Number 21 9 Year January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION

Anniversary20 1997-2017 Impunity and grave human rights violations in respect and consideration. Its findings on the case—set forth in From the editor two reports—were essential, but the most important legacy may Over the past decade, the human rights situation in have been its in-depth look at the Mexican criminal justice Mexico has deteriorated markedly. The war on drug system and the GIEI’s recommendations for improving it. A perfect complement to the GIEI’s work was the report trafficking has played a critical role in increasing Undeniable Atrocities: Confronting Crimes Against violence perpetrated by criminal groups, but also Humanity in Mexico, published last year by the Open crimes committed by government forces. Although Society Justice Initiative (OSJI) and five Mexican civil society organizations. This report presents a rigorous analysis of the Mexican government acknowledges this the crimes committed in Mexico during the past decade and situation and has taken measures to address it, establishes reasonable grounds to consider that crimes against reality shows us that human rights violations—and, humanity have been committed by both State and non-State significantly, the lack of an appropriate response actors, who must be properly investigated and prosecuted. This report also offers several recommendations aimed from institutions of the Mexican justice system— at different actors, highlighting the proposed creation of an continue to be the rule rather than the exception. international mechanism for the investigation of heinous crimes and major corruption cases in Mexico. On the night of September 26, 2014, 43 students of The assessment is clear: the Mexican judicial system the Raúl Isidro Burgos Rural Teachers’ College in Ayotzinapa, has the enormous responsibility of providing an appropriate Guerrero, disappeared. Although this was neither the first nor response to the legacy of serious human rights violations the last case of disappeared persons in Mexico, the number who committed during the past decade. If current conditions make went missing, the fact that they were students, the involvement this difficult, we must think outside the box and not rule out of multiple levels of government forces, and the persistence of international support, as happened in the case of the students their relatives made this case a turning point that unleashed from Ayotzinapa. national and international public indignation. In order to contribute to this reflection, but also to help the Under the precautionary measures that were processed rest of the hemisphere better understand the circumstances in before the Inter-American Commission on Human Rights Mexico, we are dedicating this edition of AportesDPLF to the (IACHR) in this case, the Interdisciplinary Group of current situation of human rights in Mexico. Independent Experts (GIEI) was created through an The first section of this edition examines the serious agreement between the IACHR, the Mexican State, and human rights violations taking place in Mexico. On this subject, representatives of the victims. The GIEI was tasked with the former Attorney General of Guatemala, Claudia Paz y conducting a technical verification of the actions taken by the Paz, explains to us how the Ayotzinapa case exposed the main Mexican State after the students’ disappearance, with respect shortcomings of the Mexican criminal investigation system. to locating them and exhausting the lines of investigation, as Based on her experience as a member of the GIEI, she proposes well as providing services and reparations to the victims. a number of recommendations for improving the system. Along The GIEI was an unprecedented experience of State-IACHR these same lines, Ariel Dulitzky, a member of the United Nations cooperation and case monitoring in real time. Composed of five Working Group on Enforced or Involuntary Disappearances, international experts, the GIEI showed us that it is possible to sets forth 20 points for the creation of a public agenda for the investigate this kind of atrocity while treating the victims with prevention and eradication of forced disappearance in Mexico.

Number 21, Year 9, January 2017 The former UN Special Rapporteur on Torture, Juan Méndez, To conclude this edition, the fifth section, entitled From the shares his main conclusions from the mission he conducted to states, provides a window on the situation in the interior of the Mexico in his capacity as rapporteur. This section is concluded country. Sister Consuelo Morales and Ana Claudia Martínez by Eric Witte of OSJI, who offers an in-depth analysis of why describe the current conditions in Nuevo León, highlighting the certain crimes currently being committed in Mexico could be role of public opinion in the proper implementation of the new considered crimes against humanity. criminal procedure system in that state. In Chihuahua, Lucha The reform of the Mexican criminal justice system is Castro tells us how, in view of the security crisis unleashed addressed in the second section of this edition. Miguel Sarre by the war on drug trafficking, civil society and the state calls attention to the false dichotomy between defendants’ rights government have formed a partnership to combat impunity and and the right of victims to truth and justice, while Iván de la corruption. From Coahuila, Michael Chamberlin explains how Garza addresses ongoing challenges in the implementation of the joint efforts of relatives of disappeared persons created an the new adversarial criminal justice system, in effect throughout impact that led to the creation of a Working Group composed of Mexico since June 2016. Finally, Carlos Ríos examines the civil society, the United Nations, and state authorities, which has role of precautionary measures in the new adversarial system promoted state reforms on the issue of forced disappearance. and explains how the culturally rooted values of the inquisitorial César Pérez details how the practice of torture continues to go unpunished in the state of Jalisco, despite state reforms to system could hinder the proper implementation of pretrial criminalize such conduct. Finally, David Lovatón shows that the detention. state of Yucatán—although it does not face the same serious The third section includes some reflections on human rights situation as the rest of the country—also has fundamental institutional reforms that are being carried out in significant issues, many of which are related to protection of the Mexico. Úrsula Indacochea of DPLF discusses the intense human rights of Mayan indigenous communities. involvement of political bodies in the selection of senior justice system authorities in Mexico, noting the lack of effective checks and balances. Óscar Arredondo describes the new National Anti-Corruption System, the challenges that have arisen since the constitutional reform of 2015, and the steps that remain to be taken for its proper implementation. Aroa de la Fuente addresses the issue of energy reform in Mexico and describes Katya Salazar the current situation, three years after its enactment. Executive Director The vulnerable situation of certain sectors of the population in Mexico is examined in the fourth section of the journal. Leopoldo Maldonado of ARTICLE 19 presents the reality faced by Mexican journalists and shows that the war on drug trafficking has affected the exercise of freedom of expression in different ways. Ana Lorena Delgadillo of the Foundation for Justice and Rule of Law addresses the situation experienced by the relatives of disappeared migrants and explains how these families’ organizations have promoted the creation of a transnational mechanism that would allow them to access justice. Editor-in-chief Katya Salazar Coordination Montserrat Peniche Spanish language copy editor Tatiana Rincón English language copy editor Cathy Sunshine Translation to English Aimee Sullivan Design Miki Fernández

In this issue:

Serious violations of human rights Institutional Reforms P. 5 Recommendations for improving the Mexican P. 34 The power of the president to appoint senior justice criminal investigation system in light of the authorities in Mexico Ayotzinapa case Úrsula Indacochea Claudia Paz y Paz P. 39 Reflections on Mexico’s national anti-corruption P. 11 Essential elements of a public agenda for the system prevention and eradication of disappearances in Óscar Arredondo Mexico P. 42 Energy reform in Mexico: Human rights setbacks Ariel Dulitzky Aroa de la Fuente P. 15 Torture in Mexico: Observations of the former UN special rapporteur on torture and other cruel, inhuman or degrading treatment or punishment Juan Méndez P. 19 Undeniable atrocities: Confronting crimes against Highly vulnerable Groups humanity in Mexico Eric Witte P. 44 Types of violence against the press in Mexico: payoffs, bullets, and criminalization Leopoldo Maldonado P. 48 Progress and challenges in access to justice for migrant populations Reform of the criminal justice system Ana Lorena Delgadillo P. 24 Defendants’ rights versus victims’ rights: A false dichotomy Miguel Sarre P. 27 Notes on implementation of the accusatory criminal From the states justice system in Mexico and challenges to its P. 52 Public opinion rules, but does not [should not] consolidation govern Iván de la Garza Consuelo Morales y Ana Claudia Martínez P. 30 Penalties, pretrial detention, and precautionary P. 55 The Chihuahua Citizens’ Alliance measures in criminal procedure: The urgency of a Lucha Castro new constitutional reform in Mexico Carlos Ríos P. 56 Model for the participation of relatives of disappeared persons in actions of the government of Coahuila, Mexico Michael Chamberlin P. 57 Torture in Jalisco: Perpetual impunity César Pérez P. 58 Yucatán is more than Cancún David Lovatón

Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION 20 Anniversary 1997-2017

Serious violations of human rights

Number 21, Year 9, January 2017 3 Ayot zinapa

Number 21, Year 9, January 2017 Recommendations for improving the Mexican criminal investigation system in light of the Ayotzinapa case

Claudia Paz y Paz Former Attorney General of Guatemala and member of the GIEI

Ayot zinapahis article presents some of 2014, in Iguala, Guerrero, Mexico. reports, one in September 2015 and the principal findings of the In November 2014, the IACHR, the the other in April 2016. The second investigation conducted by the Mexican State, and representatives of report included a chapter detailing our TInterdisciplinary Group of Independent the victims signed a technical assistance findings on the workings of the criminal Experts (GIEI) on behalf of the Inter- agreement that established the GIEI’s investigation system and victim American Commission on Human mandate to assist in the investigation services in Mexico, and on the various Rights (IACHR) in the case of the 43 conducted by the Office of the Attorney shortcomings that made it difficult to students who disappeared in Iguala, General of the Republic (PGR), provide fully establish the facts of what occurred state of Guerrero, better known as the support in the search for the disappeared on September 26 and 27 and identify all Ayotzinapa case. It is public knowledge youths, examine the Comprehensive of the perpetrators. These problems are that the main shortcomings that the Victim Services Plan, and make general common in the investigation of human GIEI identified in its investigation of recommendations on the issue of forced rights violations in Mexico. this case are a constant in criminal disappearance in Mexico. We outline below some of the investigations in Mexico. Its findings The GIEI was composed of five shortcomings that most deeply under- and recommendations therefore should experts: Carlos Martín Beristain, mine the possibilities for progressing serve as a roadmap for improving Alejandro Valencia Villa, Ángela María in the investigation to determine the the system for the pursuit and Buitrago, Francisco Cox, and Claudia ultimate fate of the 43 disappeared stu- administration of justice nationwide. Paz y Paz. Each of us worked for two dents, as well as the identity and roles of six-month terms. We presented two all of the perpetrators. Background The Interdisciplinary Group of The difficulty of accessing relevant information and Independent Experts was appointed by the potential loss of evidence increases with the the IACHR pursuant to Precautionary Measure 409/14, issued in connec- fragmentation of the investigations. The investigation tion with the forced disappearance of of the case of Ayotzinapa was split up into countless 43 students of the Isidro Burgos Rural preliminary investigations... Teachers’ College on September 26,

Number 21, Year 9, January 2017 5 Recommendations for improving the Mexican criminal investigation system in light of the Ayotzinapa case

crucial that experts be independent and It is foreseeable that, if the perpetrators of obstruction, not subordinate to any of the parties. torture, or negligence leading to the loss of evidence The GIEI found that the experts ori- ented the conclusions of some of their are not punished, the investigations will continue to be reports toward supporting the official conducted with all of the aforementioned weaknesses version, rather than offering an inde- pendent analysis based solely on the evidence. At the same time, the foren- Confession as a principal but also the investigation of the truth sic reports failed to properly assess the form of evidence and an was hindered by an official version that serious indications of torture that were incentive for torture is contradicted by scientific evidence documented. The theory of the case presented by the and is based on the confessions of in- Because of this, it is critical that the PGR contains weaknesses and contra- dividuals who showed serious signs of forensic services be separate from the dictions. According to its version, the having been tortured. Office of the Attorney General of the 43 students were reportedly taken to the The use of a confession as a sole Republic and be able to function as an Cocula dump, where they were mur- means of proof is not a problem exclu- autonomous institution. The framework dered and their remains incinerated sive to this investigation into the forced for the enactment of the new Ministerio and then thrown into a nearby stream. disappearance of the 43 students. As Público3 Law will be the ideal scenario This account relies exclusively on the numerous reports have documented, for discussing what mechanisms can be statements of five alleged members of it is a recurring problem in the inves- put in place to ensure this institution’s Guerreros Unidos, an organized crime tigation of organized crime in Mexico, autonomy. cartel operating in the state of Guerrero, encouraged in part by national case law. who incriminated themselves and their Several court judgments have held that Excessive formalism in associates. According to the official in cases of organized crime, the confes- criminal investigations medical reports, these five individuals sion of the defendant constitutes com- and the lack of contextual showed strong indications of having plete circumstantial evidence; in other analysis: Not seeing the forest for the trees been tortured between the time of their words, it is intermediate evidence that detention and the time at which they acquires full evidentiary value when The inadequacy of the investigation is gave their statements to the PGR, while coupled with other evidence, however obscured by formalism. The written they were in the custody of the Office of minimal. The other evidence normally recording of irrelevant details and the the Deputy Attorney General for Special consists of confessions from codefen- repetition of information in documents Investigation into Organized Crime dants, in cases where two or more peo- pertaining to the the requests, the (SEIDO). ple are under investigation; in order reports, the receipts, and the ratifications The PGR’s version contradicts the for there to be sufficient evidence, it is produce enormous case files in conclusions of a fire expert, Dr. José enough for them to acknowledge their which the substantive information Torero1, and of the Argentine Forensic participation in the conduct and point is buried. The difficulty of accessing Anthropology Team (EAAF)2: they to the participation of their alleged relevant information and the potential maintain that there is no physical evi- co-perpetrators. loss of evidence increases with the dence to support the assertion that the In the GIEI’s second report, we fragmentation of the investigations. The events took place as described by the underscored how relying on the con- investigation of the case of Ayotzinapa alleged perpetrators. On the contrary, fessions of defendants not only leads to was split up into countless preliminary the remains found in the Cocula trash erroneous lines of investigation but also investigations.4 The arrests were carried dump indicate that there had not been a encourages the practice of torture. out for crimes discovered at the time of fire, of the magnitude required to burn their commission, which led to isolated 43 bodies, at that location in the night Lack of independence on the investigations, and it was the Ministerio and early morning hours of September part of experts Público that determined in which case 26–27, 2014. A solid investigation of a case as com- file to record the evidence. Given that These findings exposed extremely plex as this one, or any case of serious murder is not one of the crimes included serious flaws. Not only was there no human rights violations, requires the in the Federal Organized Crime Law, progress toward establishing the facts, use of scientific evidence. It is therefore the six executions that took place on

6 Number 21, Year 9, January 2017 Claudia Paz y Paz

the night of the events remained under investigation into the forced disappear- lack of internal mechanisms to investi- state jurisdiction, with the illogical result ance of the 43 students, as well as other gate the obstruction of justice, in both that the investigation of the criminal investigations of serious human rights vi- the Ayotzinapa case and other cases of acts was conducted in isolation from the olations, since there is no clear message serious human rights violations, or with investigation of the criminal network in within the PGR that this conduct will not respect to the practice of torture, this which the perpetrators were involved. be tolerated. transfer will mean that those public ser- Formalism also conceals the decon- vants responsible for such serious crimes textualization of the investigations. In the The future of the criminal will continue to be in charge of the in- Ayotzinapa case, one theory to be inves- investigations system in vestigations. It is foreseeable that, if the tigated is the transportation of heroin on Mexico perpetrators of obstruction, torture, or buses as a possible motive for the attack. The transition to the accusatory model, negligence leading to the loss of evidence The way in which Guerreros Unidos op- which entered into force throughout the are not punished, the investigations will erates, its co-optation of public servants, country on June 18, 2016, is an opportu- continue to be conducted with all of the and the routes along which the drugs and nity to overcome these weaknesses, es- aforementioned weaknesses, even with money circulated were all completely dis- pecially by cutting red tape in criminal the creation of the new institution. regarded in the investigation. This omis- investigations. However, in cases involving sion hindered an understanding of the organized crime, the Mexican Constitution Conclusion real import and magnitude of the case. still allows for arraigo (a restraining order For all of these reasons, it is imperative The events were described as the actions prohibiting a suspect or defendant from that the mothers and fathers of the 43 of crazed members of Guerreros Unidos leaving the jurisdiction of the court) to be students be informed of the outcome of and a few corrupt police officers, without imposed for up to 80 days against persons the investigations into the obstruction of acknowledging the relationship of orga- under investigation. This measure creates justice and the injuries consistent with nized crime to all the levels of authority a scenario that hinders judicial oversight torture that several of the detainees pre- present that night—members of the mili- over detention, since individuals are de- sented. This is essential to allow the in- tary, state, federal, and ministerial police tained for investigation rather than in- vestigation into the forced disappearance officers, and municipal police officers vestigated for possible detention, which of the 43 students to move forward. It is from three different towns—which the facilitates the practice of torture when de- the only way to guarantee that these acts GIEI recommended investigating. tainees remain in the custody of the PGR. are not repeated in future investigations The GIEI documented and informed This means that the new system enters into and that the justice system can fulfill the PGR of these shortcomings and other operation but leaves the door open for the its responsibility to punish the perpe- more serious ones, including the fact old practices to continue. trators and prevent new human rights that the former director of the Criminal Similarly, the amendments to Article violations.n Investigation Agency, Tomás Zerón, had 102 of the Constitution provide for taken one of the detainees to the scene of the transformation of the PGR into an NOTES the crime on the San Juan River, without Office of the Prosecutor General of the 1 his defense attorney and without any re- Fire expert, professor of civil engineering, and Republic, an entity that is expected to head of the School of Civil Engineering at the cord of these proceedings being made in be autonomous from the other branches University of Queensland, Australia. the case file. Nevertheless, the PGR has of the State. Nevertheless, transitional 2 The EAAF is a nongovernmental, nonprofit scientific made no progress on the investigations Article 19 of the constitutional reform organization that applies forensic sciences—mainly forensic anthropology and archaeology—to the in- into the obstruction of justice or Zerón’s also provides that all of the resources vestigation of human rights violations in Argentina responsibility in the cases of torture, in of the current PGR, including human and worldwide. See the EAAF website at http://eaaf. spite of the fact that he recently resigned. resources, will be automatically trans- typepad.com/. 3 This situation affects the progress of the In Mexico, an institution within the Attorney ferred to the new institution. Given the General’s Office, that represents the society’s interest in the investigation of cases and the prosecution of crimes. The use of a confession as a sole means of proof is not 4 The preliminary investigation (averiguación previa) is the initial investigative stage in Mexican criminal a problem exclusive to this investigation into the forced procedure, carried out by the Ministerio Público. It consists of performing all necessary procedures to disappearance of the 43 students prove that all of the elements of the crime have been met, for purposes of deciding whether to proceed with the criminal action.

Number 21, Year 9, January 2017 7 Recommendations from the second report of the GIEI in the Ayotzinapa case

Pursuant to Precautionary Measure 409/14 and at the pearance. The GIEI was made up of Carlos Martín Beristain, request of its beneficiaries, the Inter-American Commission Ángela Buitrago, Francisco Cox Vial, Claudia Paz y Paz, and on Human Rights (IACHR) and the Mexican government Alejandro Valencia Villa. signed an agreement creating the Interdisciplinary Group of In its second and final report, the GIEI issued 22 recom- Independent Experts (GIEI). The GIEI’s objective was to pro- mendations to the Mexican State. The Miguel Agustín Pro vide international technical assistance in the investigation of Juárez Human Rights Center (Center Prodh), which represents the disappearance of 43 students of the Isidro Burgos Rural the victims in this case, grouped those recommendations into Teachers’ College in Ayotzinapa, Guerrero, as they traveled four categories: legal reforms, institutional design changes, through the area of Iguala. The agreement set forth four lines changes in practice, and other public policy measures. We are of action: devising plans to search for disappeared persons who grateful to the Center Prodh for allowing us to share this doc- may be alive; technical analysis of the avenues of investigation; ument, as it shows the progress made and the ongoing chal- technical analysis of assistance to victims and their relatives; lenges to improving criminal investigation procedures and the and recommendations for public policies on forced disap- justice system in Mexico.

LEGAL REFORMS minimum points to be included in the law, consistent with the GIEI’s proposal. 1 General Law to Prevent, Investigate, and Punish Forced Disappearance 2 General Law to Prevent and Punish Torture The GIEI requested the urgent enactment, with prior consulta- The GIEI made multiple recommendations to eradicate the use tion of victims, of a law on forced disappearance that would at of torture and cruel treatment. Many of them can be addressed a minimum: in the discussion currently underway on the General Law to i. Establish a National Registry of Disappeared Persons de- Prevent, Investigate, and Punish Torture. These recommenda- signed to facilitate searches and investigations, containing tions include: preexisting information and integrated into the National i. Guarantee the exclusion of unlawful evidence obtained un- Victim Assistance System der torture. In no case should a confession by itself be con- ii. Set up a National Commission on the Search for Disappeared sidered to constitute full proof; it must be checked against Persons that includes organizations and victims, proposes other types of evidence. public policies, and assists in the implementation of the ii. Provide medical guarantees during detention. Any person National Exhumation Plan. suspected of having been tortured must immediately under- iii. Clearly establish, by law, an immediate search process that go a medical and psychological exam for verification. The authorities can undertake on their own initiative. This pro- exam should be conducted by independent experts accor- cess should devise search hypotheses; ensure coordination ding to the highest standards. between federal and state authorities and the application of iii. Update forms used by the Office of the Attorney General of the the Minnesota Protocol; use specialized teams; facilitate the Republic (Procuraduría General de la República, PGR) and participation of outside experts and victims’ relatives, and state prosecutors’ offices for medical opinions on detainees. allow for access to any public entity. Status of Related Processes In April 2016, the Senate passed iv. Secure the cooperation of telecommunications carriers in the draft General Law to Prevent, Investigate, and Punish providing information. Torture and other Cruel, Inhuman or Degrading Treatment or v. Include benefits for effective cooperation Punishment, and sent it to the House of Representatives. vi. Regulate certificates of absence However, after three months of inactivity, in December 2016 vii. Establish the criminal responsibility of the superiors of State the Justice and Human Rights Committees of the House of agents involved in cases of forced disappearance. Representatives introduced several regressive amendments to Status of Related Processes In December 2015, the execu- the draft. Those amendments would obscure and hinder tor- tive branch introduced a bill in the Senate. The Movement for ture complaints and investigations. The coalition of organiza- Our Disappeared in Mexico provided inputs to both the exe- tions and academic institutions that have made contributions cutive and legislative branches. Nothing has passed as of this throughout the process, as well as the Office of the United writing. Civil society organizations and associations of relati- Nations High Commissioner for Human Rights in Mexico, ves of disappeared persons drafted a proposal containing eight have called upon the House to remove those amendments.

