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Human Rights Violations and Impunity in the Public Security and Criminal Justice System

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Human Rights Violations and Impunity in the Public Security and Criminal Justice System TABLE OF CONTENTS Introduction……………………………………………………………………………………1 Chapter 1: International human rights standards………………………………………............3 Chapter 2: Arrest, charges and committal proceedings………………………………............19 Chapter 3: Torture, ill-treatment and impunity……………………………………………….32 Chapter 4: The right to effective defence……………………………………………………..41 Chapter 5: Impunity and accountability………………………………………………............49 Chapter 6: Conclusions and recommendations…………………….…………………………62 Appendix: Institutions in Mexico’s criminal justice system at federal and state level.............67 AI Index: AMR 41/002/2007 Amnesty International February 2007 Mexico Laws without justice: Human rights violations and impunity in the public security and criminal justice system Introduction Amnesty International hopes that the administration of Mexico’s new president, Felipe Calderon, will seize the opportunity to achieve substantial and lasting progress in the protection of human rights within the country. A key challenge will be to advance some of the principal reforms to the criminal justice system proposed in 2004, but which have since remained stalled in Congress. This report examines in detail some of the failings of criminal justice system which often result in the arbitrary and unfair application of the law in Mexico, and presents recommendations to the government in five main areas: international human rights standards; public security and the criminal justice system; accountability; human rights defenders and rights of victims. UN thematic mechanisms have consistently highlighted failings in the criminal justice system, particularly the lack of impartiality among key actors and the failure of the judiciary, prosecutors, police and military to uphold international human rights standards. In recent years there has been an apparent reduction in reports of human rights abuses committed by federal authorities. 1 However, only five percent of reported crime falls to the federal authorities to investigate and punish, while 95 percent takes place within the jurisdiction of Mexico’s 31 states and the Federal District.2 It is under these local jurisdictions that the population primarily comes into contact with the system of public security and justice and it is in this context that the majority of human rights violations are reported. Impunity for human rights abuses remains the norm in many states, encouraging public security and criminal justice system officials to resort to abusive practices when carrying out their duties. Victims of these violations disproportionately come from the poorest and most marginalized sectors of society - members of indigenous communities, peasant farmers, women, children, migrants and socially excluded urban communities. Although the National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) and the 1 Mexico is a federal republic with 31 states and the Federal District. There is a federal executive, legislature and judiciary. The Mexican Constitution sets out the relation between federal and state governments, which are “free and sovereign”, each with its own constitution, executive, legislature and judiciary. Each state also has its own law enforcement police, judicial police and Public Prosecutor’s Office. State criminal codes establish proceedings and punishments for all offences that are not federal in nature. Federal offences are primarily international or cross state crimes, particularly organized crime. All other offences fall within the jurisdiction of the state authorities. 2 According to the National Statistics Institute, Instituto Nacional de Estadísticas, Geografía e Informatíca (INEGI), 1,501,304 crimes were reported to the Public Prosecutor’s offices in 2004. 1,419,756 were local state jurisdiction offences; that is 95%. www.inegi.gob.mx AI Index: AMR 41/002/2007 Amnesty International February 2007 2 Laws without Justice: Human rights violations and impunity in the public security and criminal justice system network of state human rights commissions can play an important role in exerting pressure on the authorities to investigate abuses and punish those responsible, they often fail to adequately defend the rights of victims and secure redress. In researching this report Amnesty International interviewed representatives of federal and various state governments, prosecutors, defence lawyers, members of the judiciary, non- governmental human rights organizations, victims of human rights abuses and their families. The organization’s findings illustrate how law enforcement police, judicial police, prosecutors, judges and lawyers often fail to consistently enforce international fair trial standards.3 These include the right not to be deprived of liberty arbitrarily, the right to physical integrity, the right to effective defence, the right to be presumed innocent until proven guilty and the right to effective legal recourse. In particular, it highlights the lack of impartiality among some police, prosecutors and judges, coupled with the significant discretional powers granted to the Public Prosecutor’s Office in criminal proceedings, which undermine the principle of equality of arms between prosecution and defence.4 It is vital that the new government and members of the federal Congress assume the long overdue responsibility of introducing substantive reform of the public security and criminal justice system to ensure that the legal framework in force protects human rights. It is also vital that the federal authorities and state authorities take all necessary steps to ensure that state law and practice are consistent with these standards and that longstanding impunity for human rights abuses ends. All too often, local public officials present the protection of human rights as an obstacle to combating crime, rather than a means of ensuring safe convictions, fair trial standards and the independence and impartiality of the justice system. If the new government is to succeed, it must show clear commitment to the protection of human rights as a fundamental step to securing improved effectiveness and public confidence in the criminal justice system. Only when laws consistent with international human rights standards are rigorously applied by all officials will there be equal access to justice for all. 3 Refer to appendix for a description of institutions in the public security and criminal justice system at federal and state level. 4 “Equality of arms” means that each party must be afforded a reasonable opportunity to present its case, under conditions that do not place it at a substantial disadvantage vis à vis the opposing party. Amnesty International Fair Trial Manual, December 1998, AI Index: POL 30/02/98; Chap. 13.2 Amnesty International February 2007 AI Index: AMR 41/002/2007 Laws without Justice: Human rights violations and impunity in the public security and 3 criminal justice system Chapter 1: International human rights standards The International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (ACHR) establish a number of minimum core obligations on state parties to protect the right to freedom and security of person, the rights of criminal suspects and the right to a fair trial. 5 Other international instruments to which Mexico is a state party, such as the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Inter-American Convention to Prevent and Punish Torture and the Convention on the Elimination of all forms of Discrimination, set out clear legal obligations for the Mexican authorities. The United Nations has also established a set of codes of minimum standard for agencies responsible for the criminal justice system and the administration of justice that member governments have agreed to implement. These include the Basic Principles for the Treatment of Prisoners, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Basic Standard Minimum Rules for the Treatment of Prisoners, Code of Conduct for Law Enforcement Officials, Principles on the Independence of the Judiciary, Basic Principles on the Role of Lawyers, Guidelines on the Role of Prosecutors, and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice. Formal commitment to international human rights standards The Mexican government has shown an important commitment to international human rights law. Despite limiting the application of at least two key treaties by adding reservations and interpretive clauses, Mexico has now signed and ratified most international and regional human rights instruments – including the Rome Statute and the Optional Protocol to the Convention Against Torture. 6 The government has undertaken a Technical Cooperation Programme with the Office of the United Nations High Commissioner for Human Rights (OHCHR) and facilitated the presence of the OHCHR office in Mexico City. The government issued an open invitation to international and regional human rights mechanisms and non- governmental human rights organizations, which has resulted in field visits and reports by most of the human rights thematic mechanisms of the United Nations and the Inter-American Commission of Human Rights (IACHR). This welcome engagement with international human rights bodies has produced a series of detailed recommendations to address Mexico’s human rights situation, many focusing on the failure of the criminal justice system to guarantee the rights of criminal
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