Oaxaca-- in an effort to obtain information on the EPR or to force them to make statements linking peasant leaders to that guerrilla group.(93)

332. As was indicated in this report, during its on-site visit the IACHR was able to verify that many of the arrests of alleged members of the EPR were carried out by members of the Mexican army and that some of these guerrillas were effectively tortured to get them to confess their involvement. During its on-site visit to penitentiary center of the city of Acapulco, the Commission was thus able to meet with and question eight alleged EPR members and directly observed that these persons had been badly beaten and had visible signs of torture by electrical device on their bodies.

333. In addition, among other cases, it has been reported that the Zapotec indigenous community of San Agustín Loxicha, in the state of Oaxaca, has been the victim of enforced disappearances, arbitrary arrests without warrants, illegal searches of homes, torture, beatings, and ill-treatment by members of both the judicial police and the army.(94)

334. Another example is provided by the relatives of the 25-year-old Mr. Domingo Jiménez Sonora, who was arrested by the army on July 1, 1996, accused of possession of a firearm, and brought before the Public Prosecutor seven days after his arrest. During the period of his disappearance, he allegedly suffered various forms of torture: he was bound hand and foot and kept exposed to the elements, regularly beaten, denied food or drink and thus was able to consume only rain water, and before being brought to prison he was taken up on a military helicopter and hung by his feet over the sea in a simulated execution to get him to confess all he knew about the EPR. At least two other witnesses have reported the same experience, although they were captured at different times and places; their names are Lorenzo and Jerónimo Adame del Rosario, both residents of the town of Tepetixtla, in the state of Guerrero.(95)

335. Reference should also be made to the events linked to operations by the Mexican security forces in El Charco on June 7, 1998, mentioned in the chapter of this report which discussed the right to life. When these operations were over, one of the detainees, Erika Zamora Pardo, made serious accusations:

…I declare that the Federal Army forced me to sign a military statement by using physical and psychological torture. They blindfolded me, took off all of my clothing, and gave me electric shocks on my feet. The statement made in the presence of the Federal Public Prosecutor was made under the pressure of State agents, who forced me to name and involve persons, while threatening me and my family with disappearance.(96)

336. The Commission will continue its consideration of this allegation, in light of the available information and of action taken by the Mexican government to shed full light on the events in question.

337. Based on the preceding information, the Commission believes that the Mexican State should pay special attention to and supervise its agents operating in areas of armed conflict, since the situation of conflict may encourage the use of torture by some members of the Armed Forces as a means of defeating the armed dissident groups and maintaining social order.(97) Based on clear rules of international human rights law and international humanitarian law, the Commission emphasizes that the existence of factual or legal circumstances, such as a state of war, threat of war, state of siege or emergency, internal disturbance or conflict, domestic political instability or other analogous situations, the dangerousness of the person detained, or other factors, can in no way justify any acts of torture, or other human rights violations.(98)

V. RECOMMENDATIONS

338. In light of the situation reviewed above, the IACHR makes the following recommendations to the Mexican State:

339. To adopt the measures toward ensuring that acts of torture are characterized and punished as such by jurisdictional organs, in accordance with the international definition of this violation of the right to personal integrity.

340. To characterize acts of torture as such and not as other types of crime.

341. To take the necessary measures to exercise effective judicial supervision over the arrest and the agencies entrusted with making the arrest, since detention and arrest are among the most critical phases in any criminal proceeding during which the detainee is under the exclusive control of the police.

342. To give the relevant instructions to State agents making the arrest to inform the persons being arrested, at the time of such arrest, of the reasons for their arrest and of their rights and guarantees in terms that he or she can understand, taking into account the person's background, educational level and language spoken.

343. To implement specific programs to educate and train public officials responsible for enforcing the law about the absolute prohibition of acts of torture and of all cruel, inhuman or degrading treatment or punishment.

344. To guarantee the right of those arrested to communicate immediately with an attorney of their choice.

345. To take the necessary measures to ensure that the states of Puebla and Tlaxcala adopt specific legislation on torture.

346. To adopt the necessary measures, legislative or of other nature, to ensure that the statement which the accused makes before the competent judge in the case is deemed to be the only valid confession, eliminating expressly the incriminating value of confessions made to the judicial police.

347. To provide specific guidelines for the competent authorities requesting them to reject any statement or testimony in which there are presumptions or good reason for believing that such statement or testimony was obtained by coercion or physical or moral torture.

348. To investigate and punish, with the severity required by each specific case, those responsible for acts of torture.

349. To take all necessary steps to ensure that victims of torture are rehabilitated and provided with fair and adequate compensation.

350. To instruct the relevant authorities to pay special attention to and properly supervise State agents (army and police) in combat zones with a view to preventing acts of torture.