8 Number 21, Year 9, January 2017 Recommendations from the second report of the GIEI in the Ayotzinapa case

INSTITUTIONAL DESIGN CHANGES That body would be financially and administratively autono- mous and would not report to any investigative or judicial in- 3 Institutional redesign of the prosecutors’ stitution. Its staff members would have technical, scientific, and offices professional capacities and would be appointed on the basis of career professional service and supervised by academic author- The GIEI documented multiple dysfunctional aspects attrib- ities. The body’s work would be guided by protocols that meet utable to the design of the prosecutors’ offices. Many of these the highest standards. flaws may be addressed in the discussions on the transition to the Office of the Prosecutor General of the Republic (Fiscalía Status of Related Processes There is a constitutional reform General de la República, FGR). bill in the Senate that calls for expert witness services to be re- There should be a specialized human rights unit with sufficient moved from the purview of the prosecutors’ offices. human, technical, and financial resources. This unit should The issue was addressed in the discussion of secondary laws, streamline the work of the agencies that currently deal with but Mexican legal tradition may first require a constitutional these issues. amendment. The issue will be raised in the debate on the This Assistant Prosecutor’s Office for Human Rights should Organic Law of the Office of the Public Prosecutor. include context analysis units that study patterns arising from the analysis of regional dynamics, communications networks, financial aspects, areas of influence, and internal structures CHANGES IN PRACTICE of criminal groups as well as government authorities, from 6 Registration of detainees as a safeguard a macro-criminality perspective. The staff should have the against torture and forced disappearance necessary conditions to investigate masterminds as well as direct perpetrators, including the chain of command and Because the GIEI documented the fact that a chain of custody potential responsibility of superiors. of persons is a safeguard against forced disappearance, while its absence is conducive to torture, it recommended the creation Status of Related Processes The Constitution was amended of a National Registry of Detainees. The documentation of all in October 2014 to create the Office of the Prosecutor General, deprivations of liberty in registries and/or case files is a preven- but the content and design of this office is not currently being tive measure against the disappearance of persons. discussed. Although the House of Representatives passed a bill Status of Related Processes In its judgment in the case of and forwarded it to the Senate, the measure has not been taken Cabrera García and Montiel Flores, the Inter-American Court up again. of Human Rights ordered Mexico to strengthen its record- The draft bill does not include the creation of an Assistant keeping on detainees. Prosecutor’s Office for Human Rights. This implies a step The procedural rules require the registration of a person’s deten- backward from the agency role that is currently filled, at least tion but do not allow for the identification of the specific public on paper, by the Office of the Deputy Attorney General for servant responsible for the detainee at any given time. Detentions Human Rights, Crime Prevention, and Community Service. are only recorded at the federal level and in a few states. 4 Specialized human rights courts For the security agencies, transparency and information take priority over the guarantee of individual rights. The current Given the complexity and social significance of crimes involving registry documents the delivery of the detainee to the custody human rights violations, the GIEI suggested the creation of of the Ministerio Público but does not create a record at the time courts with exclusive jurisdiction over those crimes, both in the of arrest, when the detainee faces the greatest risk of torture. federal judiciary and at the state level. 7 Application of the Minnesota Protocol Status of Related Processes There is no public discussion in in exhumations and investigations of Mexico on this issue, nor has any bill been drafted, although possible extrajudicial executions there is one for broadcasting, economic competition, and telecommunications. The GIEI noted the importance of implementing the standards of the Minnesota Protocol, at least when conducting exhuma- 5 Autonomous expert witness services tions and investigating possible arbitrary executions. The GIEI proposed the creation of an autonomous expert and Extrajudicial executions are one outcome of forced disappear- forensic body with state and federal jurisdiction, which would ances. It is therefore essential to adopt the Protocol as a guide entail an institutional redesign. for their investigation and for inquiries that are opened when

Number 21, Year 9, January 2017 9 Impunity and grave human rights violations in Mexico

victims’ remains are discovered. The protection of the scene, Status of Related Processes No proposal has been submitted the proper safeguarding and documentation of the evidence— for public debate in this regard, either by the government or especially in the processing of grave sites—and the training of by the political parties. To the contrary, there are currently personnel who conduct exhumations and autopsies all must be a number of legislative initiatives designed to “legalize” the guaranteed. (unconstitutional) participation of the armed forces in public security tasks under the guise of “domestic security.” Given that Status of Related Processes There are currently no legal in- such legislation would be a step backward for the full enjoyment struments or practices that require full implementation of the of human rights, civil society organizations have called for any standards of the Minnesota Protocol in criminal investigations legislative proposal to provide for the gradual withdrawal of the into possible extrajudicial executions or investigations opened armed forces from public security tasks. when human remains are found. 10 Enhanced international cooperation OTHER PUBLIC POLICY MEASURES Based on its experience and the multiple obstacles it faced, the 8 State policy on the right to truth GIEI recommended that Mexico assume a cooperative attitude toward international assistance. The GIEI insists that Mexico has failed to properly acknowledge With respect to the universal system of human rights, the the extent of the crisis. Therefore, it proposes the adoption GIEI urges Mexico to recognize the jurisdiction of the United of a State policy to guarantee the right to truth, starting with Nations Committee on Enforced Disappearances to receive and official recognition of the situation and of the magnitude of examine individual communications. the disappearances, helping to pinpoint specific time periods Regarding the Inter-American system, Mexico should resolutely (such as the Dirty War), patterns, etc. It also recommends the support the IACHR and the Inter-American Court in view of promotion of historical memory projects with the participation their financial crisis, preventing any retaliation for the positions of victims’ families. the IACHR and the GIEI have taken. Status of Related Processes A number of bills have been It is crucial to support the Special Follow-Up Mechanism to the proposed for the preservation of memory with regard to human GIEI’s recommendations in the Ayotzinapa case, strengthening rights violations, but it cannot be said that there is a State policy cooperation and steering clear of a nationalist approach. on the right to truth. Status of Related Processes According to the GIEI’s re- 9 Program for the gradual withdrawal of ports and findings, the State has been reluctant to cooperate the armed forces from public security with international bodies and at times has openly rejected functions them. Mexico has yet to fully recognize the jurisdiction of the Having verified the Army’s knowledge of the macro-criminality Committee on Enforced Disappearances. in Iguala, and affirming the lack of accountability and civilian With regard to the Inter-American system, Mexico launched oversight over the armed forces, the GIEI cites the importance a vigorous offensive against the IACHR following the second of a program for the gradual withdrawal of the armed forces report of the GIEI. from security functions. This would include: In September 2016, the IACHR announced the creation of a Special Follow-up Mechanism in the Ayotzinapa case. In early i. Professionalizing the police force to be a civilian and demo- 2017, the mechanism conducted a technical visit to Mexico. cratic body with specialized career employees. The families and their representatives hope that the Special ii. Regulating the use of force in accordance with international Follow-up Mechanism will enjoy the necessary conditions for standards. its work and not face a campaign of defamation and obstruc- iii. Establishing mechanisms for civilian oversight and monito- tion as the GIEI did. ring of the functions of civilian and military forces.

10 Number 21, Year 9, January 2017 Essential elements of a public agenda for the prevention and eradication of disappearancesin Mexico Ariel Dulitzky Member of the United Nations Working Group on Enforced or Involuntary Disappearances

or nearly 10 years, international human rights organizations have urged Mexico to address the ex- Ftremely serious situation of disappear- ances. The United Nations (UN) Working Group on Enforced or Involuntary Disappearances visited the country in 2011 and later published its mission report1 as well as its follow-up report.2 These were followed by the concluding observations of the UN Committee on Enforced Disappearances,3 the report of the Inter-American Commission on Human Rights (IACHR) on its on-site visit,4 and the reports and recommen- dations of the Interdisciplinary Group of Independent Experts (GIEI) of the IACHR.5 The Inter-American Court of Human Rights had previously handed down important judgments, such as Radilla Pacheco,6 on disappearances in the context of the Dirty War, and Cotton comprehensive, coherent, effective, and problem, as the Working Group recom- Field,7 on disappearances perpetrated by efficient public policy that can serve to mended. There is no national diagnostic private parties in the context of the vio- prevent and eradicate forced disappear- assessment of the problem of forced dis- lence against women in Ciudad Juarez. ance in Mexico. appearance of persons that would allow Organizations like Human Rights for the development of comprehensive Watch,8 Amnesty International,9 and 1 As a first step, the authorities, in- and effective measures for its prevention, the Open Society Justice Initiative10 cluding the most senior officials, need to eradication, investigation, punishment, have also documented the situation of acknowledge the seriousness, complex- and reparation. The information from forced disappearances. As a result, we ity, and scale of the problem. Although different State institutions in relation to are not in need of additional diagnostic some authorities have voiced tentative cases of forced disappearance is gath- assessments: all the reports agree that recognition of the reality of forced dis- ered unsystematically, and frequently in there is a widespread practice of disap- appearance, such statements have not a contradictory manner. The dispersal of pearances in several parts of the coun- been consistent, uniform, and homog- this information does little to help evi- try, many of which can be classified as enous among all Mexican State author- dence the real scale of the phenomenon. forced disappearances. ities, nor have they been issued at the While it is true that a considerable num- In the paragraphs below, we put highest level. There has also been a fail- ber of kidnappings and crimes similar to forward 20 essential elements for a ure to acknowledge the magnitude of the forced disappearance are committed by

Number 21, Year 9, January 2017 11 Essential elements of a public agenda for the prevention and eradication of dissapearances in Mexico

organized crime groups, not every dis- appeared person has been kidnapped by an organized crime group acting inde- Both the law and judicial practice should advance pendently; on the contrary, the participa- in establishing the criminal responsibility of tion of the State in forced disappearances is also a reality in the country. In addi- hierarchical superiors tion, due to the prevailing impunity, many cases that could be classified as crimes of forced disappearance are re- ported and investigated under a differ- suit of justice need to be eliminated, in- incapacity and unwillingness to investi- ent category or are not even considered cluding the prioritizing of excessive legal gate at the local level. Nevertheless, this to be crimes. Often, in popular parlance, formalism over the search for truth; the does not mean that switching to fed- cases of forced disappearance are euphe- predominance of investigations based eral jurisdiction in and of itself guaran- mistically called levantones, meaning the exclusively on confessions, many ob- tees the success of an investigation; the abduction of the friends/family of a rival tained under torture, or on evidence pro- Ayotzinapa case is a sad testimony to with the express purpose of torturing vided by relatives; the frequent attempts that fact. and murdering them, not for ransom. by authorities, especially Prosecutors’ 5 Many times forced disappearances are Offices, to discredit disappeared persons Given the characteristics of the phe- considered to be simple kidnappings or by asserting that they were involved in nomenon and the current constitutional abuse of authority, or the individuals are criminal groups, without any evidence framework, the public policy must ac- simply considered to be lost, missing, or investigation of this claim; and the knowledge forced disappearance in its or not found (particularly when they authorities’ refusal to receive reports of different forms, as well as other types are members of groups such as women, disappearances or their insistence on re- of disappearances that do not qualify as children, or migrants), without a proper cording them as petty crimes. forced disappearance under international investigation to rule out the possibility human rights law, such as those commit- 3 of forced disappearance. The public policy must take shape ted exclusively by private parties with- through the indispensable, unavoidable, out the tolerance or cooperation of State 2 A change in the political and cul- and urgent enactment of a general law on agents. The public policy should recog- tural attitude of the security forces and forced disappearances. In recent years, nize the particularities, autonomy, seri- justice system officials is needed in order different bills have been introduced be- ousness, and complexity of the crime and to guarantee the rights to the truth, jus- fore Congress, but none has passed. The phenomenon of forced disappearance, tice, reparation, memory, and guarantees most recent, sponsored by President properly defining it in the law. It cannot of nonrepetition, and to make possible Enrique Peña Nieto in December 2015, allow the responsibility of the State to be the prevention and eradication of forced was criticized by organizations and ex- diluted when the disappearance is com- disappearances. In particular, the mili- perts for failing to adhere to the relevant mitted directly or indirectly by a public tary paradigm of citizen security must international standards. servant. be changed, the withdrawal of military forces from public safety operations must 4 Harmonization and coordination 6 The public policy must make it be considered, and criminal law must be is needed among the different levels of a priority to immediately break the applied as a way to prevent forced disap- government, recognizing the country’s systematic pattern of impunity that pearances. In addition, a new legal cul- federal structure. Federal public policy currently prevails. The investigation, ture is needed to ensure the success of the should establish the co-responsibility prosecution, and punishment of cases accusatory system and break the system- and accountability of all levels, with of disappearance should also be made a atic pattern of impunity in cases involv- leadership and coordination under the political priority. The investigation must ing disappearances. The prevailing legal responsibility of the federal government. be opened and pursued at the initiative and judicial culture gives rise to fear and In particular, the federal State must have of government authorities, and with due frustration that discourages victims from the power to act in the event that local diligence; it should not be necessary for reporting or pressing for the investiga- authorities are unable or unwilling to victims’ relatives to push for this. The tion of forced disappearances. Defects do so. The case of the 43 students from investigation should be conducted by in- prevalent in the administration and pur- Ayotzinapa is a prime example of the dependent and impartial bodies, recog-

12 Number 21, Year 9, January 2017 Ariel Dulitzky

nizing the systemic way in which forced disappearances occur, rather than treat- The information from different State institutions in ing them as isolated incidents. Both the law and judicial practice should advance relation to cases of forced disappearance is gathered in establishing the criminal responsibility unsystematically, and frequently in of hierarchical superiors and in develop- a contradictory manner ing the capacity to investigate, prosecute, and punish both direct perpetrators and masterminds, with benefits for effective 8 must pay attention to the needs of victims cooperation. The public policy must en- The public policy should establish a sure that the investigations are conducted national search plan and a national map of forced disappearance living in poverty. by persons who have the capacity to in- of gravesites. It should ensure capacity 12 The particular situation of human vestigate and analyze patterns of conduct for the exhumation and identification of rights defenders and journalists should and modus operandi, regional dynam- human remains. These should be turned be addressed—not only as victims of ics, communications networks, finan- over to relatives with dignity and sup- cial aspects, and areas of influence and port, and with a certificate of absence by forced disappearances but also in view operation—both of the criminal groups reason of disappearance. of the threats, harassment, and attacks to which they are subjected because of and of the authorities. Once again, the 9 An essential principle that should their work on matters involving forced multiplicity of grave sites found during guide every action and measure is respect the investigation of the 43 students from for the dignity of all victims of forced dis- disappearances. Ayotzinapa demonstrates that disappear- appearance, that is, of the disappeared 13 As a way to prevent disappear- ances do not occur in isolation; rather, persons and their relatives, and all those ances, arrest records should be kept they are the result of systematic plans in- who suffered harm as a consequence of more rigorously. The possibility of a volving the use of forced disappearance the disappearance. in a context of chronic impunity. National Registry of Detainees should 10 Relatives and relatives’ associations be considered, and efforts to combat the 7 The search for a disappeared person must receive the necessary backing to un- practice of arbitrary detention should must be launched immediately, on the dertake their efforts. In particular, fam- State’s own initiative, ensuring coopera- be strengthened. Arraigo—a restraining ilies’ participation in the investigations order prohibiting a subject or defendant tion between the federal government and must be ensured, but without placing from leaving the jurisdiction of the court the states. In particular, the search must the burden of the investigation on them. while a criminal investigation is in pro- be conducted from a humanitarian per- They must be informed of the investi- spective rather than as a strictly judicial gation’s progress and should be afforded cess—should be eliminated both from matter—that is, not through judges, pros- adequate protection from any type of re- the law and from practice at all levels ecutors, and Special Prosecutors’ Offices taliation or risk to their safety. of government, and the broad concept within the framework of investigations of offenses detected in flagrante delicto 11 and eventually preliminary investigations The public policy should serve par- should be limited as a way to prevent and trials, where the main objective is to ticularly vulnerable sectors. It should be forced disappearances. determine the criminal responsibility of adopted and implemented with a gender the perpetrators before determining the perspective. It should also take account 14 To ensure implementation of the fate or whereabouts of the disappeared of the transnational aspects of the disap- public policy, steps should be taken to person. The search for the disappeared pearance of migrants. It must be guided ensure the necessary budget, firm polit- person (the humanitarian aspect) must by the best interests of the child, given ical support, professionally trained and be conducted parallel to and in coordina- highly qualified personnel, autonomous tion with the investigation of the criminal the high number of disappeared children offense (the judicial aspect). But neither and adolescents, as well as their status as forensic and expert witness services, and should be subordinate to the other, or to victims when their family members dis- the most advanced technical resources, its outcomes. A National Commission appear. The policy should be culturally with mechanisms for citizen participa- on the Search for Disappeared Persons sensitive in cases involving the forced dis- tion as well as independent and impartial should be created for this purpose. appearance of indigenous persons, and it monitoring and evaluation processes.

Number 21, Year 9, January 2017 13 Essential elements of a public agenda for the prevention and eradication of dissapearances in Mexico

15 The policy must cover disappear- ances from all different time periods, Mexico knows more about how many gallons of including those perpetrated during the petroleum it exports every day than it does about how Dirty War. many people have disappeared in the country. This puts 16 It must acknowledge the binding the priorities of the Mexican State into perspective force of the recommendations and mea- sures of reparation adopted by the inter- national human rights bodies of the UN Commission is minimal in relation Disappearances, Addendum: Mission to Mexico, December 20, 2011, A/HRC/19/58/Add.2. and the Organization of American States, to the number of disappearances that 2 guarantee compliance with those recom- the registry of disappearances itself UN Human Rights Council, Report of the Working Group on Enforced or Involuntary mendations and measures, and follow up contains. The vast majority of victims of Disappearances, Addendum: Follow-up Report on them in good faith. disappearance have still not received to the Recommendations Made by the Working appropriate reparation or comprehensive Group: Missions to Mexico and Timor-Leste, 17 The competence of the UN Commi- medical, legal, and psychological services. September 11, 2015, A/HRC/30/38/Add.4. ttee on Enforced Disappearances to 3 UN Committee on Enforced Disappearances, receive and examine individual and inter- 20 Guaranteeing access to records, in Concluding Observations on the Report Submitted by Mexico under Article 29, Paragraph state communications must be accepted. particular those of law enforcement 1, of the Convention, https://documents-dds-ny. and the armed forces, is essential. All un.org/doc/UNDOC/GEN/G15/043/63/PDF/ 18 A specific registry of forced disap- names of persons responsible for disap- G1504363.pdf?OpenElement pearances should be created. Currently, pearances documented by the National 4 IACHR, The Human Rights Situation in Mexico, there is a National Data Registry on Human Rights Commission (CNDH) in OEA/Ser.L/V/II.Doc. 44/15, December 31, 2015. Disappeared or Missing Persons, but it its recommendation on the Dirty War 5 Interdisciplinary Group of Independent does not make specific reference to po- should be published immediately. The Experts, Ayotzinapa Report: Research and tential forced disappearances. Such a Initial Conclusions of the Disappearances and final report of the Office of the Special Homicides of the Normalistas from Ayotzinapa registry should also contain detailed, Prosecutor for Social and Political (September 6, 2015), http://media.wix.com/ disaggregated information that provides Movements of the Past (FEMOSPP) ugd/3a9f6f_e1df5a84680a4a8a969bd45453da 1e31.pdf, and Ayotzinapa Report II: Forward a basis for analysis of patterns, actors, should be officially published, without and perpetrators. Unfortunately, Mexico Steps and New Conclusions on the Investigation, any changes, and the documents com- Search and Care for Victims (April 24, 2016), knows more about how many gallons piled should be made accessible. http://media.wix.com/ugd/3a9f6f_cba336a52f1a of petroleum it exports every day than When this comprehensive pub- 4298b3fa1e6fa16526b2.pdf. it does about how many people have lic policy is discussed, let us recall the 6 I/A Court H.R., Case of Radilla Pacheco v. Mexico, Preliminary Objections, Merits, disappeared in the country. This puts words of Julio Cortázar from 1981: “At the priorities of the Mexican State into Reparations, and Costs, Judgment of November this time of study and reflection, meant 23, 2009, Series C, No. 209. perspective. The lack of reliable data di- to create more effective instruments in 7 lutes the responsibility of the State and I/A Court H.R., Case of González et al. (“Cotton defense of the rights and freedoms that Field”) v. Mexico, Preliminary Objection, Merits, of particular security forces, and it pre- have been trampled […], the invisible Reparations, and Costs, Judgment of November vents the development of comprehensive presence of thousands upon thousands 16, 2009, Series C, No. 205. policies of investigation, prevention, and of disappeared persons precedes, sur- 8 Human Rights Watch, Mexico’s Disappeared: punishment. The Enduring Cost of a Crisis Ignored (New passes, and continues all of the intel- York: HRW, 2013), https://www.hrw.org/ lectual work we may do […]. Here, 19 In order to guarantee appropriate report/2013/02/20/mexicos-disappeared/ […] where they are not, where they are enduring-cost-crisis-ignored. reparations, the functioning of the evoked as a reason for doing the work, 9 Executive Commission for Victim Amnesty International, “Treated with Indolence”: here we must feel that they are present The State’s Response to Disappearances in Mexico Assistance and the Victims’ Law should and near, sitting among us, looking at (London: AI, 2016), https://www.amnesty.org/ be reviewed. Unfortunately, the Victims’ en/documents/amr41/3150/2016/en/. us, talking to us.” n Law and the Executive Commission 10 Open Society Justice Initiative, Undeniable Atro- have not thus far provided an cities: Confronting Crimes against Humanity in adequate response to victims of forced NOTES Mexico (New York: Open Society Foundations, 2016), https://www.opensocietyfoundations.org/ disappearance. Indeed, the number of 1 UN Human Rights Council, Report of the sites/default/files/undenialble-atrocities-2nd- victims registered with the Executive Working Group on Enforced or Involuntary edition-20160808.pdf.

14 Number 21, Year 9, January 2017 Torture in Mexico Observations of the former UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment

Juan Méndez Former United Nations Special Rapporteur on Torture (2010–2016)

n my capacity as the United Nations nity for a more constructive debate may a pattern of near-absolute impunity, as Special Rapporteur on Torture have been lost. documented by both official and non- from 2010 to 2016, I had occasion At the end of my visit, when I governmental human rights protection Ito visit Mexico in April–May 2014. This presented my preliminary briefing bodies. In the heat of the controversy, I was the most intense of the 12 missions to the authorities, officials from the suggested that, even if my opinion re- I conducted during my time as rappor- Foreign Ministry tried to convince me garding the widespread nature of the teur, as well as the most successful in to change the wording of my report, torture was not shared, we could none- terms of obtaining information to make which characterized torture in Mexico theless accept that we had a divergence a precise diagnostic assessment of the as “widespread”. As should be evident, that need not keep us from discussing situation and formulate appropriate rec- an independent expert from the United ways to tackle the problem. Regrettably, ommendations for overcoming struc- Nations cannot allow anyone to instruct the dialogue with the authorities did tural problems. However, it was also the him on what he can or cannot say. When not go beyond this disagreement. most controversial of my missions. The Mexico invited me to visit the country, As I have done with other countries report was made public in March 2015, it did so in order for me to give my most visited during my term, I asked Mexico and its presentation to the UN Human honest and dispassionate assessment of in late 2015 to invite me to conduct a Rights Council in Geneva led to a num- the reality of torture—not for me to tell follow-up visit to examine the status of ber of personal attacks against me by them what is most convenient to inter- compliance with my recommendations; various officials. There were also some nal relations among the different sectors I hoped that we might try again to en- local commentators who were more in- of the State. Additionally, as I managed gage in constructive dialogue. In early terested in condemning the bearer of to explain exhaustively, my conclusion 2016, the Permanent Mission of Mexico bad news than in discussing the content was based on countless interviews with to the United Nations Office in Geneva of the report. detainees and survivors who were later informed me that such a visit could not Unfortunately, the noise surround- released, all of whom confirmed that be made that year. Because my term ing my report has prevented the ratio- in the first few days after arrest they ended on October 31, 2016, the deci- nal discussion of my recommendations, were subjected to beatings, suffocation, sion necessarily meant that I would not which at the time were considered electrical shocks, and various forms of be the one to carry out the follow-up useful and positive by some Mexican psychological torture. These interroga- visit. government spokespersons. It is also tion methods were repeated, whether Nonetheless, I have been to Mexico important to underscore the fact that the arresting authorities were munici- twice on academic visits since the re- civil society and the independent press pal, state, or federal police, state pros- lease of my report, and I have taken the in Mexico gave me ample opportunity ecutors’ offices, investigators from the opportunity to speak with authorities to defend my integrity and explain my Office of the Attorney General of the in the legislative and judicial branches conclusions. Because of this, I believe Republic (PGR), or members of the and with human rights officials at the that on balance my visit and my report armed forces. And in every case, this Ministerio Público. Because of this, I were positive, although the opportu- routine of torture was associated with have remained abreast of regulatory

Number 21, Year 9, January 2017 15 Torture in Mexico

developments such as the new General Council, and may be discussed at the tors like the Interdisciplinary Group of Criminal Enforcement Law and the March 2017 session. Independent Experts that investigated draft General Law against Torture, Unfortunately, none of what has the events at Ayotzinapa, rather than which passed in the Senate but has in- taken place over the 30 months since take their conclusions and recommen- explicably stalled in the lower chamber. my official visit allows me to change dations seriously. I have also closely followed develop- my assessment that torture in Mexico Mexico has the appropriate institu- ments in the most notorious cases of is widespread. The most recent data tional, human, and material resources forced disappearance, torture, and ex- confirm that physical and psychologi- to combat the threat of organized crime trajudicial execution, like that of the cal coercion is the normal interrogation students from the teacher training col- method in Mexican criminal investiga- while respecting the rule of law and the lege in Ayotzinapa. tions—especially in the case of orga- dignity of all human beings. What is As is the practice for the Special nized crime suspects—and that all of the lacking, however, is a hefty dose of po- Procedures of the United Nations, my agencies involved in domestic security litical will to confront sectors within the team and I have continued to investi- use it regularly. There are also no signs State that prefer the status quo of impu- gate the situation in Mexico since 2014 of progress toward breaking the prevail- nity for crimes of the State. Those same and have submitted a follow-up report ing impunity that surrounds repressive sectors choose to use torture, forced to the government for its consideration, actions. In the two and a half years since disappearance, and extrajudicial execu- albeit without the benefit of a second my official visit, Mexicans have seen tion as tools to fight organized crime. visit. At the time of writing this article, harrowing images of torture methods This only widens the distance between that report is still confidential, as the and have heard remarks from senior of- the repressive forces and the society Mexican government has been given ficials condemning those practices, but time to reply before my successor sub- they have not seen concrete actions to they are supposed to serve, deepens the mits it to the Human Rights Council. investigate, prosecute, and punish the public’s mistrust of government insti- It will be made public in February perpetrators. They have also seen that tutions, and hinders the urgent task of 2017, as part of the annual report of the authorities prefer to grudgingly tackling corruption and the infiltration the Rapporteurship on Torture to the cooperate with international moni- of criminality into sectors of the State.n

Mexico before the Human Rights Council Follow-up report of the United Nations special rapporteur on torture and other cruel, inhuman, or degrading treatment or punishment

n March 2, 2017, the new United Nations Special Rap- Degrading Treatment or Punishment. In addition, he suggests porteur on torture and other cruel, inhuman, or degrad- that the concept of arraigo (a restraining order prohibiting a Oing treatment or punishment, Nils Melzer, presented subject or defendant from leaving the jurisdiction of the court to the UN Human Rights Council the follow-up report on the while a criminal investigation is in process) should be elimi- recommendations made to the Mexican State after the visit of nated from Mexican law. The follow-up report states that two the previous special rapporteur, Juan Méndez, to Mexico from years after the former rapporteur’s visit to Mexico, torture and April 21 to May 2, 2014. abuse continue to be widespread. It concludes by urging the In this new report, the special rapporteur calls upon Mexican State to comply with the recommendations made in the Mexican State to enact the General Law to Prevent, the mission report. Investigate, and Punish Torture and Other Cruel, Inhuman, or

16 Number 21, Year 9, January 2017 Impunity and grave human rights violations in Mexico

Civil society forum with finalists for the position of Executive Secretary of the Inter-American Commission on Human Rights

From left to right: Katya Salazar (DPLF) and Francisco Quintana (CEJIL), event moderators; Elizabeth Abi-Mershed, Michael Reed, Paulo Abrão, and Renzo Pomi (screen), finalists to the post of Executive Secretary of the IACHR.

n recent years, civil society has been advocating greater trans- mined questions, for which they had time to prepare; and finally, they parency within the bodies of the Inter-American Human Rights were given the opportunity to respond to questions that members ISystem. This has included efforts to achieve broader participation of civil society from around the region had submitted in advance via in the processes for selection of their members. Given the current the Internet. financial situation of the Inter-American system, and particularly that The selection of the IACHR Executive Secretary is a matter of of the Inter-American Commission on Human Rights (IACHR), the public interest for the population of the Americas. Accordingly, this election of the Commission’s new Executive Secretary last year rep- forum, which was broadcast live, was vitally important because it fos- resented a crucial moment for its future. tered greater transparency in the selection process and promoted With this in mind, on July 25, 2016, the day before the election, civil society participation and involvement. It allowed for closer in- the Open Society Justice Initiative (OSJI), DPLF, and CEJIL held teraction with the finalists in order to learn about their approaches, the first Civil Society Forum with Finalists for the Position of strategies, and proposals with respect to the operation, funding, and IACHR Executive Secretary. The event’s main objective was to future of the Commission. DPLF hopes that this event has laid the create a space that would enable civil society to have direct con- tact with the finalists selected for this position and to learn more foundation for a more active participation and inclusion of civil soci- about their backgrounds, their positions on the challenges facing ety in processes for the selection of members of the Inter-American the IACHR, and how they would perform in the position. human rights bodies. Four of the five finalists participated in the forum, which was On July 26, 2016, at IACHR headquarters, the plenary in- moderated by Katya Salazar, Executive Director of DPLF, and terviewed the five finalists for the position. As a result of this pro- Francisco Quintana, Program Director at CEJIL. The conversation cess, Paulo Abrão, a Brazilian national, was selected as the new was held in three stages: first, each candidate made a brief pre- Executive Secretary of the IACHR. He will occupy this post for a sentation; next, the candidates responded to a number of predeter- four-year term, with the potential for renewal for an additional term.

Number 21, Year 9, January 2017 17 Undeniable atrocities: Confronting crimes against humanity in Mexico

Eric Witte Senior Project Manager for National Trials of Grave Crimes at the Open Society Justice Initiative

ccording to Mexico’s govern- after he took office in December 2006, to sake of the victims and for development ment, Ayotzinapa, Tlatlaya, San deploy the military on a large scale to fight of the rule of law, it would be better for Fernando, and other cases of drugs and organized crime. Mexico to make domestic justice work. Adisappearance, murder, and torture in Just what were the dimensions of the country over the past decade have murder, disappearance, and torture in Scale of crime and been isolated incidents. Criminal or- Mexico over the following decade, and accountability ganizations have been overwhelmingly who committed these crimes? In response, According to government statistics, there responsible for the crimes, the govern- how much criminal accountability has were over 150,000 intentional murders ment insists, and in the few cases where there been? Have the crimes been isolated in Mexico from the beginning of 2007 State actors have been responsible, they incidents, as the government claims, or through 2015. With the discovery of hun- have been prosecuted and punished. In are there patterns of criminality, so that dreds of clandestine graves across the an extraordinary joint statement by the they qualify as international crimes? And country over the past decade, containing Attorney General’s Office, the Interior finally—because it quickly became evident remains not reflected in the official sta- Ministry, the Army, and the Navy, the to researchers that there has been almost tistic, that number is surely low. There government restated these positions in no criminal accountability—what are the June 2016, responding to the launch of the causes of impunity? has been very little justice for all of this report Undeniable Atrocities: Confronting We concluded that there is a killing. Of all homicide investigations Crimes Against Humanity in Mexico.1 reasonable basis to believe that both opened between 2009 and 2015, prosecu- Undeniable Atrocities presents the Mexican federal forces and non-State tors issued indictments in only about 16 findings of over three years of research by actors have committed murder, enforced percent of cases. the Open Society Justice Initiative together disappearance, and torture as crimes Disappearances in Mexico have re- with five Mexican partner organizations: against humanity. And the main obstacles ceived extensive media attention, yet the the Mexican Commission for the Defense to justice are political, erected by State frequently cited government statistic of and Promotion of Human Rights, the institutions implicated in the perpetration around 26,000 disappeared is unreliable. Fray Juan de Larios Diocesan Center for of the crimes. To escape its crisis of atrocity It represents a partial accounting of per- Human Rights, I(dh)eas Human Rights and impunity, Mexico needs temporary sons missing for criminal and noncrim- Strategic Litigation, Foundation for Justice international involvement in its criminal inal reasons, according to arbitrary and and Rule of Law, and Citizens in Support justice system while domestic reforms nontransparent criteria. The reality is that of Human Rights (CADHAC). Together, are enacted that enhance the autonomy nobody knows how many people have dis- we sought answers to big questions about and credibility of its justice institutions. appeared in Mexico, but there is reason to crime and impunity in Mexico. These The nature of the crimes means that the believe that the actual figure is significantly increased sharply following the decision of International Criminal Court (ICC) could higher. A number of well-documented former President Felipe Calderón, shortly possibly assert jurisdiction, but for the cases of enforced disappearance, which by

Number 21, Year 9, January 2017 19 Undeniable atrocities: Confronting crimes against humanity in Mexico

definition directly or indirectly involve State perpetrators, are not included in the government’s database. We identified a State policy of indiscriminate and There is good reason to believe that extrajudicial use of public force against any civilian enforced disappearances are extensive. Hundreds of cases have been well perceived as being connected with organized crime documented by the National Human Rights Commission (CNDH) and civil society organizations. But when these are pursued at all, prosecutors orders to commit atrocities, or who military officials, testimony of military frequently issue charges that obscure knew or should have known about officials in court cases, and such State involvement, categorizing them as atrocities by their subordinates and documentary evidence as the Army’s “kidnappings” or other lesser offenses. failed to prevent or punish them. Unlike written order to kill, issued to troops Undeniable Atrocities looks in detail simple crimes, crimes against humanity before the 2014 Tlatlaya massacre. It at government kidnapping statistics are not subject to a statute of limitations. also includes two major indications of and estimates that from 2007 through Undeniable Atrocities concludes policy by omission: the near total failure 2014, there were an astonishing 580,000 that there is a reasonable basis to to investigate and prosecute federal kidnappings in Mexico. If even a small believe that federal government actors proportion of these involved State agents, forces for these crimes, and the failure and the Zetas cartel committed murder, the number of enforced disappearances to pass a law regulating the use of force. enforced disappearance, and torture as would far exceed the nearly 500 At least in the years of their crimes against humanity, as defined in complaints of enforced disappearance at greatest strength, the Zetas maintained the hands of federal authorities received the Rome Statute of the ICC. Mexico a strong hierarchy and appeared to by the CNDH from 2007 through 2015. is party to the Statute. The atrocities perpetrate atrocities as part of a clear Much clearer is that there has been are widespread and systematic and organizational policy, namely, to almost no criminal accountability. are perpetrated against civilian terrorize civilian populations in specific During the past decade at federal level, populations in accordance with State or territories in order to extract payments there have been only 14 convictions for organizational policy. The “reasonable from other criminals active there. Some enforced disappearance. Despite many basis” standard we used is the one the of these crimes, including the notorious documented cases involving Army and ICC prosecutor must meet in order to San Fernando massacres of migrants, Navy perpetrators, only one soldier has open an investigation. involved the collusion of State actors. ever been convicted of the crime. We identified a State policy of We looked at the Zetas as a case study The same pattern extends to torture. indiscriminate and extrajudicial use of non-State actors. It is possible that Over the past decade there have been of public force against any civilian other criminal organizations in Mexico over 9,400 complaints of torture and ill- perceived as being connected with have also committed crimes against treatment to the CNDH, a figure that organized crime. The decision to use humanity. is widely considered low. Mexicans are force in this way is what has criminalized well aware that torture is an everyday the implementation of an otherwise Obstacles to justice practice of police and prosecutors. Yet legitimate State objective: to combat There are clear technical and resource from the beginning of 2007 through organized crime. Victims of federal barriers to criminal accountability for 2015, there were only six convictions for actors include members of criminal atrocities in Mexico, but we concluded torture at federal level, all of low-ranking organizations, but also a great many that these are secondary to political perpetrators. “false positives”—individuals falsely obstruction. accused of involvement in organized Crimes against humanity During the Calderón and Enrique crime. Other victims, dubbed “collateral Peña Nieto governments, political Crimes against humanity are pattern damage,” are innocent bystanders obstruction has taken several forms. crimes, and understanding these pat- gunned down through the reckless use First, the government has denied and terns opens the legal path to criminal of force. Evidence for the existence of minimized the existence of the crisis. accountability—not just for low-level such a policy includes statements from Officials at the highest level, as well as perpetrators, but for those who issued senior government officials and retired lower-level functionaries, frequently

20 Number 21, Year 9, January 2017 Eric Witte

make unfounded assertions that the Finally, the federal government of an ICC investigation will grow. That victims are themselves criminals. has failed to clarify ambiguities in prospect just might cause the govern- Government officials have attacked federal-state criminal jurisdiction, ment to accept the idea of international civil society representatives and or responsibilities within the federal involvement closer to home. n international officials who speak out bureaucracy. There is a clear pattern of about the generalized nature of these federal and state prosecutors exploiting NOTES crimes. jurisdictional ambiguity in order to The government has encouraged 1 Open Society Justice Initiative, Undeniable abandon inconvenient cases. Families Atrocities: Confronting Crimes Against and allowed the use of torture in of the disappeared routinely get the Humanity in Mexico (New York: Open Society criminal investigations. It even relied run-around. Foundations, 2016). For the government’s response, see “Posición del Gobierno Mexicano extensively on torture in the Ayotzinapa respecto al informe de la Organización Open investigation—the most closely ob- Breaking the cycle Society Justice Iniciative: Comunicado conjunto served criminal case in Mexico’s de la Secretaría de Gobernación, la Secretaría de The Mexican people know that their la Defensa Nacional, la Secretaría de Marina y la history. Torture allows the government justice system doesn’t work, which is Procuraduría General de la República” June 7, to obscure State responsibility for 2016, http://www.gob.mx/segob/prensa/posicion- why they report less than 10 percent del-gobierno-mexicano-respecto-al-informe-de- atrocities, and prosecutors and police of all crime to authorities. With its la-organizacion-open-society-justice-iniciative. who can make anyone confess to long history of broken promises, the anything have little incentive to learn government cannot repair that lack professional investigative techniques. of trust with more vows to reform. To Successive governments have build public confidence, it must take fiercely resisted accountability for atroc- bold actions. The central recommenda- ities perpetrated by the military. In nu- tion of Undeniable Atrocities is to create merous cases, civilian prosecutors have an investigative commission, based in manipulated evidence to cover up these Mexico, that would include interna- crimes, as was obvious in the Tlatlaya tional investigators and prosecutors. case involving extrajudicial killing by The mechanism would have a mandate the Army. to investigate atrocity crimes and grand This manipulation is possible be- corruption, and to introduce cases in cause prosecutors lack sufficient au- Mexican courts. tonomy, and forensic and witness Why would Mexico’s government protection functions fall within the agree to such a step? In its statement tainted Attorney General’s Office, where responding to the report, the govern- scientific findings and witness accounts are easily tampered with. ment clearly rejected international in- Mexican leaders have consciously volvement. But political calculations can decided to militarize the police forces. change. The approaching 2018 elections This creates heavily armed, poorly present one possibility for a new course. trained units adept at committing There are also more sobering routes atrocities and unskilled at investigating to change. Two years ago, following the crime. Ayotzinapa killings and disappearances, When pressed on atrocity crimes, hundreds of thousands of Mexicans the government has announced a series took to the streets. To defuse the situ- of initiatives with great fanfare—then ation, the Peña Nieto administration rendered them meaningless through agreed to invite the Inter-American politicization, a lack of political Commission on Human Rights to send support, and a withdrawal of funding. independent experts to audit its inves- The Unit Specialized in the Search for tigation. If the failings identified by the the Disappeared, the National Plan for Interdisciplinary Group of Independent the Search of Non-Located Persons, Experts (GIEI) in their reports are ig- Províctima, and the Victims’ Law all fit nored, more atrocities and more pro- this pattern. tests are inevitable, and the possibility

Number 21, Year 9, January 2017 21 Impunity and grave human rights violations in Mexico

The fight against impunity in Latin America. Diverse experiences from an international law perspective: The role of CICIG, MACCIH, and the GIEI

From left to right: Iván Velásquez, CICIG Commissioner; Carlos Beristain, member of the GIEI; Katya Salazar, DPLF; Eduardo Stein, former Vice President of Guatemala

n Monday, June 13, 2016, an event called “The against Corruption and Impunity in Honduras (MACCIH), Fight against impunity in Latin America. Diverse created to support and work with Honduran State institutions to Oexperiences from an international law perspective: prevent, investigate, and punish corrupt acts. The role of CICIG, MACCIH, and the GIEI” was held in Santo Participants in the event included Iván Velásquez, a current Domingo, Dominican Republic, during the General Assembly of the CICIG Commissioner; Carlos Martín Beristain, a former member Organization of American States (OAS). The gathering, which was of the GIEI-Ayotzinapa; Francisco Guerrero, OAS secretary for co-organized with WOLA (Washington Office on Latin America), and strengthening democracy and MACCIH coordinator; Eduardo Stein, OSJI (Open Society Justice Initiative), sought to reflect on different former vice president of Guatemala and a key actor during the aspects of these ad hoc mechanisms, which seek to cooperate with negotiations that led to the creation of the CICIG; and Mariclaire the States in their fight against impunity. These mechanisms offer Acosta, a Mexican human rights defense lawyer and former under- a range of capacities, from cooperation and technical assistance secretary of human rights and democracy at Mexico’s Ministry of to investigation and complaint before the courts, including the Foreign Affairs. formulation of recommendations and the proposal of structural and Iván Velásquez and Carlos Beristain addressed the main regulatory reforms. achievements of the CICIG and the GIEI, as well as the current The mechanisms discussed at this event were the International and past obstacles faced by these mechanisms. Eduardo Stein and Commission against Impunity in Guatemala (CICIG), created Francisco Guerrero addressed the political processes that gave to establish the existence of unlawful bodies and clandestine se- rise to the CICIG and the MACCIH, the political challenges to their curity apparatuses and their connection to State agents, and to creation, the scope of their mandates, and their jurisdictions and assist in the investigation of crimes committed by such groups; powers. Mariclaire Acosta linked the preceding presentations to the the Interdisciplinary Group of Independent Experts of current reality in Mexico and discussed the possibility of mobilizing Ayotzinapa (GIEI), established pursuant to the precautionary mea- international support to establish a similar institution in that coun- sure granted by the Inter-American Commission on Human Rights, try. All the speakers discussed how these institutions build their le- which sought to assist in the investigation of the forced disappear- gitimacy, their relationship to civil society, the State’s incentives for ance of 43 students of the Isidro Burgos Rural Teachers’ College their creation, and their relationship to the structural problems in the in Ayotzinapa, Mexico; and the Mission to Support the Fight countries where they work.