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77. Federal Law to Prevent and Punish Torture, article 8.

78. The United Nations Special Rapporteur on Torture, in his report of January 10, 1991, notes in section 6 that:

... Even in cases where there is a persistent pattern of torture in a country, it is difficult to establish with absolute certainty whether a specific person has been tortured without conducting a careful medical examination.... Torture is invariably practiced in private, and the only witnesses are the accomplices to the act. Physical signs, if any, often disappear or heal, or can be ascribed to other causes. In that sense it can be said that torture is the most private of human rights violations.... therefore, it is implicitly recognized that torture does not begin in the interrogation room, but rather the decisive moment is when the victim is deprived of his liberty. From that moment he is in a situation in which he may be subjected to torture....

United Nations, E/CN.4/1991/17.

79. One reality that clearly shows the difficulty proving the facts of torture in Mexico is pointed out by the Human Rights Commission of the Federal District, in its Recommendation 2/97:

It is striking that the current routines for documenting detentions or stays of detainees in facilities of the Office of the Attorney General are insufficient to facilitate the detection of anomalies in the preliminary investigative proceedings.

80. Article 10 of the Inter-American Convention to Prevent and Punish Torture also provides that:

…no statement that is proven to have been obtained by torture shall be admissible as evidence in a legal proceeding, except in a proceeding brought against the person or persons accused of having elicited the statement through acts of torture, and only as evidence that the accused obtained the statement by such means.

81. Idem.

82. See article 20, II of the Mexican Constitution.

83. United Nations, E/CN.4/1998/38/Add.2, par. 81, p. 24.

84. It has been noted that victims of torture in Mexican are often afraid to accuse the persons responsible. Asked why he did not bring a complaint before the judicial authorities for the ill-treatment suffered, one person answered: "After having been beaten and threatened, do you feel like repeating it before the same authorities?" Most citizens see no difference between the role of the police, the public prosecutor's office and the judges. See Miguel Sarre and Fernando Arturo Figueroa (Minnesota, p. 16).

85. The IACHR has received information that the National Commission has recognized in its reports the existence of 105 cases of torture. In reality, criminal charges been brought against only 53 public employees for the crime of torture, and in 14 cases for the crime of murder which originated in torture.

86. Op. cit. at 7.

87. The Inter-American Court of Human Rights in its judgment in the Velásquez Rodríguez Case stated that:

The State is obligated to investigate every situation involving a violation of the rights protected by the Convention. If the State apparatus acts in such a way that the violation goes unpunished and the victim's full enjoyment of such rights is not restored as soon as possible, the State has failed to comply with its duty to ensure the free and full exercise of those rights to the persons within its jurisdiction....

88. Inter-American Convention to Prevent and Punish Torture, article 6.

89. In its judgment in the Velásquez Rodríguez Case, the Inter-American Court of Human Rights held that: "The obligation to ensure the free and full exercise of human rights is not fulfilled by the existence of a legal system designed to make it possible to comply with this obligation -- it also requires the government to conduct itself so as to effectively ensure the free and full exercise of human rights." (paragraph 167)

90. Article 14 of the United Nations Convention against Torture provides that:

Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

See also article 8 of the Inter-American Convention to Prevent and Punish Torture.

91. Inter-American Court of Human Rights, Velásquez Rodríguez case, Judgment of July 29, 1988.

92. See, for example: Human Rights Watch/Americas, Mexico: The New Year's Rebellion: Violations of Human Rights and Humanitarian Law During the Armed Revolt in Chiapas, Vol. VI, No. 3, March 1, 1994; Human Rights Watch/Americas and Physicians for Human Rights: Waiting for Justice in Chiapas (December 1994); and Human Rights Watch/Americas, Mexico: Army Officer Held "Responsible" for Chiapas Massacre: Accused Found Dead, Defense Ministry, Vol. 7, No. 7, June 1995.

93. "Fray Francisco de Vitoria O.P" Center for Human Rights, Report on the situation of human rights in Mexico, 1995-1996."

94. Mexican Commission for the Defense and Promotion of Human Rights AC, "Human rights in Mexico since the reform of the laws governing public security and organized crime", March 5, 1997.

96. "La Jornada" newspaper, Erika Zamora: me obligaron bajo tortura a implicar a gente inocente ["Erika Zamora: They tortured me to get me to name innocent people], published on the internet on June 18, 1998.

97. The United Nations Special Rapporteur on Torture has noted that "when facing a noisy opposition or an armed uprising, drowning the opposition or crushing the insurgents will appear to have the highest priority...all other priorities are subordinated to it. In such circumstances it will be very easy to use torture with the dual objective of obtaining information and inspiring terror. Torture becomes a political tool for achieving this top priority."

98. See Article 5 of the Inter-American Convention to Prevent and Punish Torture.