22 Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION

20Anniversary 1997-2017

Reform of the criminal justice system Defendants’ rights versus victims’ rights: A false dichotomy Miguel Sarre Tenured Professor at Instituto Tecnológico Autónomo de México (ITAM, Mexico Autonomous Institute of Technology) and member of the United Nations Subcommittee against Torture from 2007 to 2014

ome prominent groups have Kidnappers and other similar expressed their opinion in the criminals need one foot inside the State, Mexican media that human Two wounded hearts which not only provides them with Srights and due process in criminal cases placed on a scale: one privileged information but also grants contribute to crime.1 The broad social them impunity through the fabrication of acceptance of this position includes asks for justice, the other guilty parties. This involves police officers officials at the most senior levels of for revenge; and the most and prosecutors who induce or coerce federal and local government, and wounded heart only rests victims to identify innocent people, therefore it is appropriate to note its among other abuses. The outcomes, consequences, not only with respect to by weeping broadly disseminated in the media, the weakening of the rule of law but also allow these State accomplices to justify Blas Galindo, Mexican composer with respect to citizen security. remaining in their positions. (1910-1993) It might seem that the violence in In one paradigmatic case, the Mexico is due to an accident of geogra- Mexican Supreme Court (SCJN) is set phy, one that places us in close proxim- to adjudicate the amparo petition (pe- ity to the avid drug users of the United tition for a constitutional remedy) of an How did we get to this point? Police States. But the security crisis in Mexico, individual convicted of the offense of kid- officers, members of the military, and more than mere happenstance, is a polit- napping. The petitioner cites two illegal other State agents realize that the meth- ical calamity, characterized by the steep actions by the Mexico City Prosecutor’s ods used to combat crime 3 —which in- number of crimes committed by State Office to induce the victim to identify clude house searches, levantones,4 and agents for the sake of the prosecution and torture—can be applied for their own him in photographs and, upon his ar- punishment of common crimes. That is benefit, to commit common crimes such rest, through a one-way mirror, without serious in itself, but even more alarm- as robbery, kidnapping for ransom, and the participation of his defense lawyer.7 ing is the fact that this iatrogenic crime,2 drug trafficking. Groups of agents then The argument of the defense is that the created from within, drives new cycles of decide to become involved in these activ- flawed identification procedure and un- criminality. ities from within these institutions, from lawful detention had a corrupting effect Without the analysis of criminal outside, or serving as a conduit between on the entire case and on the sentencing.8 iatrogenesis, it is difficult to understand them. Judges cannot condemn arbitrariness the spiral of violence in Mexico. Each This process can be established by while at the same time tolerating that the cycle begins when a common criminal is connecting the dots backwards: it is no accuser benefits from it. pursued by members of the security in- coincidence that the members of the The attacks on due process and stitutions and the Ministerio Público, giv- most powerful criminal organizations human rights have reached independent ing rise to human rights violations, and were deserters from the Mexican Army.5 civil society organizations, criminal continues when the tenacious pursuers in Many of the most prominent crime fig- defense attorneys, the judiciaries, and turn become the new common criminals, ures have worked in the government’s national and international human rights generally even more skillful. security institutions.6 defense bodies, including the United

24 Number 21, Year 9, January 2017 Miguel Sarre

Nations special rapporteur on torture, Juan Méndez (who served from 2010 to 2016). The attacks have been so severe The security crisis in Mexico, more than mere that the chief justice of the SCJN, Luis happenstance, is a political calamity, characterized by María Aguilar, was forced to speak out vehemently in defense of the court’s the steep number of crimes committed by State agents function of guaranteeing individual rights and freedoms.9 When the administration of President Enrique Peña Nieto curries For the victims, managing to available in Spanish at http://www.wradio.com. mx/llevar.aspx?id=686806. favor with those who pit the rights of separate justice from revenge, to the defendants against the rights of crime 2 The “iatrogenic” concept comes from medicine, point of understanding that it is im- in reference to diseases acquired as a result of victims, it misinforms and fails to possible to obtain peace and security hospitalization or surgery. educate the public, as would be the case if without due process, is an intellectual, 3 Recall the cynical expression “I steal for the one were to reward a school that teaches crown,” attributed to José Luis Manzano, interior emotional, and moral challenge. For minister under then-president Carlos Menem of that the rights of the child cannot be met those in government, on the other hand, Argentina. See H. Verbitsky, Robo para la corona without diminishing the protection of such an approach is not merely optional; (Buenos Aires: Planeta, 2011). Similarly, many police officers justify their actions by claiming that the elderly, or vice versa. it is a constitutional requirement and a they torture “for the government.” Contrary to that false dichotomy, political exigency in view of widespread 4 Levantar (literally to lift, similar to the French the rights of victims to truth and justice impunity.11 enlever) is used colloquially in Mexico to identify both kidnappings carried out by common are predicated on respect for every The (indirect) contribution of criminals and the extrajudicial detention of a defendant’s right to due process: judges to collective security does not person by State agents. It is worth clarifying that the consist of making up for the deficits of 5 This is the case of the Zetas cartel, formed as an outgrowth of the Airborne Special Forces Group rights of the accused are not the prosecution, but rather of raising the (GAFE). See “Analizan las relaciones entre el “just” human rights guarantees; threshold of the lawfulness of its actions; crimen organizado y la política en América Latina” (Instituto de Investigaciones Sociales, they are part and parcel of the only in this way can police investigation Universidad Nacional Autónomo de México, April epistemological mechanism capacities be strengthened, the spiral 8, 2014), http://www.iis.unam.mx/indexcontent. for fact finding in criminal of iatrogenic violence halted, and the php?_module=681 proceedings. Respecting the 6 The penetration of police institutions and necessary public trust in the justice prosecutors’ offices by organized crime is rules to establish the truth system created. Without all of these, favored by the frequent turnover of the heads of requires full consistency with government institutions, their lack of effective there can be no real security. oversight over the lower chain of command, and rights of the accused; these It does not matter how much money their ignorance of the actual mechanisms of must be seen as an essential is spent on anti-crime campaigns in operation of the institutions they preside over, which are frequently controlled by commanders component of accurate and Mexico, or how many courthouses and and other mid-level agents. truthful fact finding on which prisons are built. Until society and its 7 In view of the growing judicial rejection of evidence punishment is premised. If only rulers demonstrate a firm belief in the obtained through torture, the prosecutors’ offices and police agencies increasingly resort to more one of these rights is violated, importance of due process, the greatest subtle methods to obtain results. in only one aspect, in only one risk to our future security will continue 8 Supreme Court of Mexico, First Division, ADR instance, the whole process to be posed by State agents who man 3055/2016. loses credibility and is likely to costly helicopters, handle sophisticated 9 Milenio.com. (June 15, 2016). “Detenciones sin fail in its objective of properly tortura” pide presidente de la Corte. Retrieved from: official weaponry, and carry out ordinary http://www.milenio.com/politica/Detenciones_ establishing the truth and of unlawful detentions. n sin_tortura-Suprema_Corte_de_Justicia_de_la_ imposing just punishment. Nacion-seguridad_juridica_0_756524362.html There is no truth outside the 10 S. Zappalà, “The Rights of Victims v. the Rights of NOTES the Accused,” Journal of International Criminal process; there is no truth that Justice 8, no. 1 (2010): 145. 1 Héctor Aguilar Camín, journalist with Hoy can be reached without full 11 See official figures on impunity in Mexico and its por Hoy, “Delitos y proceso penal en el Ejército” causes at bit.ly/2aPUV7t. respect of the rights of the [Crimes and criminal procedure in the Army], accused.10 interview on W Radio, October 9, 2008. Audio

Number 21, Year 9, January 2017 25 Impunity and grave human rights violations in Mexico

Visit by high court justices from Peru and Colombia to Monterrey, Nuevo León

From left to right: Leonor Arteaga, DPLF Senior Program Officer; Justice Carlos Arenas Bátiz, President of the Superior Court of Nuevo Leon; César San Martín Castro, Justice of the Supreme Court of Peru; Justice Alfredo Beltrán Sierra, former President of the Constitutional Court of Colombia

n August 15–16, 2016, the Due Process of Law Foundation of building public trust and improving the credibility of the judiciary. (DPLF) and Citizens in Support of Human Rights (Ciudada- Speakers also encouraged judges to apply international and com- Onos en Apoyo a los Derechos Humanos, CADHAC) orga- parative law standards when adjudicating cases involving complex nized a visit by Justices César San Martín Castro of Peru and crimes. Alfredo Beltrán Sierra of Colombia to the city of Nuevo León, in There was also a discussion group with local judges, a the Mexican state of Monterrey. The purpose was to contribute from collective dialogue with civil society, and a meeting with academics, a comparative law perspective to the ongoing discussions on the journalists, and opinion leaders. These forums provided space for roles of victims and defendants in criminal cases and the effective an informed debate on the role of judges in a democratic society investigation of complex crimes. and the challenges of implementing an accusatory criminal justice Justice San Martín Castro presided over the court that system, as Mexico is currently doing. convicted former Peruvian president Alberto Fujimori; he is now Justices San Martín Castro and Beltrán Sierra agreed on the chief justice of the Transitory Criminal Chamber of the Supreme need to respect due process as a measure to guarantee access Court of Peru. Justice Beltrán Sierra served as chief justice of the to justice, and they called upon the authorities to refrain from Constitutional Court of Colombia. attempting to justify serious human rights violations like torture as During their visit, the justices participated in a conference a necessary means of combating organized crime. entitled “The Importance of Due Process in the Context of This event was particularly timely in light of the current Violence,” together with Carlos Arenas Bátiz, chief judge of experience in Nuevo León with the implementation of the new the Superior Court of Nuevo León. This activity was held at the accusatory criminal justice system. This process has raised Superior Court and attracted legal practitioners, members of civil concerns insofar as it is seen as potentially allowing for the mass society organizations, students, and members of the media. The release of criminal defendants. The message was straightforward: speakers underscored how important it is that judges apply the law no system of criminal procedure is perfect or solves every problem, without interference from the political branches of government, and but when there are clear rules that respect human rights, victims that they be able to explain their decisions to the public as a means and defendants alike receive better justice services.

26 Number 21, Year 9, January 2017 Notes on implementation of the accusatory criminal justice system in Mexico and challenges to its consolidation

Iván de la Garza Professor at the Facultad Libre de Derecho de Monterrey (Monterrey School of Law)

Background on the reform One element that played a significant tion. However, given its size, geographic he reform of the criminal justice role during this implementation period composition, and federal system of legal system in Mexico did not begin was the worsening of crime rates and territorial organization, Mexico is a as an attempt to achieve national throughout the country. Most notably, special case. Ttransformation. Rather, it started with the murder rate increased by more than Accordingly, it should be under- efforts by two of the states: first, a 48 percent between 2008 and 2015. stood that there has not been one sin- “semi-reform” in Nuevo León in 2004,1 During the period from 2010 to 2012, gle implementation process in Mexico, and later, a much broader reform in the country had an average of 26,312 but rather 33 processes: one for each of 3 Chihuahua in 2006. homicides per year. the 32 federal entities, plus a process at In 2004, President Vicente Fox It is also essential to underscore the the federal level. Each state has its own Quesada introduced an initiative to presence of organized crime throughout practitioners in the system, that is, its implement the accusatory criminal almost the entire country. Criminal or- office of the prosecutor or attorney gen- justice system at the national level, ganizations are no longer engaged solely eral, its courts, its public defenders’ of- but this was postponed.2 It was not in drug trafficking, but have expanded fice, and its police forces. Furthermore, until the constitutional reform of June into other crimes such as kidnapping, 18, 2008, under the administration of police matters require that a distinction extortion, and human trafficking.4 President Felipe Calderón Hinojosa, be made between the investigative po- In this context of widespread crim- that the accusatory criminal justice inality, promotion of a legal system that lice and the police responsible for pub- system became mandatory for all of the defends due process, limits pretrial de- lic safety, which may report both to country’s jurisdictions. The transitional the state government and to the local articles of this reform established a tention, and guarantees the presumption municipalities. vacatio legis of eight years so that the of innocence is quite complicated. In addition, each state has had federal government, the states, and the From the standpoint of public pol- military justice system could make the icy—and even though it sounds trite to to consider its own particularities necessary institutional adjustments say so—the implementation process has in making decisions about the to ensure that the accusatory system been highly complex. This has undoubt- implementation process, taking into would be operational throughout the edly been a reality for all countries that account its population size, number of country by June 2016. have embarked on such a transforma- municipalities, and criminal typology.

Number 21, Year 9, January 2017 27 Notes on implementation of the accusatory criminal justice system in Mexico and challenges to its consolidation

Challenges to consolidation impunity and, consequently, skepticism pay, 5) preventing work overload, and about the reform process. 6) managing expert witness support for A great many challenges remain to It should also be a priority for the of- the establishment of evidence.5 be addressed. Nevertheless, we would fices of prosecutors or attorneys general argue that certain issues are particularly to strengthen their coordination plans • Harmonization of urgent because of their system-wide with the police. We think that this will be constitutional justice and the impact and because they are common possible only to the extent that the pros- accusatory criminal justice throughout the country. Four such ecutors understand their role in leading system issues are discussed below. the investigation and the police develop It is crucial to rethink the concept of • Reorganization of the offices the necessary proficiency to take charge amparo (petition for a constitutional of prosecutors and attorneys of investigative actions in keeping with remedy) in the criminal justice process. general and improved the standards of investigation demanded Under the traditional system, the amparo coordination with police by the accusatory system. played a decisive role in the defense of the fundamental rights of the accused, During the initial years of implementa- • Strengthening of the public becoming their principal guarantee. tion, efforts were concentrated mainly defender service However, the accusatory system in and on the oral aspect of hearings, with an The criminal justice reform seeks to of itself provides a significant number of emphasis on the oral proceedings of the guarantee the right to an adequate de- controls, both preventive and reactive, criminal trial. This inertia meant that fense, requiring the State to provide a that serve to limit the abuse of State the impact and importance of the inves- high-quality public defender service power. Preserving the current design tigation phase was overlooked, and this staffed by defense attorneys who are ca- and practices of amparo could end up omission in turn led to neglect of one of reer professionals and who are remuner- hampering the criminal justice process the key criminal justice reform issues: ated at the same rate as the prosecutors. and, in the worst-case scenario, could the transformation of the Ministerio However, the institutional design contribute to impunity. Público. of the public defenders’ offices does not In addition, the case law created In this author’s opinion, the princi- appear to meet those standards. While within the traditional justice system pal task for the Ministerio Público is to some states make an effort to meet the should be reviewed in order to deter- adopt a working model that enables it constitutional guidelines on the is- mine which cases may still be appli- to be more efficient and more effective sue, for others it does not seem to be cable in the accusatory system. This is in the types of solutions it offers for the a priority. particularly important if we consider diverse matters it handles. Therefore, Nevertheless, in terms of the that there are legal concepts that have as part of its procedures, the ministry quality of service and the establishment similar names in both systems, but dif- must classify matters with the objective of a career service for public defenders, ferent content and objectives. of resolving them according to the array we believe that certain changes are of possibilities offered by the National imperative in order to strengthen the • Evaluation and information Code of Criminal Procedure: the con- public defenders’ offices and comply with systems ditional suspension of proceedings, the reform. These include: 1) providing restitution agreements, expedited pro- Finally, it is a priority to have an in- the public defenders’ offices with ceedings, and temporary stays of pro- formation and evaluation system that technical and operational autonomy, ceedings, among others. allows for a clear and objective view of as well as with legal personality and Although it seems to have been un- the performance of the criminal justice their own assets; 2) guaranteeing the derstood that not every matter will be reform. adequate working conditions required disposed of through oral proceedings, Although interesting efforts have for public defenders to perform well; one of the main complaints against been made to establish such informa- 3) establishing a professional career the traditional justice system appears tion systems—for instance, through service that makes it possible to to persist: many cases received by the the National Institute of Statistics and have public defenders who provide Ministerio Público remain stalled there Geography, the Executive Secretariat of high-quality service to their clients; without any response. If this trend is not the National Public Safety System, and 4) guaranteeing that public defenders reversed, the Ministerio Público will end the now-defunct Technical Secretariat and prosecutors enjoy similar rates of up being a giant bottleneck that fosters of the Coordinating Council for the

28 Number 21, Year 9, January 2017 Iván de la Garza

Implementation of the Criminal Justice Nevertheless, it should also be 20,762 in 2015. In 2010, there were 25,757 confirmed murders, in 2011 there were 27,213, and in 2012 System—at the present time there is no recognized that there are problems, there were 25,967. See “Mortalidad: Conjunto de standardized and reliable way to assess some very serious, that must be tackled datos: Defunciones por homicidios” on the website of the Instituto Nacional de Estadística y Geografía whether expectations of the criminal in the short term. If the decision makers (National Institute of Statistics and Geography), justice reform process are being met. disregard their obligation to address these www.inegi.org.mx/sistemas/olap/proyectos/bd/ issues, there is a risk that criminal justice continuas/mortalidad/defuncioneshom.asp?s=est. 4 Conclusion reform could end up like so many other On the evolution of organized crime in Mexico, see http://narcodata.animalpolitico.com. promises of transformation: changing In our opinion, the current status of 5 J. de la Torre Rodríguez, A. Barrera Sánchez, and everything just to stay the same. n the criminal justice reform process in G. Reyes Salas, Guía para el diseño, instauración y fortalecimiento sustentable del servicio profesional Mexico oscillates between two poles: de carrera en las defensorías públicas estatales on one hand, the hope for justice, and NOTES en México: Los estándares de la defensa pública en el nuevo sistema de justicia penal mexicano on the other hand, the fear that things 1 On the 2004 reform in Nuevo León, see M. (Mexico: Secretaría Técnica del Consejo de will appear to change, only to remain the Ayala, J. Carrasco, A. Sauceda, and A. Varas, La Coordinación para la Implementación del Sistema same. reforma al sistema de justicia penal en Nuevo de Justicia Penal, Secretaría de Gobernación, León: Sus principales tendencias (2004–2007) 2014); H. Fix-Fierro and A. Suárez Ávila, “Hacia Unquestionably, certain aspects of (Mexico: Renace and Facultad Libre de Derecho de una defensa pública de calidad: El nuevo diseño the reform are already evident, albeit in Monterrey, 2009). In addition, on implementation institucional de las defensorías públicas en las over time of reform in this state, see Observatorio entidades federativas de la República mexicana,” some states more than others. Generally Ciudadano de la Justicia, “Nuevo León y sus Cuestiones Constitucionales: Revista Mexicana speaking, civil society organizations, uni- ‘sistemas’ de justicia,” December 4, 2015, http://ocj. de Derecho Constitucional (Universidad Nacional Autónoma de México, Instituto de Investigaciones versities, and, in quite a few cases, profes- org.mx/2015/12/04/nuevo-leon-y-sus-sistemas- de-justicia/. Jurídica), no. 32 (January–June 2015): 157–200; sionals working within the justice system V. Baz et al., Hallazgos 2015: Evaluación de la 2 The basic content of the reform initiative is available implementación y operación a ocho años de la have demonstrated their enthusiasm for on the website of former president Vicente Fox, fox. reforma constitucional en materia de justicia the reform, hoping that it will meet the presidencia.gob.mx/actividades/?contenido=7839. penal (Mexico: Centro de Investigación para el initial high expectations. 3 Murders rose from a total of 14,006 in 2008 to Desarrollo, 2016).

The Special Jurisdiction for Peace in Colombia Recommendations for the selection of judges for the chambers and divisions of the Tribunal for Peace

he Special Jurisdiction for Peace (SJP) is a completely new experience in Latin The Special Jurisdiction for Peace in Colombia: America. The victims’ right to justice and the need to establish the facts of Recommendations for the Selection what happened—and, if appropriate, to punish the perpetrators—are the driving of Judges of the Chambers and Divisions T of the Tribunal for Peace forces behind this transitional justice mechanism. Created by agreement between the Colombian government and the FARC-EP guerrilla group, the SJP has jurisdiction over crimes committed in the context of and because of the armed conflict, in particular grave human rights violations and serious breaches of international humanitarian law. The pivotal role of the SJP in restoring confidence in the rule of law and consolidating peace means that its members must be persons ideally suited to perform the tasks entrusted to it. Drawing on international standards for the selection of high court judges, best practices observed in the region, and the experience of other transnational justice mechanisms around the world, this document makes recommendations for the design of a transparent procedure for the selection of peace judges that will yield those results.

Number 21, Year 9, January 2017 29 Penalties, pretrial detention, and precautionary measures in criminal procedure: The urgency of a new constitutional reform in Mexico Carlos Ríos Criminal justice and human rights expert

n June 18, 2016, Mexico’s new accusatory criminal procedure system finally entered into Oforce nationwide. Following publication of the 1934 criminal code, which was based on the inquisitorial model, it took 82 years for the national legal system to acknowledge the need to return to the original ideas of the 1917 constitutional convention, which introduced the principles of the accusatory model of criminal procedure in Mexico. According to its political rationale, the accusatory process allows for the preservation of the rights of the different parties while incorporating important elements needed for effective criminal prosecution, and it provides counterweights to ensure respect for the principle of the presumption of innocence and other due process the vicissitudes of post-revolutionary of the Constitution governing criminal guarantees. Nearly a century passed since Mexico kept the Constitution from procedure. these principles were first discussed in achieving regulatory effectiveness on Eighty-two years later, we run the 1917 before they were put into practice. that point, and the institutions of accu- risk of having history repeat itself. This The idea of a criminal procedure satory criminal procedure were never time, the higher regulatory principles based on a mixed-inquisitorial court addressed by the regular legislature. As provided in international human rights system was examined, harshly criticized, a result, the system continued with the law for the application of precautionary and finally ruled out by the 1917 consti- same procedure inherited from the colo- measures, including pretrial detention, tutional convention. In fact, an extensive nial era. In 1934, when the Federal Code are weakened by procedural views procedural revolution was announced in of Criminal Procedure was published, that are still culturally rooted in the the message that Mexican revolutionary the inconsistency with the superior gov- inquisitorial culture. leader Venustiano Carranza delivered to erning principles of the Constitution Both the Inter-American system the convention when it was established of 1917 was legitimized in the law. In and the United Nations’ universal system on December 1, 1916. Nevertheless, essence, the law repealed the sections for the protection of human rights have

30 Number 21, Year 9, January 2017 Carlos Ríos

established a regulatory doctrine that and the introduction of written records commitment to the principles of human characterizes precautionary measures at oral hearings. In addition, it became rights in relation to the application of and pretrial detention as instruments to possible for courts to impose pretrial precautionary measures and pretrial be used on an exceptional basis—that is, detention on their own motion for cer- detention in criminal cases. The study only when there are objective reasons to tain types of crimes considered to have suggests that there is a firmly rooted suggest that the defendant is connected special impact. culture that views pretrial detention to the criminal act, and there is a risk These inquisitorial court rules as a form of social control to prevent of flight, a risk that evidence may be create structural dissonance in Mexican crime. That culture can, when put into tampered with, or a well-founded risk of criminal procedure that prevents it practice, undercut the general principles harm to the victims. from developing naturally. When of the accusatory model and the The rationale for this system is precautionary measures are confused democratic values that inform it, thereby that the entire criminal case must be with penalties—as they will be unless jeopardizing the viability of the recently built on two core values that follow their reasonableness is examined at the introduced criminal procedure. from the principle of the presumption time of their application—the legitimacy If a catalog of crimes not subject of innocence:1 first, that the rights of of the criminal process as a whole is to pretrial release is maintained, con- individuals to their liberty can only affected. Practitioners in the system stitutionally and legally, we can expect be abridged when there is evidence to and the public in general have the that the longstanding orientation of the overcome the presumption of innocence expectation that pretrial detention will Mexican criminal process, with its in- to which every defendant is entitled; and be applied when the crime for which the quisitorial features, will continue to pre- second, that the construction of a system person is being prosecuted is considered vail among generations of law students. of pretrial detention and precautionary “serious.” The procedure itself should not The reform of Mexico’s criminal justice measures should be compatible with be turned into a form of punishment. system demands not only a solid institu- the rules of treatment that must be A report published by the Due tional and regulatory framework but also applied to a criminal defendant when Process of Law Foundation in 2016, en- a cultural transformation. This is why he or she is subject to proceedings titled Pena sin delito: Percepciones acerca the constitutional reform of 2008 needs intended to demonstrate his or her de la finalidad de la prisión preventiva to be fine-tuned to eliminate once again responsibility for a crime. This demands en México (Punishment without crime: the concept of pretrial detention on the that precautionary measures—especially Ideas on the purpose of pretrial detention court’s own motion and other mecha- pretrial detention—should never be in Mexico), conducted a legal analysis of nisms such as arraigo that clearly violate thought of as advance punishment, but the Mexican criminal procedure system, fundamental rights. Otherwise, we run may only be applied based on the need both at the constitutional level and with the risk of repeating the events of 1934.n for precaution. respect to the secondary laws applicable The 2008 constitutional reform per- throughout the Republic, as well as in NOTES taining to criminal matters reintroduced four states (Chihuahua, Morelos, state the overarching principles of the accusa- 1 Principle contained in Article 8.2 of the American of Mexico, and Oaxaca). The study con- Convention on Human Rights and Article 14.2 of tory criminal court system: procedural cluded that there are significant discrep- the International Covenant on Civil and Political immediacy, contradiction, continuity, ancies between the superior model that Rights. concentration, and openness. But it left provides for a rights-based court system 2 Arraigo is a legal concept in the Mexican criminal justice system that allows the Ministerio Público to significant issues pending with respect under international human rights law, on keep a criminal defendant subject to its jurisdiction to the regulation of precautionary mea- one hand, and the Mexican Constitution, in order to prevent his or her potential flight while sures, including pretrial detention. This preliminary investigations are conducted by the on the other. These discrepancies in- public prosecutor. It is a concept that is considered reform was informed by contrasting clude the existence of a list of offenses for to violate human rights because it contravenes the views on how the process and its objec- which pretrial release cannot be granted principle of the presumption of innocence. tive should be understood. Accordingly, and that require the judge to impose pre- 3 Available in Spanish at http://dplf.org/es/ resources/pena-sin-delito-percepciones-acerca- in spite of its notable rights-based ori- trial detention. de-la-finalidad-de-la-prision-preventiva-en- entation, its final wording retained The study also explored empirically mexico. elements that are inconsistent with a whether practitioners in the system, 4 Decentralized administrative body of the democratic criminal procedure. including trainers certified by the Department of the Interior, created to support and assist federal and local authorities in actions as A number of instruments de- Technical Secretariat of the Coordinating needed during the implementation of the criminal signed to combat organized crime Council for the Implementation of the justice system reforms in Mexico. were preserved, particularly arraigo2 Criminal Justice System, have a strong

Number 21, Year 9, January 2017 31 Impunity and grave human rights violations in Mexico

Punishment without Crime: Ideas on the Purpose of Pretrial Detention in Mexico

From left to right: Javier Carrasco, IJPP; Iván de la Garza, professor at the Facultad Libre de Derecho de Monterrey; Carlos Ríos, criminal justice specialist and author of the report; Ursula Indacochea, DPLF; Layda Negrete, México Evalúa and Ana Dulce Aguilar, IJPP.

n Mexico City, the Due Process of Law Foundation (DPLF) and the Institute of Procedural Criminal Justice (Instituto de Justicia Procesal Pena, (IJPP) Ipresented a report entitled Punishment without Crime: Ideas on the Purpose of Pretrial Detention in Mexico. The report was prepared by Carlos Ríos Espinosa, a criminal justice and human rights researcher, with the support of the IJPP. Other contributors included Ursula Indacochea, coordinator of DPLF’s Judicial Independence program; Javier Carrasco, executive director of IJPP; Iván de la Garza, professor of law at the Facultad Libre de Derecho de Monterrey; Miguel Sarre, professor of law at the Instituto Tecnológico Autónomo de Mexico; and Layda Negrete, coordinator of the Quality of Justice Project at México Evalúa. The report, placing special emphasis on pretrial detention, examines the use of precautionary measures in the new accusatory justice system with re- Percepciones sobre la finalidad spect to four main issues: i) the compatibility of the Mexican legal framework de la prisión preventiva en México with international human rights law, ii) the way in which practitioners in the new system perceive the independence of the judge when he or she applies precau- Carlos Ríos Espinosa tionary measures, iii) the perception held by prosecutors and public defenders with regard to the objectives pursued by those measures, and iv) the way in which the media report facts related to police detentions and the use of precau- tionary measures. One of the most notable conclusions of the report is that the success of the new accusatory system of criminal procedure, especially its system of pre- cautionary measures, could be at risk because of the distorted perception that judges and lawyers have of their own role in the system and of the objectives these measures pursue. This erroneous perception, sometimes encouraged by the print media, could end up destabilizing the rights-based nature of the crimi- nal justice system, leading to its failure.

32 Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION 20 Anniversary 1997-2017

Institutional Reforms Impunity and grave human rights violations in Mexico The power of the president to appoint senior justice authorities in Mexico

Úrsula Indacochea Senior Program Officer Judicial Independence, DPLF

here are no ideal formulas in certain minimum guidelines designed these decisions, or any mechanisms comparative law to establish to streamline the selection process and for citizen participation at that stage; mechanisms for the selection create the conditions to ensure that and the lack of effective remedies to Tof senior justice system authorities that the candidates chosen are the most judicially challenge appointments that shield them from all undue influence. suitable to hold those positions. They fail to comply with the rules of the game Nevertheless, the power to select these need to be able to discharge their duties (with respect to procedures as well as the authorities, and the way in which it is independently and free from undue assessment of merit). Hence, nothing exercised, is perhaps one of the most re- influence or pressure, both external can be done to dispute the appointment vealing indicators of a particular State’s and from within their own institutions. of an unqualified candidate, or one that engineering of checks and balances and Regardless of the mechanism adopted, has clear conflicts of interest. of how it views the role of citizens in these minimum guidelines require (i) The procedure for selecting justices building democracy. procedural transparency, (ii) maximum for the Supreme Court of Mexico Some countries in the region, such openness of all stages and elements, (iii) (Suprema Corte de Justicia de la Nación, as El Salvador and Guatemala, have the most objective criteria possible for SCJN) is a case in point. Under Article entrusted their judicial councils or identifying the merits of the candidates, 96 of the Mexican Constitution, this is a ad hoc selection committees with the and (iv) the regulation of mechanisms two-stage procedure: the president must responsibility of screening candidates, for the participation of civil society, submit a short list of three candidates to leaving the final decision in the hands which guarantee effective citizen the Senate for consideration in order of a political body like parliament. oversight. to fill each vacancy. The Senate, after a Others, such as Peru, select their senior In the case of political mechanisms, public hearing, must select one of the prosecutors and justices through a these guidelines function by strictly candidates within 30 days. If it fails to public competition. Still another curtailing the discretion of the political do so, or rejects the short list twice, the model is election by popular vote in authority, because they render the president decides. Bolivia, where the political body—the decision-making process public and The constitutional provision does Plurinational Assembly—is responsible subject it to intense citizen oversight not include—nor does any lower- for screening applicants. Colombia is regarding the suitability of the ranking law include—a requirement a special case because of the strong candidates chosen. for transparency or openness in tradition of its high courts, which In Mexico, however, the me- the president’s decision. Nor does select their own members. Only a few chanisms for the selection of senior it establish mechanisms for citizen countries, including Argentina and justice authorities retain a strong autho- participation that would allow for Mexico, continue to select their high ritarian slant. This is reflected in the objections to candidates that do not fit court authorities through procedures predominant role given to the President the profile (the description of required that involve political bodies exclusively, of the Republic to nominate or propose credentials and characteristics), or following the US model. candidates; the imperviousness of for the airing of valuable information Given this variety of mechanisms, presidential nomination decisions; the about their background. The president international law has established absence of any duty to publicly justify is not required to state the reasons

34 Number 21, Year 9, January 2017 Úrsula Indacochea

for his or her nominations. On the contrary, Article 95 of the Constitution weakens the regulatory requirements In Mexico the mechanisms for the selection of senior of the profile by specifying that the justice authorities retain a strong authoritarian slant. appointment should go “preferentially” This is reflected in the predominant role given to the rather than “necessarily” to persons President of the Republic who fit the profile. This provision could, in practice, result in only one—or none—of the shortlisted individuals being a suitable this appointment, there are no rules ident compiles a short list of three candidate for the SCJN (the so-called that impose transparency and openness names; and, after a public hearing, the “shortlist of one” or “blank shortlist”). on the presidential decision, much less Senate chooses one of them to serve as This would force the Senate to choose a duty to assess essential components the new prosecutor general. However, it an unsuitable person for the position of the profile, such as the absence fails to mention transparency and open- or to reject all of the names on the of conflicts of interest that could ness, citizen participation, or merit as shortlist. In such situations, the Senate’s jeopardize the candidate’s autonomy, or the guiding criterion for the decision. ability to screen and select Supreme a commitment to human rights. This three-stage mechanism con- Court justices becomes merely formal The president’s recent appointment tinues to grant final appointment and devoid of content. of Raúl Cervantes, in October 2016, as authority to the president in the Compared to the opacity of the new head of the PGR, followed by event that the Senate fails to make an the presidential nomination, the Senate confirmation in a public session appointment within the established time process in the Senate enjoys greater that lasted barely 45 minutes, made clear periods, which are, moreover, clearly transparency, given the public nature of the absence of checks and balances from insufficient to allow the legislature to the legislature’s work. Even so, there are this mechanism. Civil society was left properly investigate and evaluate the no clear rules that regulate this phase. out of the process completely. Greater candidates’ backgrounds. If the intent of In each selection process, the Senate public scrutiny would have shed light the constitutional reform was to create Justice Committee—which must issue on the new attorney general’s partisan an autonomous Office of the Prosecutor a decision to the Senate’s Plenary— political ties, which were incompatible General, the procedure for appointing approves the rules to which it will be with the ideal profile of the country’s its head should include the necessary subject, which may or may not allow for most senior justice official. guarantees to preserve such autonomy. citizen participation. The same shortcomings are ap- Ineffective checks and balances, Another more recent example is parent even in the regulation con- the dominance of the executive branch, the procedure for selecting the attorney tained in the new text of Article 102-A the imperviousness and opacity of general. The Office of the Attorney of the Constitution, which will serve nominations, the absence of civil society General of the Republic (Procuraduría to select the new head of the Office of participation mechanisms, and the General de la República, PGR) is the the Prosecutor General of the Republic impossibility of challenging irregular country’s highest criminal investigating (Fiscalía General de la República, FGR), appointments in court are hallmarks and prosecuting authority and is part of a body with constitutional autonomy of the selection processes for senior the Federal Executive Branch. According pursuant to the reforms of February justice system officials in Mexico—a to the applicable text of Article 96 2014. This provision once again stip- country that needs, now more than (IX) of the Mexican Constitution, the ulates a political appointment mecha- ever, trustworthy institutions and attorney general must be appointed nism, one in which the Senate proposes independent senior officials capable of by the president and confirmed by the a list of 10 candidates to the president leading these institutions strategically Senate. In spite of the importance of within 20 days of a vacancy; the pres- in the fight against impunity. n

Number 21, Year 9, January 2017 35 Impunity and grave human rights violations in Mexico

Guidelines for the selection of senior justice authorities: Attorney general or prosecutor general

he Due Process of Law Foundation has published a report entitled Guidelines for the Selection of Senior Justice TAuthorities: Attorney General or Prosecutor General. It describes optimal procedures for the selection of individuals to fill those senior positions and suggests elements to be included in the ideal profile of an Attorney General or Prosecutor General as an appropriate way to identify the merits of the candidates. Transparent, public, participatory, and merit-based selection has a direct impact on the suitability of the candidate selected, and, therefore, on the independence and autonomy of the entire institution. The presence or absence of those features influences the effectiveness and initiative with which crimes are prosecuted and can have repercussions on the decision to either bring a criminal action or shelve the investigation in specific cases. Proper selection of candidates is therefore a crucial element in the fight against impunity. The report is based on comparative experience in the selection of attorneys general and prosecutors general in the region, as well as on rules and standards developed within the framework of the United Nations, the Inter-American Human Rights System, and the Council of Europe. It also provides some examples in which the vio- lation of those standards has led to appointments being successfully challenged in court.

Infografía relacionada

36 Number 21, Year 9, January 2017 Impunity and grave human rights violations in Mexico

The Prosecutor’s Office that Mexico Needs: Reflections from the Latin American Experience for the Design of the New Office of the Prosecutor General

From left to right: Grace Fernández Morán, victim; Ursula Indacochea, Senior Program Officer for Judicial Independence, DPLF; Ana Lorena Delgadillo, Executive Director FJEDD; Layda Negrete,independent researcher; Edgar Cortez, IMDDH; Ximena Suárez, associate for Mexico, WOLA.

#Fiscalía QueSirva

n international seminar, “The Prosecutor’s Office that Claudia Paz y Paz, former Attorney General of Guatemala; Víctor Mexico Needs: Reflections from the Latin American Cubas, Attorney General of Peru; Julio Contardo, Regional AExperience for the Design of the New Office of the Prosecutor for Bío Bío of the Office of the Public Prosecutor of Chile; Prosecutor General of the Republic,” was held in Mexico City and Gina Cabarcas, Deputy Director of public policy in the Office on November 28–29, 2016. The event was co-organized with the of the Prosecutor General of Colombia. Mexican experts introduced Foundation for Justice and Rule of Law (Fundación para la Justi- each topic from the local perspective. cia y el Estado Democrático de Derecho, FJEDD) of Mexico, and Issues discussed by the panelists included the institutional the Washington Office on Latin America (WOLA). Mexico will soon challenges of transitioning to an accusatory criminal justice system; transition from the current Office of the Attorney General of the the strategic design of a criminal prosecution policy and its indica- tor-based evaluation; institutional guarantees for the constitutional Republic (Procuraduría General de la República, PGR) to the new autonomy of the Office of the Prosecutor General; the profile and Office of the Prosecutor General of the Republic (Fiscalía General process for selection of the prosecutor general; the service com- de la República, FGR). The objective of the seminar was to debate ponents of prosecutorial training and its minimum standards; ac- the model currently in use in Mexico and the principal aspects to be countability mechanisms; the management of investigations and the addressed by a new law that will regulate the transition and the de- autonomy of expert witness services; the redefinition of the rela- sign of the new office, drawing on models and experiences in other tionship with victims; the investigation of complex crimes and the countries of the region. creation of specialized prosecutors’ offices; and measures for tran- The event was designed to be a closed workshop for members of sitioning to the new model. civil society organizations and activists from the #FiscalíaqueSirva This dialogue between the participants and the international (“For a Prosecutor’s Office that Works”) movement. Participants in- guests made it possible to take advantage of the recommendations cluded international experts such as Marco Fandiño and Leonel and lessons learned from international experience, and to draw con- González of the Justice Studies Center of the Americas (Centro clusions and identify minimum points that should be included in the de Estudios de Justicia de las Américas, CEJA), a project of the secondary laws of the new FGR. It also allowed Mexican civil society Organization of American States (OAS); Gonzalo Rúa of the to prepare for active and informed participation in the public debate Institute for Comparative Studies in the Criminal and Social Sciences on the enactment of the secondary laws, as well as on the amend- (Instituto de Estudios Comparados en Ciencias Penales y Sociales, ment of various articles of the Constitution pertaining to the process INECIP) in Argentina; Jan-Michael Simon, of the Max Planck for selecting the prosecutor general and to the automatic transition Institute for Foreign and International Criminal Law in Germany; of the chief and staff of the old PGR to the new FGR model.

Number 21, Year 9, January 2017 37 Impunity and grave human rights violations in Mexico

The selection process for Supreme Court justices in Mexico: Recommendations for selecting the best candidates based on international and comparative law

n December 2015, DPLF published a report assessing the process for the selection of two new justices of the Supreme ICourt of Mexico (SCJN). The report supplements Luis Pásara’s prior evaluation of the regulation of this procedure. The selection of members of the high courts is a significant event in a country’s political and institutional life, as it concerns the maximum judicial authority that must adjudicate society’s most salient controversies. Therefore, the existence of processes that make it possible to select the most qualified individuals to sit on the highest courts is a specific measure with major impact on the independence of the judiciary as a whole. The selection of the most suitable people for these positions helps strengthen democracy and the rule of law and guarantee the effective separation of powers. The report presents various recommendations on ways to bring the current procedure for selection and appointment of Supreme Court justices in Mexico into line with current inter- national standards and best practices for the selection of high court judges in international law and comparative experience.

38 Number 21, Year 9, January 2017 Reflections on Mexico’s national anti-corruption system Óscar Arredondo Researcher at FUNDAR, Centro de Análisis e Investigación (FUNDAR Center for Analysis and Research), Mexico City

ransparency International’s Cor- education, and other indispensable in police agencies, the ties between poli- ruption Perceptions Index ranks elements that we need for a decent ticians and organized crime, corruption Mexico 103rd out of 175 coun- life cannot be guaranteed by a corrupt in the electoral system, corruption in Ttries,1 and of the 34 nations that make government. The State’s inability to the criminal justice system, and all as- up the Organization for Economic Co- address or resolve the country’s biggest pects of extortionate corruption, or as it operation and Development (OECD), problems is due in large measure to the is often called, low-level corruption. our country is considered the most cor- fact that corruption is deeply rooted at During the 2012 electoral race, Peña rupt. In recent years, these poor rankings all levels of government. Impunity is Nieto, then the presidential candidate have been borne out by scandals. The the fuel that feeds and exacerbates this of the Institutional Revolutionary Party weakness of Mexico’s institutions and phenomenon. The greater the impunity, (Partido Revolucionario Institucional, legal framework has allowed corruption the greater the corruption. PRI), spoke at a campaign event at to permeate all structures and systems Rather than taking the compre- the Ibero-American University in within the government to the point hensive and multidisciplinary approach Mexico City. He expressed pride in the where corruption has become normal- required to address corruption, the social repression that he had ordered ized. The phenomenon has become im- constitutional reform of May 2015 and in 2006, as governor of the state of mensely complex, and its effects have an the secondary laws emanating from Mexico, in the municipality of San impact on all sectors of society. it have focused thus far on the man- Salvador Atenco, where state police The indications of corruption agement, oversight, and monitoring violently confronted citizens who were involve senior government officials, of public spending, as well as on the protesting the expropriation of their reaching as high as President Enrique strengthening of punitive and account- land for the construction of an airport. Peña Nieto. On July 18, 2016, during the ability mechanisms and authorities, Two people died in that confrontation, enactment of secondary laws regulating principally in the administrative realm. and 26 women reported being raped by the National Anti-Corruption System This approach is useful as an initial step state and municipal police. This speech (SNA), the president publicly apologized toward curtailing corruption in Mexico. garnered the collective repudiation of for his own apparent conflict of interest Nevertheless, Congress must move to the university community, and later in view of the November 2014 revelation enact laws that combat other aspects of a video was leaked showing that the that a government contractor had corruption, such as the abuse of power candidate ordered the investigation of granted a line of credit to his wife on preferential terms for the purchase of a property known as the “White House.” Corruption aggravates all of the country’s problems and is an enormous The State’s inability to address or resolve the country’s obstacle to its development. It also biggest problems is due in large measure to the fact that undermines citizens’ opportunities and corruption is deeply rooted at all levels of government the exercise of their constitutional rights. The democracy, justice, security, health,

Number 21, Year 9, January 2017 39 Reflections on Mexico’s national anti-corruption system

the students who angrily ran him out of their university after this event. In response, 132 students made Nevertheless, neither the legal advances nor the a video in which they identified resources for their implementation are as yet sufficient themselves as students of Ibero- American University. Most of the to break from the structures of corruption that are so country’s public and private school firmly entrenched in the government students joined the protest, and the election campaign ended in massive demonstrations of contempt throughout the country. Peña Nieto’s inauguration ferences among the parties and in light represented in the legislature, but also on December 1, 2012, was held amid a of the high-profile state elections, the various proposals and observations put climate of protest. The following day, the Pact for Mexico broke down, ending forward by civil society organizations. main political forces signed the “Pact for the prospects for creation of a National The bill was passed by Congress at the Mexico,” an agreement that included a Anti-Corruption Commission. end of February, and the constitutional legislative agenda designed to maintain The representatives in the lower reform took effect in May 2015. governability and accomplish the chamber of Congress, rather than The creation of a National Anti- changes proposed during the campaign taking up the idea of a Commission Corruption System in the Mexican through an alliance of the country’s again, considered different opinions Constitution entailed construction three major political parties: the PRI, and suggestions from civil society of a new legal framework for the the Democratic Revolution Party and academia and reflected on the monitoring and oversight of public (Partido de la Revolución Democrática, importance of resolving the law’s key spending, the administration of justice PRD), and the National Action Party limitations, particularly with respect to in cases related to serious irregularities, (Partido Acción Nacional, PAN). One the proper oversight of public resources and the establishment of civil and of the most important commitments and the reliable administration of criminal liability. Legislative action of the Pact for Mexico was to promote justice. Various initiatives were took account of clear and compelling reforms to the legal framework related presented with the aim of creating a proposals from organized civil society to transparency, accountability, and the “system” rather than a single isolated and from an enormous number of fight against corruption. authority. citizens who backed the proposal to These anti-corruption reforms While political forces were dis- Congress through a Citizen Initiative began to take shape in 2012, at the cussing creation of an anti-corruption for a General Law of Administrative beginning of President Peña Nieto’s system, two events took place that sent Liabilities, more commonly known as administration. Now, four years later, shock waves through Mexican soci- “3 of 3 Law” (Ley 3 de 3). More than we can say that the constitutional ety. The first happened on the night of 630,000 signatures were gathered for reform and the laws arising from it are September 26, 2014, when 43 students this initiative, which was drafted and the result of persistent pressure from were forcibly disappeared by members promoted by a group of organizations a society that recognizes the urgency of the police forces of the municipality and academic institutions, with support of taking forceful measures against of Iguala and the state of Guerrero; wit- from the business sector. The hundreds corruption. nesses also attested to the participation of thousands of signatories exerted the At the beginning of 2013, the PRI of the Federal Police and the Army. The political pressure needed to demand proposed a constitutional reform bill second incident was the White House an open parliamentary process in the seeking to create an autonomous body, scandal, which broke on November 9, pending establishment of the legal independent of the executive branch, to 2014. structure. be called the National Anti-Corruption These events were decisive in The constitutional reform creating Commission.2 The bill was passed by turning public opinion in favor of an- the SNA was carried out through the the Senate but was strongly criticized by ti-corruption constitutional reform. enactment of laws, a process that took organizations focused on transparency, The House of Representatives decided place through a plural and participa- accountability, and anti-corruption to introduce a bill to the Plenary that tory congressional mechanism. Experts because of its clear technical and legal incorporated not only the different from civil society not only took on the shortcomings. Later, given various dif- suggestions made by political groups enormous task of drafting and pro-

40 Number 21, Year 9, January 2017 Óscar Arredondo

moting the content of “3 of 3 Law” but that guarantees transparency, the been made and should be celebrated, also joined working groups to create or supreme audit institution, the executive but continuous monitoring is needed amend eight other laws. From April to branch office in charge of internal to ensure that the implementation of June 2016, various researchers and ac- oversight, the Office of the Special Anti- the system allows it to function. Above ademics took part in discussion round- Corruption Prosecutor, and a citizen all, it should be borne in mind that the tables, debates, and forums. We issued participation committee that will need constitutional reform and the second- opinions, and defended and incorpo- to be created in the coming months. ary laws failed to include human rights rated the proposals arising from this The laws enacted were the General on the anti-corruption agenda. That plural and participatory exercise. Law of Administrative Liabilities, the omission should be addressed through Nevertheless, neither the legal ad- Oversight and Accountability Law, the the advocacy work of human rights or- vances nor the resources for their im- Law of the National Anti-Corruption ganizations, where there is still much to plementation are as yet sufficient to System, and the Organic Law of the be done. break from the structures of corruption Federal Court of Administrative Justice. In the meantime, we can affirm that that are so firmly entrenched in the gov- In addition, amendments were made to the system of impunity and corruption ernment. Those Mexicans who are the the General Government Accounting in Mexico, which is so harmful to the most prepared and committed to strug- Law, the Tax Coordination Law, the country’s society and institutions, gle toward this end must be recruited. It Organic Law of the Attorney General’s is threatened by the conscious and is essential to focus on mechanisms for Office, the Federal Code of Criminal dedicated participation of its citizens. n the public selection and appointment of Procedure, and the Organic Law of the the people who will manage the SNA. Federal Public Administration. NOTES Individual merit must be prioritized Much work remains to be done 1 Transparency International, 2014 Corruption over political quotas and relationships. within the SNA. There is a legislative Perceptions Index, http://www.transparency.org/ Professional capacity, honesty, and agenda that includes a number of other cpi2014/results. commitment must be the forces driving laws that need to be strengthened. Steps 2 On December 12, 2012, the Senate passed the the paradigm shift that we hope for. must be taken to create effective checks constitutional reform bills that would create the National Anti-Corruption Commission, but they In short, the SNA was created as a and controls that discourage corruption failed to pass in the House of Representatives. coordinating body for the authorities through the participation of society and involved: the judiciary, the agency institutions. Significant progress has

The process for the selection of Supreme Court justices in El Salvador El proceso de selección de magistrados de la Corte Suprema de El Salvador: uilding on previous reports on this subject, in 2016 the Due Process of Law Recomendaciones para Foundation published The Process for the Selection of Supreme Court una reforma necesaria BJustices in El Salvador: Recommendations for Necessary Reform (in Spanish). With this contribution, DPLF seeks to promote greater reflection on urgently needed changes to the mechanism for the selection of Supreme Court justices in El Salvador, with the objective of bringing it into line with international standards on transparency, openness, and citizen participation.

Number 21, Year 9, January 2017 41 Energy reform in Mexico: Human rights setbacks Aroa de la Fuente Researcher at FUNDAR, Centro de Análisis e Investigación (FUNDAR Center for Analysis and Research), Mexico City, and coordinator of the Latin American Network on Extractive Industries (RLIE)

t has been three years since the any other activity undertaken in the projects in shallow waters of the Gulf of constitutional reform on energy territories and allows the State to force Mexico, the Ministry of Energy stated was enacted in Mexico in December landowners, such as indigenous and that it was not necessary to perform I2013, supplemented by the amendment peasant farming communities, to rent social impact studies because the of its secondary laws in 2014. Alarmed or sell their land to corporations—even projects were located in the ocean.3 This by the implications of this reform, for such harmful projects as fracking. position, of course, is indefensible and numerous social actors have raised their This not only contravenes the State’s ignores the adverse effects that coastal voices to condemn it, pointing to the human rights obligations but also populations have been experiencing for likely repercussions for human rights. entails legislating in favor of private years as a result of this activity. Among other actions, and in view interests while attempting to disguise it These realities demonstrate that the of the Mexican State’s narrow-minded as a matter of public interest. authorities responsible for the energy refusal to acknowledge this infringe- The government has already taken sector lack commitment to the rights ment, various organizations took part in a number of steps to implement the of the communities that are affected by a March 2015 hearing before the Inter- reform. In August 2014, it granted oil the reform. They also confirm that the American Commission on Human and gas exploration and extraction intent of the reform is to promote the Rights entitled “Energy Reform and concessions to Petróleos Mexicanos activity of the oil and gas companies Economic, Social, and Cultural Rights (Pemex) in different states of the rather than the public interest or social in Mexico.”1 The holding of this hear- country. These regions are inhabited welfare. Our actions, as members of ing signaled an acknowledgement that by indigenous and peasant farming civil society, are crucial to exposing and the legislative changes do indeed have populations; however, there was no prior limiting these practices. n consequences for human rights, and it consultation, nor were the appropriate allowed those speaking out on this issue social impact assessments conducted, NOTES to be heard. even though these measures are 1 “Reforma energética y derechos económicos, so- As discussed in the publication El requirements under both international ciales y culturales en México,” available in Spanish sector de hidrocarburos en la Reforma law and the recently enacted Oil and at https://www.youtube.com/watch?v=t7e_b29L- Energética: Retrocesos y perspectivas Gas Law. c6o. (The Oil and Gas Sector in Energy We also have no knowledge of these 2 A. de la Fuente, J. C. Guerrero, E. del Pozo, and O. Arredondo, El sector de hidrocarburos en la Refor- Reform: Setbacks and Perspectives),2 procedures being carried out in the ma Energética: Retrocesos y perspectivas (Mexico one of the main issues identified was that initial competitive bidding processes City: Fundar, 2016), http://fundar.org.mx/el-sec- tor-hidrocarburos-en-la-reforma-energetica-re- at the same time the petroleum industry whereby contracts were awarded to trocesos-y-perspectivas/ was privatized, it was declared to be “of private companies in 30 areas around 3 Reply of the Ministry to request for information public utility.” This gives it priority over the country. In fact, in the case of the no. 0001800050015, filed by CartoCrítica in 2015.

42 Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION 20 Anniversary 1997-2017

Highly vulnerable groups Forms of violence against the press in Mexico: Payoffs, bullets, and criminalization

Leopoldo Maldonado Protection and Defense Officer at ARTICLE 19, Mexico and Central America Office

uring the past decade, violence against the press in Mexico has continued in an upward Dspiral seemingly without end. In the framework of the so-called “war against drug trafficking,” which has caused hundreds of thousands of deaths and at least 26,000 disappearances, violence against the press appears to be viewed more as collateral damage than as a specific issue warranting profound analysis. Such analysis is urgently needed. However, focusing on a single type of violence, that is, political/physical violence, with a one-dimensional cause that is the war on drugs, would deprive us of a deeper and all-encompassing reflection. In this article we set forth some additional lines of analysis that also take account of economic violence and symbolic violence resulting from to focus on two: the discretionary allo- print, is today manifested in the opaque the power struggles within interrelated cation of government advertising and and arbitrary provision of money as a fields, struggles that are conducive the instability of employment for jour- reward or punishment for a given edito- to most serious violations of human nalists. The former can be considered an rial line. The federal government spent rights and the rights of journalists. external cause, while the latter is endog- 1.4 billion pesos (US$700 million) on Accordingly, we will provide a brief enous to the media. government advertising during the overview of the empirical situations in Government advertising in Mexico 2012–14 period.1 In spite of a consti- the different fields—political, economic, has been an efficient mechanism of sub- tutional mandate ordering legislation and symbolic—that give rise to these tle censorship. There has historically on the issue since February 2014,2 any different types of violence. been a perverse relationship between attempt at regulation has been imme- media companies and governments that diately halted by the media companies Payoffs: economic violence confers benefits on both. Government themselves.3 There are many sources of economic vi- influence, previously exercised through Nevertheless, the millions spent olence against the press, but it is helpful a State monopoly on the sale of news- by public entities on government ad-

44 Number 21, Year 9, January 2017 Leopoldo Maldonado

vertising do not result in improved working conditions for journalists. The case of Gregorio Jiménez, murdered in For the year 2015, ARTICLE 19 documented 397 assaults February 2014 in the state of Veracruz, on journalists. During the first quarter of 2016, there revealed one of the greatest tragedies of were 218 reported assaults Mexican journalism: the fact that many practice the profession in poverty, with- out the most basic employment benefits or employer support and protection. The slain journalist was paid 25 pesos country as “one of the most dangerous plicity or direct involvement by public per article—a little more than one US countries in the world for journalists, servants as perpetrators in attacks on dollar. After his death, Liberal del Sur, excluding countries that are at war.”5 journalists. This can be inferred from one of the newspapers for which he had Of course, this violence is sup- the stubbornly high percentage of at- been working, denied having any em- ported by official structures that guar- tacks on the press that are committed ployment relationship with Gregorio. antee that it will be met with impunity. by agents of the State. This is reflected in a failed institutional In addition, the federal Protection Bullets: Political or physical response. In 2006, the Office of the Mechanism for Human Rights De- violence Special Prosecutor for Crimes against fenders and Journalists was created in We cannot deny that physical violence Journalists was established at the fed- 2012, following the Colombian model. and political violence are intimately eral level, and in 2010 it became the Once again, an initiative promoted by connected, as the country’s power Office of the Special Prosecutor for civil society organizations in partner- structures—formal and informal, legal Crimes against Freedom of Expression ship with certain government actors and illegal—require certain conditions (FEADLE). According to the FEADLE’s resulted in a legal framework whose of silencing to carry out their political internal data, 798 preliminary investi- implementation was mismanaged and and economic plans. Physical violence gations were opened between July 2010 left enormous gaps. The mechanism goes beyond the pathological behaviors and August 2016, resulting in 101 cases is marred by shortcomings in the pro- of individuals or groups: it involves a being brought before a judge6 (12.65 cedures designed to ensure rapid re- struggle that plays out in specific places percent), with just two convictions sponses and effective measures for and bodies, through which the different (0.25 percent). The inability of the State persons who request protection. More powers-that-be attempt to subjugate, to eradicate impunity is clear—there broadly, it is based on a reactive ap- intimidate, and annihilate in order to was no conviction in 98 percent of cases proach that lacks inter-institutional reinforce their power and secure their overall —but the impunity in cases of coordination between the national om- control. crimes committed against journalists is budsperson and the FEADLE—which For the year 2015, ARTICLE 19 even worse: as high as 99.75 percent.7 means that violence against the press documented 397 assaults on journal- These figures reveal the total inef- persists. ists. During the first quarter of 2016, fectiveness of the FEADLE, which rep- In short, in spite of a robust there were 218 reported assaults. By licates and worsens the shortcomings legal framework, the government’s the end of October 2016, 10 murders of the justice administration apparatus. responses remain fragmented and lack had been documented, which is equal This is true despite the constitutional a comprehensive perspective that would to one death every 26 days. From 2003 and legal framework that, since 2013, encompass everything from prevention to the present, 23 journalists have re- has allowed the federal investigative au- to the pursuit of justice, truth, and portedly disappeared. Contrary to the thority to take over the investigation of reparation. This absence of government official narrative, the data show that cases from local jurisdictions. In our ex- coordination—whether intentional or over the last seven years nearly a ma- perience, the FEADLE in practice takes not—is an additional factor in the jority of the attacks (49.7 percent) have a discretionary approach to exercising victimization of journalists, and it been committed by State agents. This its authority to take over investigations, intensifies the prevailing mistrust chilling fact confirms one of the most based on politics and pragmatism. In between citizens and the government. compelling observations of the Inter- making this calculation, it most likely Ultimately, the current state of affairs American Commission on Human considers the potential effects on local serves the interests of various actors, Rights (IACHR), which categorizes our actors of an eventual revelation of com- both legal and illegal. Above all, it

Number 21, Year 9, January 2017 45 Forms of violence against the press in Mexico: Payoffs, bullets, and criminalization

thus requires us to take a multifactorial perspective while still keeping in mind The facile justification of the most atrocious crimes that there are common elements in against journalists allows the State to take no action, the widespread violence. The attacks with impunity as the end result against the press have specific historical dynamics that lead to particular political, sociocultural, and economic relationships, which in turn give rise serves to silence the press as it attempts which defendants and victims alike are to the violence inherent in each area of to expose government corruption and criminalized and reviled. Reflecting dispute. Perhaps by better explaining the collusive relationships between deep classist, racist, and sexist bias, the the types of violence we can create the n criminal networks and public servants. individuals being judged (victims and social will to eradicate them. defendants) are cast as the creators of Criminalization: Symbolic their own fate: wrong friends, wrong NOTES violence time, wrong place. 1 R. Cabrera, “Sin precedente, gasto de publicidad According to the French sociologist This narrative is widely applied to oficial de Peña Nieto,” Aristegui Noticias, Au- crimes against journalists, which may be gust 26, 2015, http://aristeguinoticias.com/2608/ Pierre Bourdieu, in a symbolic conflict mexico/sin-precedente-gasto-de-publicidad-ofi- the objective is to impose the legiti- publicly attributed to organized crime, cial-de-pena-nieto/. mate vision of the social world, that is, bad journalistic practices, or even 2 The political and electoral reform of February 2014 romantic relationships with criminals established a deadline for the federal Congress to to arrogate the power to construct the enact a secondary law establishing the parameters world. Of course, in this struggle over (in the case of female journalists). The of Article 134(8) of the Mexican Constitution. That construction of the meaning of reality, facile justification of the most atrocious deadline expired on April 30, 2014. crimes against journalists allows the 3 Fundar, Centro de Análisis e Investigación, “Baja resources are not distributed equitably, California se opone a la regulación en publicidad and thus hegemony (consensus) is con- State to take no action, with impunity oficial, promueve opacidad en gasto público,” structed around certain social practices. as the end result. In this way, the spiral June 22, 2015, http://fundar.org.mx/baja-califor- nia-se-opone-a-regulacion-de-publicidad-ofi- The media play a leading role in of violence becomes unstoppable, and cial-promueve-opacidad-en-gasto-publico/. the construction of meaning, which the idea that “the press eats its own” 4 See the following three reports from ARTICLE 19: becomes real. Segundo Informe Trimestral 2016: Un periodista is disguised as common sense. In this asesinado cada 22 días (August 4, 2016), http:// way, they become a normalizing power. articulo19.org/en-mexico-se-asesina-a-un- Conclusion periodista-cada-26-dias/; M.I.E.D.O: Informe While the media’s construction of rep- 2015 sobre violencia contra la prensa (March 18, resentation across society is beyond the The dilemma facing the press in Mexico 2016), http://articulo19.org/m-i-e-d-o-informe- 2015-sobre-violencia-contra-la-prensa/; La scope of this article, it is important to can be summed up using the crimi- desaparición y desaparición forzada de quienes underscore the role they play in the rep- nal slang “payoffs or bullets” (plata o ejercen la libertad de expresión en México (February 2016), http://articulo19.org/mexico-el- resentation of violence and its causes. plomo). To this we can add the aspect pais-con-mas-periodistas-desaparecidos-23-caso- As part of a complex political and of criminalization as a justification and en-doce-anos/. economic arrangement between the explanation for the attacks. In this con- 5 IACHR, The Human Rights Situation in Mexico. OEA/Ser.L/V/II. Doc. 44/15, December 31, 2015. large media organizations and differ- text, journalists in Mexico are caught 6 This consists of sending the preliminary ent levels of government, the violence in the crossfire between various forces: investigation to the criminal court judge for perpetrated by criminal groups is ex- apathetic media entrepreneurs, ultravi- purposes of initiating the indictment process, as well as the admission and examination of plained as social pathology, while the olent criminal groups, and State security evidence. violence of the State is uncritically cel- forces, all against a backdrop of stigma- 7 See statistical information from FEADLE, August ebrated and glorified. tizing news production and impunity. 2016, at http://www.gob.mx/pgr/acciones-y- programas/fiscalia-especial-para-la-atencion- In general, police news tends An understanding of the violence de-delitos-cometidos-contra-la-libertad-de- to reflect a simplistic perspective in in Mexico after ten years of war on crime expresion-18894.

46 Number 21, Year 9, January 2017 Impunity and grave human rights violations in Mexico

DPLF files Amicus Curiae briefs in cases pending before Mexican courts on the right to free, prior, and informed consultation

Fuente: losangelespress.org Fuente:

n late 2015 and during 2016, together with other human rights A third amicus curiae brief was filed in November 2016 with organizations and academic institutions, the Due Process of Law the First Court of the Twenty-First Circuit of the State of Guerrero, IFoundation (DPLF) filed several amicus curiae briefs with Mexican in the adjudication of a writ of amparo filed by the Me’phaa courts in cases concerning the right to free, prior, and informed con- community of San Miguel del Progreso. The amparo challenges sultation of indigenous peoples.1 the issuance of Notice of Abandoned Mining Claim 02/2015 by In October 2015, an amicus curiae brief was filed with the the Mexican Ministry of the Economy, allowing private individuals to Supreme Court of Mexico on behalf of Mayan communities af- obtain licensing concessions for natural resources exploration and fected by the release of genetically modified (GMO) soy in exploitation in ancestral territories of the indigenous community of their territories. The brief sought to contribute to the Supreme San Miguel del Progreso. Court’s decision on a number of amparo actions—petitions for a con- The briefs were filed in these three cases to identify the stitutional remedy—challenging a permit granted to the transnational international human rights law and comparative constitutional corporation Monsanto. The permit allows the company to plant GMO law standards on the applicable right to free, prior, and informed soy without first engaging in free and informed consultation with the consultation and consent, as well as standards on the recognition Mayan communities directly affected. of territorial rights of indigenous peoples applicable to the granting In June 2016, another amicus curiae brief was filed with the of concessions for natural resources exploration and exploitation Seventh District Court of the State of Oaxaca in a case related to projects. the implementation of the Eólica del Sur wind energy project The briefs have had favorable outcomes. In particular, in the and its impact on the Zapoteca indigenous people of Juchitán de first of the cases mentioned above, the Supreme Court suspended Zaragoza. That case alleged a lack of proper consultation prior to the planting of GMO soy in Mayan communities in the states of the authorization of the wind project, which directly affects this Yucatán and Campeche until free, prior, and informed consultation is indigenous community. conducted with those communities.

1 To access these documents see: http://dplf.org/es/actividades

Number 21, Year 9, January 2017 47 Progress and challenges in access to justice for migrant populations

Ana Lorena Delgadillo Director of Fundación para la Justicia y el Estado Democrático de Derecho (FJEDD, Foundation for Justice and Rule of Law)

he Central America–Mexico–United States migration route is known as one of the world’s most dangerous. It is not known exactly how many migrants have disappeared along the way, but there are hundreds of relatives who have been searching for their loved ones for years. As a result, relatives of disappeared migrants have organized committees to Tpress, from their countries of origin, for the search for their family members. These committees have pioneered the systematic documentation of cases and are the most important and closest support structure for families in Central America. They have taught the rest of civil society how to establish transnational mechanisms to address this phenomenon.

Insufficiency of national measures as a the exchange of forensic data. The first hurdle was to ensure means to address regional problems that the countries of origin had information on their citi- zens who had disappeared, died, or been murdered in tran- When a Central American family is faced with the sit so they could later share information with morgues (in disappearance of a migrant in Mexico, they are told to the transit or destination country) that held unidentified report the case to the diplomatic institutions of their home remains. The governmental and nongovernmental design country, which refer the case to Mexico through diplomatic of the data banks allows for greater transparency and inclu- channels. The matter is then referred to the consul of the sion, since the family groups are involved in their admin- migrant’s country in Mexico. In the experience of the istration and monitoring and serve as the best oversight Foundation for Justice and Rule of Law, these cases are mechanism. At this time, there are data banks in Honduras, handled exclusively through diplomatic channels, often El Salvador, and the Mexican states of Chiapas and Oaxaca, without involving the criminal authorities that have as well as a detailed documentation effort in Guatemala. jurisdiction to investigate in Mexico. This leaves these The local organization plan allows for a degree of order cases in a state of uncertainty and impunity. The process and control over the data that will facilitate its availability fails to provide an effective response for families who, when broader national or regional information sharing is located in another country and facing substantial financial needed. constraints, cannot easily file a complaint in Mexico. The countries involved have not organized effectively The Forensic Commission to identify remains from to meet the needs of the families. Some, like Guatemala, three massacres involving migrant populations in have opened investigations in their local Prosecutor’s Mexico Office, which is a step in the right direction. However, when As part of an effort to facilitate mass exchanges of foren- they request that proceedings be conducted in Mexico, sic information between various countries, the Forensic they must deal with diplomatic and criminal cooperation Commission was created in 2013 within the Office of the agreements that are slow and bureaucratic, with no Attorney General of the Republic (PGR) of Mexico. Its task guarantee that the information will reach the country that was to identify remains located from the massacres of 72 should be conducting the necessary proceedings. Given migrants in Mexico1 in 2010, 193 sets of remains found in this situation, civil society has been promoting actions that mass graves in 2011, and 49 torsos located in 2012. Experts can provide a transnational response to a phenomenon from EAAF and the PGR work jointly on this Commission. that by nature goes beyond any one country’s borders. The agreement signed with 11 regional organizations has led to progress on a diverse coordination effort among gov- Transnational measures undertaken ernmental and nongovernmental organizations (NGOs). The challenges are daunting, given an institutional culture Forensic data bank in which processes do not always flow smoothly. But there The forensic data banks started by the Argentine Forensic are also lessons learned and best practices that make it pos- Anthropology Team (EAAF) promoted flexible and partic- sible to move forward with a more regional focus and with ipatory ways of resolving a transnational problem through the trust of the families.

48 Number 21, Year 9, January 2017 The transnational mechanism for access to justice that it not be the only focus of protection, especially given Because most of the crimes are Artículo/actividadescommitted in Mexico the reality de thatLeonor migrants attempting to reach the United and the families or victims who can report them are in States continue to be subjected to disappearance, kidnap- other countries, civil society organizations suggested that ping, sexual violence, murder, and extrajudicial execution Mexico’s PGR should adopt a mechanism that uses those in Mexico. There are still no comprehensive protection and countries’ embassies as valid legal forums for reporting prevention plans in Mexico for this population; nor have crimes that occur in Mexico and for carrying out moni- the countries of Central America joined forces to demand toring, support, and reparation actions. Toward this end, that Mexico implement better measures for the prevention the Mexican Foreign Search and Investigation Support and investigation of crimes. Mechanism was established in December 2014.2 Civil Effective measures are needed to protect migrants society also proposed the need for a department to cen- in transit, and the transnational mechanism must be tralize reports of crimes committed against the migrant strengthened. Mexican embassies are not prepared to re- population so the issue can be studied to identify patterns ceive complaints of crimes committed in Mexico, and they that go beyond individual cases. Although it is a first step, lack both the staff and the protocols to ensure access to >the Foreign Support Mechanism must be able to function justice, searches, punishment, and the reparation of harm. regularly, with qualified staff in the countries of origin and Countries should review their agreements for cooper- destination to assist victims who wish to file a complaint, ation in criminal matters, since the existing agreements— rather than depending on Mexico-based staff to go to the at least those between Mexico and Guatemala, El Salvador, embassies to receive reports. and Honduras—result in slow, bureaucratic proceedings, Involvement of the Inter-American Human Rights with little involvement by families and organizations. System and United Nations mechanisms The Inter-American and universal human rights sys- tems were forceful in making their recommendations to The Office of the Rapporteur on the Rights of Migrants Mexico. Nevertheless, we still do not have precautionary of the Inter-American Commission on Human Rights measures that include several countries with different obli- (IACHR),3 as well as mechanisms of the United Nations, gations, nor has it been possible to hold hearings with var- have highlighted the need for countries to effectively docu- ious countries to address issues of protection and access to ment cases of disappeared migrants and to work together to justice. Reports by the rapporteurs of the Inter-American identify remains and ensure access to justice. The hearings System and the United Nations, when they discuss migra- held before the IACHR helped provide civil society and vic- tion, disappearance, or extrajudicial execution, continue to tims with another forum for dialogue, as well as for report- have a national rather than a regional focus. ing violations and reaching consensus. International shifts in migration policy force us to see Pending issues for effective access to justice the defense of individual rights through a different lens. Hopefully, the challenges we face will be resolved with cre- The work of the family groups is always at the forefront, and ativity and responsibility, based on the defense of persons their participation in any justice mechanism is essential. rather than of institutions or countries. n Existing efforts that involve victims, NGOs, and govern- ments should be strengthened, extended, and replicated, as in the case of the Forensic Commission. NOTES A transnational mechanism is only possible if efforts 1 The declaration is at http://www.dof.gob.mx/nota_detalle.php?codi- in the responsible countries are consistent. There can be go=5312887&fecha=04/09/2013. no international exchange of forensic data if the countries 2 The declaration is at http://www.dof.gob.mx/nota_detalle.php?codi- whose migrants have disappeared do not have organized, go=5420681&fecha=18/12/2015. updated, and accessible local information, or if the coun- 3 IACHR, Human Rights of Migrants and Other Persons in the Con- tries in possession of human remains—like Guatemala, text of Human Mobility in Mexico, OEA/Ser. L/V/II, Doc. 48/13, December 30, 2013, recommendations 27 and 36–39. Although this Mexico, or the United States—lack a database on those re- report is about Mexico, it makes recommendations to the countries of mains that can be shared. the region that we consider important. In view of the challenges presented by a hardening 4 See, for example, United Nations Human Rights Council, Report of immigration policy in the United States, Mexico and of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Central America must reconsider their strategies for the Executions, Christof Heyns, Addendum: Mission to Mexico, A/ protection of migrants, especially in the face of a potential HRC/26/36/Add.1, April 28, 2014, paras. 110 and 113; and United Na- tions Committee on Enforced Disappearances, Concluding Observa- increase in the deportation of undocumented migrants. tions on the Report Submitted by Mexico under Article 29, Paragraph While it is important to address this issue, we should insist 1, of the Convention, CED/C/MEX/CO/1, March 5, 2015, para. 24.

49 Impunity and grave human rights violations in Mexico

DPLF and Misereor coordinate meeting with organizations from Central America, Mexico, and the Dominican Republic on business and human rights

Workshop participants during one of the sessions

rom November 7 to 10, 2016, a workshop was held in Mexico their strategies to defend territory against human rights violations City on the obligations of corporations in the context committed by transnational corporations. Specific legal defense Fof large-scale energy, infrastructure, and natural cases and community-strengthening strategies in each of the resources extraction projects in Latin America. The workshop five countries were presented during the workshop. Participants was open to members of organizations from Guatemala, El Salvador, discussed those strategies and the results obtained, noting Honduras, the Dominican Republic, and Mexico who had participated differences and similarities between the various experiences. Most for the preceding six months in an online course offered by Misereor importantly, the workshop created a forum for dialogue about the (the German Catholic Bishops’ Organization for Development) with potential impact of an appropriate strategy for denouncing violations the support of DPLF. committed by transnational corporations. It also helped identify Unlike prior versions of the course and the workshop, future steps that the participants can take individually in their own priority this time was given to having course participants share their countries and as a network in partnership with organizations from experiences, successful cases, obstacles, and lessons learned from other countries.

50 Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION 20 Anniversary 1997-2017

From the states Nuevo León Chihuahua Coahuila Jalisco Yucatán

Number 21, Year 9, January 2017 51 Nuevo León Public opinion rules, but does not [should not] govern1

Sister Consuelo Morales Founder of Ciudadanos en Apoyo a los Derechos Humanos (CADHAC, Citizens in Support of Human Rights) Ana Claudia Martínez Former Executive Director of CADHAC

exico’s New Criminal Justice criminal defendants. Finally, we provide reduced (concentration); and that the System (Nuevo Sistema de our reflection on the matter. procedural stages follow one another as Justicia Penal, NSJP) has promptly as possible (continuity).5 Mbeen subject to debate from the enact- The NSJP and the concept of Although there are other provisions ment of the reforms in 2008 to its cur- public opinion as well, all of them seek substantive and rent operation throughout the country. In 2008, the Mexican legislature, known procedural changes to the rules of the The debate has addressed nearly all as- as the Congress of the Union, passed game with a view to ensuring uncondi- pects of the reform, including the rights several amendments to the Federal tional respect for the human rights of of victims, the work of supervisory Constitution aimed at reforming the the individuals involved in the judicial judges, the recording of detentions, and criminal justice system. The purpose of process. the most basic human rights of criminal the changes was to respond to society’s Touching briefly on the concept of defendants. demand for a fair criminal justice system public opinion: According to the Royal This article considers the last of that provides legal tools to defendants, Spanish Academy, an opinion is the these issues, specifically in the state of to the Ministerio Público, and to victims judgment or assessment of something Nuevo León. For some months now to enable them to assert their respective or someone. According to Kimball the highest-ranking authorities in the arguments, so that judicial processes Young,6 an opinion goes beyond a state have encouraged public opinion can be conducted in a neutral arena.3 mere notion or impression but is less to challenge the legitimacy of the rights There was—and still is—a feeling that solid than positive knowledge based on of criminal defendants, citing supposed our system was deficient and failed to adequate evidence. What, then, do we shortcomings in the NSJP that result guarantee the rights of either defendants mean by public opinion? in their release from custody.2 In our or victims. There are many definitions, but in opinion, this is a faulty approach to the The changes required, among general we can say that public opinion is problem of impunity. When impunity other things, that there be an organic produced when individual processes of is attributed to human rights, it makes separation between the judge, the opinion formation, expressed publicly, respect for human rights look like an accuser, and the defender (accusatorial give rise to collective processes of public obstacle to justice when in fact it should system); that the main proceedings of reflection, which in turn may end up be viewed as the only way forward. the case be conducted verbally (orality); defining the popular will.7 In some cases This article aims to shed light on that the judge be the one to receive the this may later be expressed through the the situation in Nuevo León and to show evidence and hear the arguments that work of the legislative body.8 how the statements of local authorities provide the basis for his or her opinion The debate in Nuevo León continue to mislead public opinion. (immediacy); that arguments and We first provide brief background on evidence be presented by the parties In February 2016 two articles were pub- the reforms enacted by the NSJP and under equal conditions and assessed by lished that set off a media debate on the also explain what we mean by public an impartial judge (contradiction); that actions of the Superior Court of Justice opinion. We then address the debate proceedings, in general,4 be open to the of Nuevo León. The Court’s decisions that has taken place in Nuevo León public, which lends greater transparency were attacked, and the Court attempted since the beginning of 2016 in relation to criminal proceedings (openness); to justify them. The articles discussed to the NSJP and the human rights of that criminal case processing times be acquittals handed down by judges with

52 Number 21, Year 9, January 2017 Sister Consuelo Morales and Ana Claudia Martínez

respect to persons being prosecuted for serious crimes such as murder, kidnap- This is a faulty approach to the problem of impunity. ping, and rape. The headlines of the arti- When impunity is attributed to human rights, it makes cles were “Builder’s 4 Killers Acquitted” and “They Kidnap, They Rape, They respect for human rights look like an Are Convicted and Acquitted,” both obstacle to justice published in El Norte, the state’s most widely circulated newspaper.9 The ac- quittals were based on due process vio- lations concerning, among other issues, 17 prolonged unwarranted detentions, the legal criteria applied most frequently.” custody that have been called into admission of evidence obtained during Based on this document, the municipal question were based on violations of preliminary detention, and the taking of authorities of the metropolitan area of the defendants’ human rights, which statements from defendants without the Monterrey and the executive branch of means that the human rights of those presence of their defense attorneys. the state of Nuevo León indicated that persons are in fact being protected. In There were many reactions to these they would hold meetings in order to other words, if a person is deprived of articles, but they varied little. Some or- reach “agreements” on the application of liberty without sufficient evidence, he 18 ganizations10 and civil servants from the NSJP. Nevertheless, in spite of the or she will be released; or if the evidence the executive and legislative branches meetings, the stream of public commen- used to prove the defendant’s guilt was 19 spoke out against the decisions, assert- tary—most of it negative—continued. illegally obtained, it will be thrown out, ing that it should not have been possi- resulting in release. And this is exactly Final reflection ble for a judge to release criminals from what is happening in Nuevo León. custody, whether or not this was called There is no doubt that Mexico has a Human rights are not technicalities. for by law.11 They thought it was worse serious impunity problem. Nevertheless, Human rights are the concrete still that the chief justice of the Superior we believe that prevailing public opinion manifestation of individual dignity, Court appeared publicly to explain the about the rights of criminal defendants, and this is what makes all of us equal. legal basis for the decisions,12 as this was considering their rights to be obstacles to It is therefore impossible to maintain seen to signal a lack of commitment to justice, and about the NSJP, considering that the human rights of victims the matter.13 The chief justice was urged it to favor only criminals, is erroneous. rank higher than the human rights of to make a decision: he was either on It is even more so if these two factors are criminal defendants. To do so would the side of the victims or on the side of held to be triggers for impunity. mean falling prey to the same ideologies criminals.14 Critics also declared that This opinion arises from a desperate that led humanity to justify slavery at a the appropriate reforms would be made citizenry that wants to know why crime particular time in history, despite the to the NSJP so that “these kinds of cases rates in Mexico have not gone down, passage of time and the evolution of the will not happen,”15 and that human and why the likelihood that reporting human thought process. rights were technicalities that could not a crime will result in an effective Contrary to what state and take priority over the idea of justice or conviction is nearly zero. The situation municipal executive branch authorities, the rights of the victims. There were also appears even worse if we look at the as well as some legislators, have been statements from alleged sources within number of victims who actually obtain asserting, the Superior Court has met the judiciary who maintained that with redress for the harm. Nevertheless, one of the objectives behind the reform the criteria of legality being applied, the these circumstances do not justify the of the criminal justice system, and in prisons of Nuevo León would end up public’s opinion on the matter, much so doing has protected the most basic “empty.” 16 less the statements by authorities that human rights of individuals subject to In response to these criticisms, the encourage these views. criminal prosecution. Superior Court of Justice published a It would appear that one of the most Although public opinion points study examining 624 court judgments, important objectives that motivated the in another direction, it should not be orders, and decisions. The report ex- NSJP reform, unconditional respect for allowed to determine the actions of the plained the trends in releases from cus- the human rights of persons involved authorities of any branch of government. tody and the reasons for ordering them, in judicial cases, has been forgotten. There is a constitutional mandate to with the objective of identifying “the We say this because the releases from promote human rights, which these

Number 21, Year 9, January 2017 53 Nuevo León Public opinion rules, but does not [should not] govern

10 See, e.g., D. Flores, Y. Chio, and P. Martínez, “Hay injusticia para víctimas,” El Norte, February 7, 2016. Human rights are not technicalities. Human rights are the 11 See, e.g., “Cuestiona Gobernador a Juez: ‘Es in- creíble, no tiene corazón,’” El Norte, February 7, concrete manifestation of individual dignity… 2016. 12 G. Talavera, “Atribuyen liberaciones a malas prác- ticas,” El Norte, February 8, 2016. 13 R. Cantú, “Declaran ‘non grato’ a presidente de TSJ,” El Norte, February 10, 2016. 14 I. Hernández and J. Tapia, “Alcaldes exigen a juec- authorities have not fulfilled; rather, es frenar liberación de delincuentes,” El Horizonte, NOTES March 11, 2016, 11. Even some mayors in the met- they have fueled a campaign to discredit 1 See J. Habermas, Historia y crítica de la opinión ropolitan area of Monterrey, Nuevo León, levied persons who have been deprived of pública: La transformación estructural de la insults at the chief justice of the Superior Court. See, e.g., C. Rojas, “Estalla Mauricio Fernández their liberty, the judges who have made vida pública (Barcelona: Gustavo Gili, 1990), p. 263. The English edition of this work is The contra el Poder Judicial en NL,” 7Info, February decisions seeking to protect human Structural Transformation of the Public Sphere 25, 2016, p. 25, http://www.info7.mx/seccion/es- talla-mauricio-fernandez-contra-el-poder-judi- rights, and the individuals they have (Cambridge, UK: Polity Press, 1989). Both editions are translations of the original work published cial-en-nl/1565298/. called “human rights fanatics.” in German in 1962 as Strukturwandel der 15 See, e.g., M. García, “Analizarán ley para impedir So long as these authorities do öffentlichkeit. liberaciones,” El Norte, February 10, 2016. 2 not publicly change their stance and See, e.g., C. Jiménez, “Por un tecnicismo sueltan 16 L. Rivera and G. Talavera, “Penales se van a vaciar,” a asesino de la hija de Nelson Vargas,” La Razón, El Norte, February 8, 2016. openly defend the human rights of all April 19, 2016, p. 19; V. Fuentes and A. Baranda, of the state’s inhabitants, the general “Liberan a criminales debido a tecnicismos,” Re- 17 Judiciary of the State of Nuevo León, Análisis de forma, April 20, 2016; E. Ochoa, “Nuevo sistema sentencias y detenciones en el sistema de justicia public will continue to resist the proper de Justicia penal protege a otra delincuente,” El penal del estado de Nuevo León: Identificación de implementation of the NSJP. Worse Horizonte, April 19, 2016. los criterios de mayor incidencia (Monterrey, 2016), 3 yet, the NSJP will encounter resistance See the statement of reasons for the amendments to https://www.pjenl.gob.mx/pdf/Analisis-de-sen- the Federal Constitution on this matter. Ministry tencias-y-detenciones-en-el-sistema_de-justi- from legal practitioners working in the of Parliamentary Services, Reforma constitucional cia-penal-del-estado-de-Nuevo-Leon.pdf. new system, particularly the staff of the en materia de justicia penal y seguridad pública 18 See, e.g., P. Martínez, A. Dávila, and M. Córdo- (Mexico City, 2008), http://www.diputados.gob. va, “Ahora buscan con TSJ evitar liberaciones,” State Office of the Public Prosecutor mx/sedia/biblio/archivo/SAD-07-08.pdf. El Norte, April 2, 2016; P. Martínez and D. Reyes, and other civil servants responsible 4 There are exceptions. “Revisarán con Ediles protocolos de captura,” El for enforcing the public safety laws. 5 S. García, La reforma penal constitucional (Mexi- Norte, April 6, 2016. They appear not to understand that co: Porrúa, 2010), pp. 109–26. 19 See, e.g., F. Ares, “Colocará San Pedro cámaras a the human rights violations they 6 K. Young, La opinión pública y la propaganda policías,” El Norte, April 11, 2016; D. Reyes and P. (Mexico: Paidós, 1986), pp. 10–11. Martínez, “Alertan por posible liberación de 2 mil commit will not continue to be an open 7 See J. J. Rousseau, Discurso sobre las ciencias y las reos de Nuevo León,” SDP Noticias, August 3, 2016. secret, as they have until now, but will artes (Buenos Aires: Aguilar, 1980), p. 46. 20 According to the 2015 National Survey on Victim- become the central argument of the 8 In addition, reasoning and prior instruction on ization and Perception of Public Safety, the “hid- the issue or matter about which the opinion is den figure,” that is, the proportion of crimes that state’s criminal litigants whenever these formed is also a recurring element in the definition are unreported or that do not lead to a preliminary atrocities occur. n of public opinion. That is, not just any expression investigation, was 93.7 percent at the national lev- of ideas can become public opinion, as prior el during 2015, while in 2014 it was 92.8 percent, informed reflection is necessary. On this point, see which means that all of these crimes have gone Habermas, Historia y crítica de la opinión pública. unpunished. See Instituto Nacional de Estadística 9 L. A. Rivera, “Absuelven a 4 homicidas de y Geográfica, Encuesta Nacional de Victimización constructor,” El Norte, February 3, 2016; L. A. y Percepción sobre Seguridad Pública (ENVIPE) Rivera, “Plagian, violan, los sentencian y los 2016, Boletín de prensa 399/16, September 27, absuelven,” El Norte, February 10, 2016. 2016, http://www.inegi.org.mx/saladeprensa/bo- letines/2016/especiales/especiales2016_09_04.pdf

54 Number 21, Year 9, January 2017 The Chihuahua Citizens’ Alliance Lucha Castro Human rights defender and founder of the Centro de Derechos Humanos de las Mujeres (CEDEHM, Women’s Human Rights Center)

y country is falling apart. In the state of Chihuahua, a weak link in global capitalism, we Chihuahua is an emblematic case that can pave the way Msurvive in a society made vulnerable, and serve as an example of how to recover the dignity of assaulted by the social, economic, a people by breaking the pact of impunity human safety, and environmental crises caused by neoliberalism and free trade. The maquiladora assembly plant model of industrialization has reduced women The war against drug trafficking and humiliated people. Accordingly, to the status of a disposable workforce. has become a war against the civil- we decided to form the Chihuahua Chihuahua is the land that brought ian population. We have attained the Citizens’ Alliance (Alianza Ciudadana attention to femicide and where, despite highest murder rate in the world, with that visibility, more than two thousand por Chihuahua), an ethical alternative 149 homicides per 100,000 inhabitants women have been murdered since 1993. to assist the new administration of in 2010. The toll—10,000 orphans, It is the number one state in the country Javier Corral and rupture the pact of 230,000 displaced persons, and some for reported rapes, suicides, and teen impunity and political corruption that 100,000 jobs lost— has meant only suf- pregnancies, and fourth in domestic is eating away at the state. fering for women, who have lost their violence. Chihuahua is the most dan- This is an unprecedented commit- husbands, fathers, and sons in a war gerous place to defend human rights: ment to institutions, the rule of law, and that was not directed against them. the state’s five main cities are among the justice. Chihuahua is an emblematic Many households have lost the family’s worst 15 cities to be a woman in Mexico, case that can pave the way and serve as main breadwinner. and 30 percent of the precautionary an example of how to recover the dig- Former governor César Duarte left measures issued by the Inter-American nity of a people by breaking the pact Commission on Human Rights pertain behind a failed, criminal, and bankrupt state, with previously unimaginable of impunity. I made the decision to be to the state of Chihuahua. part of this history and to join the team In my state, women in rural com- levels of corruption, a debt of 55 billion that is investigating the corruption. I munities are forced to live amid armed pesos, and expenditures of 2.7 billion hold onto the hope that, in the words of men, including soldiers, police officers, pesos to control the communications Eduardo Galeano, “many small people, and hit men. Prisoners of terror, they media, compromising future revenue in small places, doing small things can see their sons kidnapped and forced to until 2044. We are in a financial join criminal organizations, and their emergency. Among many other things, change the world.” I make that commit- daughters carried off as spoils of war. there is a shortage of medicines in ment, and with the vision of respect for The Tarahumara indigenous people public hospitals, and police vehicles human rights, I raise my hand to say are massacred for refusing to turn their are left without gasoline. In view of “here I am,” with my personal history as lands over to the narcos, or drugrun- this unprecedented crisis, we human a pledge. Let us move forward together ners. In my state, children play at being rights defenders have vowed to cure to end the corruption that is destroying assassins. the historical wounds of our abused my country. n

Number 21, Year 9, January 2017 55 Model for the participation of relatives of disappeared persons in actions of the government of Coahuila, Mexico Michael Chamberlin Assistant Director of the Diocesano para los Derechos Humanos Fray Juan de Larios (Fray Juan de Larios Diocesan Center for Human Rights), Saltillo, Coahuila

he state of Coahuila, in northern Mexico, borders on Texas in the The Autonomous Working Group (GAT) [is] responsible United States. It is one of the for coming up with proposals for compliance with the Tstates that has been plagued by criminal recommendations of the United Nations Working Group violence and serious human rights abuses within the larger context of the on Enforced or Involuntary Disappearances war on drugs over the past ten years. One of the costs of this cycle of violence that has affected the entire country has outcomes in the first few years. It Code to create the offense of disappear- been the disappearance of persons. was not until 2013 that FUUNDEC ance consistent with the international According to data from the Coahuila signed an agreement with the recently Convention for the Protection of All State Attorney General’s Office, there elected governor, Rubén Moreira, to Persons from Enforced Disappearance; have been 1,790 investigations and establish an Autonomous Working the Law on the Declaration of Absence some 1,830 victims. However, the actual Group (GAT) responsible for coming by Disappearance, which recognizes the numbers are higher if we consider up with proposals for compliance with rights of disappeared persons and their that 93 percent of kidnappings— the recommendations of the United relatives; amendment of the Law of the including those where the victims have Nations Working Group on Enforced Office of the Attorney General to spe- disappeared—go unreported. or Involuntary Disappearances. These cialize the Office of the Deputy Attorney compliance measures, if agreed to, Throughout 2009, families from General for Investigation and create the would be binding on the government. Coahuila and other parts of the country Search Unit; and, recently, the creation The working group is composed of began to come to the Fray Juan de Larios of the Law on the Location, Recovery, Diocesan Center for Human Rights to three representatives, one from civil and Forensic Identification of Persons. seek support in locating their disap- society, one from the Office of the There is undoubtedly much more to peared relatives. With assistance from High Commissioner for Human Rights be done. From the point of view of the the Fray Juan Center, United Forces for in Mexico, and one appointed by the families, the greatest accomplishment Our Disappeared in Coahuila (Fuerzas governor—in this case the director of would be to have their disappeared Unidas por Nuestros Desaparecidos en the School of Law of the University of relatives returned to them and to obtain Coahuila, FUUNDEC) was established Coahuila. on December 19 of that year. Consisting This model of dialogue between truth and justice. Nevertheless, the of 120 families at present, it works to victims and the government has, in achievements thus far are unparalleled pressure the authorities to search for the three years, resulted in a decree creating in Mexico in terms of quantity and disappeared and investigate these cases. the Comprehensive Services Program quality, and we believe that the model Various efforts to engage in dialogue for Relatives of Disappeared Persons can be useful in other places because with the authorities at both levels of (PROFADE); amendments to the state it combines legitimacy, credibility, and government, state and federal, were Constitution to prohibit the disappear- technical and legal knowledge with undertaken, but with no substantive ance of persons, and to the Criminal political will. n

56 Number 21, Year 9, January 2017 Torture inJalisco: Perpetual impunity César Pérez Executive Director of the Centro de Justicia para la Paz y el Desarrollo (CEPAD, Justice Center for Peace and Development)

ithout a doubt, Jalisco is about mariachis, horse- The fact that state agents act with impunity requires manship, and tequila— us to engage in creative impact litigation in order to Wsymbols that identify Mexico to the world. The state is also known for its ma- guarantee and protect the physical and emotional jority Catholic and conservative popu- well-being of victims lation, for its leading role in the Cristero War (1926–29),1 and for being an elec- toral bastion of the right-wing National Action Party (PAN) since the party’s not even applied at the investigative to engage in creative impact litigation founding in 1939. Despite this histor- stage, let alone in the prosecution or in order to guarantee and protect the conviction of any defendant before a ical conservatism, the country’s most physical and emotional well-being court of law. After new anti-torture important urban guerrilla group during of victims and their relatives as long legislation took effect in May 2015, there the so-called Dirty War (1965–84),2 the as conditions do not exist for filing were 1,182 recorded complaints alleging September 23 Communist League, was criminal complaints against the direct serious human rights violations between founded on March 15, 1973, in the city perpetrators and masterminds. n 2000 and May 2016.3 of Guadalajara, the capital of Jalisco. It was leaked to some media out- Throughout the turbulent history lets that in 2015 two municipal police NOTES of Jalisco, one common thread officers had been punished for tortur- 1 continues to this day: the corruption The Cristero War, led by the government of Plutar- ing a young man, resulting in his death. co Elías Calles and the Catholic hierarchy, was one and impunity of state agents. Cases In spite of the state prohibition against of the most terrible civil wars in twentieth-century of torture and forced disappearance Mexico. Perhaps the most complete account of this inflicting torture on detainees, arising bloody episode is the book authored by J. Meyer, intensified during the first decade and from both international obligations La Cristiada: La guerra de los cristeros (Mexico: a half of the twenty-first century, albeit FCE/CLIO, 2007). and the 2011 constitutional reform on 2 for other reasons, no longer as a method “In the 1960s, ’70s, and ’80s in Guadalajara, the human rights, the responsibility of the torture to which both innocent civilians and for combating an insurgency. state by action, omission, and acquies- armed militants were subjected by local and feder- From its entry into force in 1993 cence, which allowed this scourge to al police and by the Mexican Army, and the places until its repeal in April 2015, the State where it was carried out, were an open secret. The remain unpunished in Jalisco, was clear. accounts of survivors leave no doubt that torture Law to Prevent and Punish Torture was This included inaction by the govern- was tolerated and ordered by the highest-ranking never enforced. During this period, ment human rights body, which did authorities of Jalisco and of the country, as verified there was not a single case or record by the poorly engineered Special Prosecutor for little or nothing to prevent, investigate, Social and Political Movements of the Past (FEM- of that law being enforced against punish, and redress the harm to the sur- OSPP) in its historical report.” Centro de Justicia investigating prosecutors or police of viving victims and their families. para la Paz y el Desarrollo, Análisis de la Tortura en Jalisco 2000–2009 (2010), p. 9. the Office of the Public Prosecutor of As nongovernmental human rights 3 The figures were published in CEPAD’sAnálisis Jalisco (FGJ)—formerly the Jalisco State organizations, we face a major challenge de la Tortura en Jalisco 2000–2009 (ibid.) and in Attorney General’s Office (PGJ)—or any in working to change the status quo. the local newspaper El Informador, http://www. informador.com.mx/jalisco/2016/664045/6/jus- other police forces or personnel assigned Meanwhile, the fact that state agents are tifican-tendencia-de-cifras-de-tortura-por-may- to the state penitentiary system. It was able to act with impunity requires us or-difusion.htm

Number 21, Year 9, January 2017 57 Yucatán is more than Cancún David Lovatón Palacios Proffesor at the Universidad Católica del Perú and Consultant to DPLF

he Yucatán Peninsula in Mexico corn, and African palm monoculture. ples and the serious environmental and is world-renowned for its idyl- There have also been recent attempts water pollution caused by monocrops— lic beaches and resorts, includ- to build renewable energy parks (wind whether genetically modified or not—as Ting Cancún and the Mayan Riviera, and solar). well as the renewable energy parks in the where millions of Europeans, North By contrast, the region’s indigenous Yucatán Peninsula. They asked Mexican Americans, Mexicans, Brazilians, and and peasant farming communities prac- authorities at both the federal and state Asians go to relax surrounded by white tice an ancestral and environmentally levels to take prevention and reparation sand, blue sea, cenotes (natural wells), friendly type of agriculture character- measures to ensure that these violations and stunning archeological sites. It is ized by the Mayan milpa (maize field) do not become irreparable. undoubtedly one of the parts of the and the production of organic honey, It was very significant that the world that most resembles paradise. which is highly sought after in interna- IACHR provided this international This is why, at the thirteenth meeting tional markets. Indigenous peoples as opportunity to bring attention to the of the Conference of the Parties (COP well as diverse sectors of civil society, serious human rights problems in the 13) to the Convention on Biological academia, and the regional press are Yucatán Peninsula. Unfortunately, given Diversity, held in Cancún in December therefore legitimately concerned about the human rights tragedy and the crisis 2016, President Enrique Peña Nieto an- water pollution, deforestation, and the of insecurity and organized crime that nounced the creation of the Mexican death of honeybees. They point out that other Mexican states are facing, there Caribbean Biosphere Reserve on the the Mexican State is failing to respect the is an erroneous perception that human coast of eastern Yucatán, which will be- right to free, prior, and informed consul- rights problems are nonexistent in the come the largest protected natural area tation, undertaken in good faith and in a peninsula. Those problems do exist, al- in the country. culturally appropriate manner, to which though they are of a different kind than But the Yucatán Peninsula is not the indigenous communities are entitled. forced disappearances, extrajudicial ex- just Cancún. It is a vast region compris- The government has also disregarded the ecutions, and torture. ing three Mexican states, Campeche, right to prior consultation in the case of As a follow-up to that hearing, Yucatán, and Quintana Roo, with a rich genetically modified soy. the IACHR should cooperate with Indigenous and peasant farming biodiversity and singular geography. the Mexican State, urging it to listen communities do not oppose agricul- It has one of the largest freshwater re- to indigenous and peasant farming tural development or the establishment serves in Mexico and is the ancestral communities and to incorporate of renewable energy parks. They are not home of peninsular Mayan indigenous the alternative development model enemies of development. What they do peoples, including the Ch’ol, Tzeltal, proposed by indigenous peoples, oppose is severe environmental deg- Tzotzil, and others. It was also the site in the exercise of their right to self- radation and the pollution of natural determination, into its public policies of the Caste War of Yucatán, which has resources like water, and they object to for development of the Yucatán yet to be properly included in the offi- not being heard and having their funda- cial history of Mexico. mental rights violated. Peninsula. This model could be based For a long time, the economy of During the 159th regular session on successful industries such as the peninsula was based on the growing of the Inter-American Commission beekeeping or on renewable energy of sisal, a type of agave that supplied a on Human Rights (IACHR) held in parks, but with prior consultation and flourishing rope manufacturing indus- Panama City in December 2016, a group consent of local communities and with try, and on exploitation of the cheap of indigenous and peasant farming a more equitable distribution of the labor of the indigenous population. communities and civil society organi- benefits. In short, it should be a socially Today, the regional economy centers on zations condemned the grave violations and environmentally sustainable tourism and hospitality, as well as soy, of the human rights of indigenous peo- development model. n

58 Number 21, Year 9, January 2017 Public hearing before the IACHR on the human rights situation of the indigenous peoples of the Yucatán Peninsula

Inside-Back-Cover Foto: Antonio Cordoba/CIDH Antonio Foto:

n December 5, 2016, during the 159th session of the In- The Mayan and peasant farming communities in the region al- ter-American Commission on Human Rights in Panama City, lege the violation of various rights as a result of these activities, Oa public hearing was held on the human rights situation including the rights of access to water, to a healthy environment, to of indigenous peoples in Yucatán, Mexico. At this hearing, their ancestral lands, to free, prior, and informed consultation, and Mayan indigenous and peasant farming communities, along to self-determination in their social and economic development. with civil society organizations, condemned before the interna- Similarly, the communities and organizations requested before the tional community the human rights violations being perpetrated in IACHR that Mexican state and federal authorities take the neces- the three states that make up the Yucatán Peninsula: Campeche, sary measures to prevent and redress the violation of their rights. Quintana Roo, and Yucatán. They particularly noted the implemen- This hearing was extremely important for this issue, as it provided tation of public policies that encourage an economic model based an international forum in which to address the serious human rights on soy, corn, and African palm monoculture—in some cases problems of the Yucatán Peninsula, which have been overshadowed using genetically modified crops—and the intensive use of toxic by the human rights crisis and insecurity plaguing other regions of chemicals. the country.

Number 21, Year 9, January 2017 59 From Latin America to Mexico Shared experiences in investigating serious human rights violations and supporting victims

indful of the human rights crisis facing Mexico, and in an effort to help find solutions, the Due Process of Law Foundation Mset out to examine the experiences of various Latin American countries with regard to the impacts of mass human rights violations. Toward this end, DPLF helped organize meetings with members of civil society and independent experts who could share reflections on lessons learned, successes, and ongoing challenges. The first activity was held in 2015, when DPLF invited repre- sentatives from Mexican organizations to learn firsthand about the truth, memory, and justice processes stemming from the legacy of internal armed conflicts and dictatorships in El Salvador, Guatemala, and Peru. Later, during the International Seminar on the Fight against Impunity for Serious Human Rights Violations, Transitional Justice, and Victims’ Rights, held in August 2016, DPLF and the Mexican Commission for the Defense and Promotion with victims), as well as psychosocial and victim support work, de- of Human Rights (CMDPDH) organized a closed meeting with scribed by the participants themselves. members of civil society and experts from across the region. This In the course of these consultations, consensus emerged activity was used to gather experiences from different countries that around several main ideas. First, civil society must foster collective could be useful in the Mexican context, where the commission of power, seeking complementarity in areas where there are common serious crimes is a current topic of discussion. It also served to facil- interests, assuming progress and accomplishments as an initial itate network building. Participants discussed the role of victims and point for the discussion of discrepancies. Second, victims should human rights movements in truth commissions and in the search be recognized as legitimate parties whose needs are at the core for disappeared persons; models and experiences of supporting vic- of any proceeding. It is necessary to foster victims’ autonomy and tims; challenges arising in the investigation and punishment of seri- promote their transformation into protagonists of their own change. ous human rights violations; and transitional justice and pacification Accordingly, support should not be conditioned upon the needs processes in Latin America in general. of a court case, as the victim’s welfare must be paramount. Third, Two months later, in October 2016, DPLF and the Foundation it is necessary to deepen discussions on how to work and build for Justice and Rule of Law (FJEDD) held a second meeting, partnerships with the State and its institutions. Fourth, it is important Experiences in Supporting Victims of Serious Human Rights to include mixed work plans with international experts, national Violations: Mexico and Latin America, this time with the par- experts, and civil society, always thinking about multidisciplinary and ticipation of victims and civil society from various Mexican states, comprehensive strategies. Finally, it is necessary to broaden the Central American countries, and Peru. This activity facilitated the discussions to other circles and forums. The relevance of sharing learning and sharing of information and experiences on the political experiences from different situations, and cultivating closer ties fight against impunity, impact litigation, building partnerships, caring between organizations from Mexico City and the Mexican states, is for caretakers (or concern for the mental health of those who work a crucial element to consider.

60 Number 21, Year 9, January 2017 MAGAZINE OF THE DUE PROCESS OF LAW FOUNDATION

ANNIVERSARY 1997-2017 BOARD OF DIRECTORS STAFF

Naomi Roht-Arriaza Walter Albán Katya Salazar Katharine Valencia President Miguel Sarre Executive Director Program Officer Ariel Dulitzky Margaret Roggensack Laura Park Ramiro Orías Vice President Treasurer Director of Institutional Senior Program Officer Development and Finance Impunity and Judicial Leonor Arteaga Independence Senior Program Officer Marcela Alcántara Impunity and Grave Human Communications Officer Rights Violations Hannah Odio Daniel Cerqueira Program Assistant Senior Program Officer David Lovatón Human Rights and Extractive Consultant Industries Montserrat Peniche Úrsula Indacochea Consultant Senior Program Officer Luis Pásara Judicial Independence Senior Fellow

Due Process of Law Foundation Due Process of Law Foundation (DPLF) is a regional organization comprised of a multi-national group of professionals. 1779 Massachusetts Ave., NW, Suite 710 Its mandate is to promote the rule of law and human rights in Latin Washington, D.C. 20036 America through analysis and recommendations, cooperation with Tel.: (202) 462.7701 — Fax: (202) 462.7703 public and private organizations and institutions, the sharing of E-mail: [email protected] Web site: www.dplf.org experiences, and advocacy.

This publication was made possible thanks to the generous support of: