Second periodic
reports of States parties due in 1992
Addendum
MEXICO*
[28 May 1996]
* This report contains the additional information requested by the
Committee against Torture at its ninth session, following its consideration
of the second periodic report of Mexico (CAT/C/17/Add.3) on 17 November
1992 (see docs. CAT/C/SR.130 and 131); see also the Annual Report
of the Committee against Torture, Official Records of the General
Assembly, Forty-eighth Session, Supplement No. 44 (A/48/44,
paras. 208-229).
Introduction
1. The
second periodic report of the Government of Mexico contained information
up to June 1992 and referred, in particular, to the establishment,
by a Decree of 6 June 1990, of the National Human Rights Commission
(CNDH) and the approval, in December 1991, of the new Federal Act
to Prevent and Punish Torture.
2. The
present report contains information provided by various bodies concerning
the period between May 1992 and December 1995 and relating especially
to the activities of the CNDH, the Office of the Attorney-General
of the Republic and the implementation of the Federal Act to Prevent
and Punish Torture.
3. During
the period covered by the report, human rights commissions were
established in all the legislatures of the Republic under the Decree
of 28 January 1992, which added a paragraph (b) to article 102 of
the Constitution, empowering federal and State congresses to establish
bodies for the protection of human rights, with constitutional status,
in their respective areas of competence.
4. As will
be recalled, when the first report of the Government of Mexico was
submitted to the Committee against Torture, all complaints of torture
were considered by the National Commission. Currently, when complaints
of torture involve federal authorities, they are dealt with by the
National Commission, and when they involve State authorities, they
are first dealt with by the State commissions, although the National
Commission may exercise its power to consider them.
I. LEGISLATIVE MEASURES
5. Under
the terms of the Federal Act to Prevent and Punish Torture, the
offence of torture occurs when a public servant inflicts severe
pain or suffering on another person, and by that simple fact, regardless
of the results or consequences of the act, he deserves the penalty
established for this offence. For this reason, when a public servant
commits torture, generally physical torture, he may, in addition
to that offence, also have committed other offences, such as threats,
injuries or even causing death, and when this happens, it is known
legally as a combination of offences.
6. In practice,
article 64 of the Federal Penal Code, and article 25 of the Penal
Code for the Federal District, state that in this category of offence,
"the penalty for the most serious offence shall be applied,
and may be increased to up to one half more than the maximum sentence,
although it may not exceed the maximum penalty, which is 50 years'
imprisonment".
7. This
means that public servants who have committed the offence of torture
are tried and punished in accordance with the above-mentioned rules
and not solely for torture, but also for causing serious injuries
or for homicide.
8. During
the period covered by this report, amendments to a number of enactments
were introduced and subsequently incorporated into federal law
in January
1994, with the result that the Federal Government was able to assume
direct responsibility for the reparation of damage caused by the
wilful misconduct of public servants, including moral damage.
9. With
regard to the national law applicable to the restitution, compensation
and rehabilitation of victims of grave violations of human rights,
on 10 January 1994 amendments to the following ordinances were published
in the Diario oficial de la Federación (annex I): 1/
(a) Penal
Code for the Federal District in respect of Ordinary Law and for
the entire Republic in respect of Federal Law;
(b) Federal
and Federal District Codes of Penal Procedure;
(c) Amparo
Act;
(d) International
Extradiction Act;
(e) Civil
Code for the Federal District in respect of Ordinary Law and for
the Entire Republic in respect of Federal Law;
(f) Federal
Act on the Responsibilities of Public Servants;
(g) Tribunal
Fiscal of the Federation Organization Act;
(h) Federal
District Administrative Court Act;
(i) Federal
Act to Prevent and Punish Torture;
(j) Federal
Budget, Accounts and Public Expenditure Act;
(k) Judiciary
of the Federation Organization Act.
10. These
amendments, which are concerned with the reparation of damage resulting
from the commission of offences, state that such reparation includes
compensation for material and moral damage, including payment for
any medical treatment needed as a result of the offence to enable
the victim to regain his health.
11. It
has also been provided that the State must accept liability in
solidum for damage resulting from wilful misconduct of public
servants in the performance of their duties and, secondary liability
when the misconduct involved only imprudence; a specific line in
the State public expenditure budget has been provided for this purpose.
12. Furthermore,
where the damage is caused by acts not deemed to constitute offences
under the Civil Code, the State is made liable for the reparation
of damage caused by public servants in the performance of their
duties. As a general rule, State liability is secondary, except
in the case of wilful misconduct, where it is in solidum.
In this regard, State liability arises only in cases where the public
servant who is directly responsible does not have sufficient means
to cover his own liability.
13. With
respect to administrative liability, the procedure for obtaining
reparation of damage has been streamlined, in terms of both time-limits
and formalities. Prior to the amendment the amount of time required,
and the excessive bureaucratic formalities, made it virtually impossible
to secure reparation. In addition, judicial procedures have been
established to make reparation effective in cases where the public
servant refuses to comply.
14. The
reform establishing the liability of the State and regulating the
means of exercising recognized rights, which is even more important,
has a preventive aspect with regard to torture. When the authorities
are obliged to provide reparation for damages, as the CNDH pointed
out in recent recommendations, such as Recommendation 98/95, they
become more aware of the need to introduce efficient monitoring
machinery so that public servants under their authority observe
the law in performing their duties, and there is also a greater
incentive to provide staff training in human rights.
15. Recommendation
98/95 (annex II) 1/ concerns the disturbances of 3-4 May
1995 at the Guadalajara Social Rehabilitation Centre, when State
and federal police beat and mistreated inmates, taking seven lives;
it was sent to the Governor of the State of Jalisco and the Attorney-General
of the Republic.
16. The
Attorney-General, in applying article 2 of the Convention against
Torture - which requires the States parties to take legislative,
administrative, judicial or other measures to prevent acts of torture
- has always endeavoured to ensure that public servants comply with
the obligations under the procedural statute and with the commitments
under the Convention and other international instruments, such as
the Inter-American Convention to Prevent and Punish Torture.
17. Between
June 1992 and December 1995, the Office of the Attorney-General
of the Republic published the following legal ordinances which regulate
the conduct of public servants in that Office in defending human
rights and combating impunity:
(a) Regulations
of the Office of the Attorney-General of the Republic Organization
Act. In 1993, the General Directorate for the Protection of Human
Rights was established within that Office, with the specific functions
enumerated in article 29 of the Regulations, consisting of monitoring,
protection and promotion of human rights, dissemination of the values
that must form the basis of the conduct of public servants responsible
for securing justice, so as to avoid, through preventive action,
the commission of offences such as torture;
(b) Code
of Professional Ethics for federal agents of the Public Prosecutor's
Department and the judicial police, published on 24 March 1993;
(c) Regulations
of the Federal Judicial Police career, published on the same date;
(d) Circular
010/93 of 6 April 1993, issued by the Attorney-General of the Republic
establishing the CNDH Recommendation Follow-up Unit. Its purpose
is to respond to the requirements of the CNDH, especially concerning
complaints about the conduct of preliminary investigations in which
a particular offence is presumed to have been committed, as would
be the case for torture and other serious crimes;
(e) Institutional
Code of Conduct and Ethics, adopted in 1995 (annex III); 1/
(f) Definition
of the mandate of the Office of the Attorney-General of the Republic,
adopted in September 1995:
"The Office
of the Attorney-General of the Republic, which includes the
Public Prosecutor's Department, is a fundamental organ of the
federal justice system. On behalf of individuals, society and
the State it promotes and monitors compliance with the Constitution
and ensures that justice is done within its areas of competence.
It also participates in crime prevention activities to guarantee
public safety;
This mandate must
be exercised in strict compliance with the principles of the
Constitution and the laws for this implementation, as well as
with the full observance of human rights, prerequisites for
the rule of law.
The activities of
the Federal Public Prosecutor's Department and its subsidiary
offices shall be oriented towards, and governed by, the principles
of honesty, professionalism, impartiality, loyalty and efficiency,
good faith and humanity."
(g) Circular
No. 001/95 of 10 March 1995. This provides that all communications
which any public servant of the Office of the Attorney-General of
the Republic requires to have with the CNDH must be effected through
the Internal Control Unit, which will be the only point of contact
for communication with and proceedings before that body.
II. STATISTICS ON COMPLAINTS CONCERNING AND
PENALTIES FOR THE OFFENCE OF TORTURE
18. In
the period between May 1992 and May 1993, torture was the seventh
most frequently cited form of presumed violations of human rights,
according to the CNDH, accounting for 246 cases, or 2.8 per cent,
of the total of 8,793 complaints received by that body; the number
of complaints of torture was down 43 per cent from the previous
year.
19. In
the fourth year of its existence, from May 1993 to May 1994, the
CNDH received 141 complaints of torture, which represented 1.6 per
cent of the 8,804 complaints submitted for presumed violations of
human rights making it the tenth commonest form of violation.
20. From
May 1994 to May 1995, complaints of torture fell by 68.1 per cent
compared to the previous year. Torture was alleged by complainants
in 46 cases received during that period and classified as presumed
violations of human rights.
21. As
to the penalties applied for the offence of torture, since 1992
a total of 37 preliminary investigations of torture have been initiated
as follows:
Total
number accused, 1992 18
Total
number accused, 1993 8
Total
number accused, 1994 0
Total
number accused, 1995 10
22. In
addition, the General Directorate for Follow-up on CNDH Recommendation,
part of the Office of the Attorney-General of the Republic, has
presented 31 preliminary investigations into the possible crime
of torture to the district judges, as follows:
Total
number accused, 1992 28
Total
number accused, 1993 0
Total
number accused, 1994 3
Total
number accused, 1995 0
23. The
CNDH is aware of criminal action having been brought against 53
public servants for the offence of torture and also knows of 14
cases of homicide arising from torture. In two cases, the trial
judge pronounced a verdict of guilty of torture and in five cases
a verdict of homicide as a consequence of torture. These cases are
the following:
Criminal proceedings for the offence of torture
1. In recommendation
73/91, in the case of Martín Arroyo Luna and others, criminal
action was brought against Gustavo Castrejón Aguilar (annex
IV); 1/
2. In recommendation
42/92, in the case of William Darío Kerguelen Pinilla, criminal
action was brought against Mario Santander Embriz (annex V);
1/
Criminal proceedings for the offence of homicide as a
consequence of torture
1. In recommendation
3/90, in the case of Jorge Argáez Pérez, criminal action was
brought against Alejandro San Pedro González (annex VI); 1/
2. In recommendation
29/90, in the case of the People of Aguililla, Michoacán, criminal
action was brought against Raymundo Gutiérrez Jiménez (annex
VII); 1/
3. In recommendation
1/91, in the case of Pedro and Felipe de Jesús Yescas Martínez,
criminal action was brought against Omar Olguín Alpízar (annex
VIII); 1/
4. In recommendation
15/91, in the case of Ricardo López Juárez, criminal action
was brought against Enrique Alvarez Palacios (annex IX); 1/
5. In recommendation
50/91, in the case of José del Carmen Llergo Totosaus, criminal
action was brought against José Rojas Garrido (annex X). 1/
24. Furthermore,
in seven cases the jurisdictional proceedings reached no conclusions;
in 13 cases, the respective arrest orders were not carried out;
and 25 arrest orders were rejected or cancelled by judges and a
formal arrest warrant revoked.
25. Of
the 1,022 recommendations issued by the CNDH from its establishment
until December 1995, torture was proven in 105 recommendations and
on those occasions the illegal action of the offending public servants
was publicly disclosed along with their names; it was also recommended
that the appropriate administrative and criminal proceedings should
be initiated. Those recommendations were based not only on national
legislation but also on the covenants and treaties ratified by the
Government of Mexico, such as the Convention against Torture and
Other Cruel, Inhuman or Degrading Treatment or Punishment.
26. Of
the 105 recommendations in which torture was proven, 72 are noteworthy
for having been fully implemented; 32, partially implemented; 2
remain pending, as they were issued only recently; and only 1 has
not been accepted by the Chief Justice of the Supreme Court of Justice
of the State of Sinaloa.
27. The
decrease in cases of torture should be viewed in the light of both
legislative reforms and the increase in the number of training courses,
which have resulted in qualitative progress in the manner in which
torture is dealt with; there is more emphasis on discovering torture
even when there are no physical traces, since torturers avoid leaving
any trace. Much progress has been made in training on how to conduct
expert examinations to prove psychological torture.
28. Above
and beyond the mere numbers, Mexico is continuing its efforts to
ensure that legal and political penalties for those who commit the
offence of torture are applied in full. However, the authorities
still need to be made more aware of the importance of penalizing
torture vigorously and in accordance with the law.
29. Two
basic issues come together: the impact of the CNDH's recommendations
on all sectors of society, and the political will of the authorities.
Much remains to be done in both respects, but there has already
been a major change in Mexican public life. Respect for human rights
is slowly acquiring greater importance in our institutions, especially
with regard to securing justice.
30. The
Government of Mexico considers it possible to carry out, comprehensively
and responsibly, the functions of enduring public security and combating
crime, while fully respecting individual guarantees. Even though
the sort of culture which fosters respect for individual guarantees
is still fragile, the rule of law has been strengthened and the
development of a climate of respect for human rights is under way.
III. ACTIVITIES OF THE NATIONAL HUMAN RIGHTS COMMISSION
31. Although
for reasons of competence it is now the local commissions which
initially hear complaints of torture committed by State authorities,
the National Commission has the power to review in second instance,
in addition to which it may exercise its power to examine in the
following cases: (a) cases which involve either authorities or public
servants of the Federation, as well as of the federative entities
or municipalities; (b) by cases of appeals complaining against,
or challenging, proceedings or resolutions of the State Human Rights
Commissions, as well as information furnished by local authorities
on implementation of the Commissions' recommendations; (c) cases
where the power to examine is exercised because the respective State
commission is inactive, or cases of a presumed violation which,
because of its importance, goes above and beyond the interest of
the federative entity and affects public opinion and, in such cases,
provided the matter is particularly grave.
32. It
is important to note that in federal cases, as happens in cases
of torture, there is no time-limit for the submission of complaints,
which strengthens the systematic struggle against impunity and guarantees
that no act of torture will go undenounced simply because of the
passage of time. The National Human Rights Commission Organization
Act should be mentioned in this regard, as it sets the precedent
for the imprescriptibility of the submission of complaints, and
defines torture as a crime against humanity.
Training programme to create a climate of respect for human rights
33. In
order to strengthen respect for human rights, the National Commission
trains all the security services and the armed forces. In the first
instance, the training programmes are focused on federal public
servants within the Commission's sphere of competence; however,
in matters of prevention and of promotion of a human rights culture,
the Commission has also been training municipal and State officials,
in coordination with the respective State Commissions, and involving
universities and non-governmental organizations.
34. Currently,
training programmes are focused on the following personnel responsible
for public or national security: police academy students, preventive
and municipal police, judicial police officers from the States and
Public Prosecutor's Departments of ordinary law, guards, immigration
officers, federal highway police, and staff assigned to the Office
of the Attorney-General of the Republic, including administrators,
Federal Judicial Police and officials of the federal Public Prosector's
Department.
35. Police
academy. An awareness-raising campaign is now under way, aimed
at reaching all the police officers of all the State and federal
agencies. It began as a pilot programme at the police academy of
the State of Aguascalientes, with a training model that makes it
possible to include not just human rights, but all related subjects,
in the curriculum. For example, restraint techniques involve not
only a knowledge of the techniques of subjugation and manoeuvre,
both individual and collective, use of firearms and development
of physical strength, but also a knowledge of the implications of
the use of force in time, technique and proportionality These techniques
must be learned at the same time as other police techniques, and
not as a desk course which has nothing to do with reality. Prior
to the current programme, the CNDH had prepared a police guide and
a manual which were widely disseminated among the police forces.
36. Municipal
police and preventive police. The training of preventive and
municipal police on active duty has begun in the State of Nayarit,
to familiarize the officers with the basic concepts of respect for
human rights and to teach them the implications of, and restrictions
on, their actions.
37. State
judicial police officers. During the period covered by this
report, training programmes were carried out in conjunction with
the State human rights commissions and the offices of the Attorney-General
in the States of Hidalgo, Oaxaca, San Luis Potosí, Chihuahua and
Tamaulipas, as well as in the Federal District. The same will be
done in the States of Veracruz, Yucatán and Quintana Roo. Between
May and December 1995, 342 officials of the Public Prosecutor's
Department and 693 judicial police officers were trained. This training
basically revolves around the use of force and the problem of arbitrary
detention, as well as the procedures to be followed by personnel
in the performance of their duties.
38. Guards.
Guards in the State of Querétaro are being retrained through a course
entitled, "How human rights work in the CERESO", which
answers such basic questions as "which of my rights has been
violated within the CERESO (Social Rehabilitation Centre), and which
of the detainees' rights might I someday violate?"; Seventy
persons have participated to date. This programme will be given
a major boost, in collaboration with non-governmental organizations
and the prisons themselves; it will also deal with the specific
problems of indigenous people and the situation of women detainees.
Training courses will also be given in the Islas Marias Federal
Penal Settlement.
39. Immigration
officers. In the current stage of the training provided for
immigration officers, a new programme has developed as a result
of the report published by the CNDH in April 1995, Southern border:
report on violations of the human rights of immigrants. In the
Chiapan cities of Tapachul and Comitán, 102 immigration officers
have been trained, out of a total of 230 immigration officers in
the States of Chiapas, Veracruz, Tabasco and Oaxaca. In addition
to supporting instruction on the findings and suggestions of that
report, the training process is aimed at diagnosing the fundamental
rights to be safeguarded by these offices in performing their duties
and at preparing a handbook for undocumented persons in Mexico,
to make them aware of their rights and of the civilized treatment
to which they are entitled in Mexican territory.
40. Federal
highway police. In the State of Nayarit, the federal highway
police training programme began with a workshop in which some 800
persons participated and which consisted of an initial awareness-raising
session on two subjects, the dignity with which they must be treated
as subjects of human rights, and the civilized treatment which must
in turn be given to the population as a basic condition for the
respect of human rights.
41. Federal
Judicial Police officers. An awareness-raising programme has
now been completed, in which 1,975 staff members from the Office
of the Attorney-General of the Republic throughout the country participated
as follows: 579 federal officers from the Public Prosecutor's Department;
746 Federal Judicial Police officers; and 650 administrative staff.
This training was given to staff on active duty, in their respective
police stations. The initial awareness-raising stage revolved around
three basic rights - the right to life, dignity and liberty - each
analysed from two perspectives: that of the public servant as a
subject of law, and in his dealings with the population, in carrying
out his duties as a member of the Federal Judicial Police. In each
session, an effort was made to unify the criteria used in the conceptualization,
ethics and axioms underlying these basic principles with the legal
form of expression and the juridical consequence, in order to remedy
the lack of specific information on such subjects as torture, arbitrary
detentions, the use of firearms and national and international legislation
ratified by Mexico. Furthermore, public servants' requests that
publications and information on human rights and topics requiring
special attention should be sent to and distributed at all the State
police stations of the Office of the Attorney-General of the Republic
have been met; seminars have been organized with the participation
of the CNDH and the training institute of the Office of the Attorney-General.
42. Military
academy. The CNDH has begun training courses on human rights
as part of the training of personnel of the General Staff of the
Armed Forces and the Mexican Air Force, as well as of managerial
and teaching staff, and has also initiated special courses at the
military academy, all for high-ranking officers in the Mexican army
and foreign scholarship holders. The curriculum includes an analysis
of philosophy and ethics movements, a historical overview of the
conceptual and legal development of human rights at the global level,
the Mexican Constitution and international law, humanitarian law
and Mexico's military legislation, and instruments for the protection
of human rights, with special emphasis on the role of the Ombudsman
and the procedures of the CNDH. During 1995, 440 high-ranking officials
participated in these courses.
IV. ACTIVITIES OF THE OFFICE OF THE ATTORNEY-GENERAL OF THE REPUBLIC
43. The
Office of the Attorney-General of the Republic, under the provisions
of article 10 of the Convention, has undertaken several internal
activities to disseminate, teach and promote human rights through
training courses, preventive programmes for vulnerable groups, publications
and the production of materials. This activity, which has been continuously
repeated, has contributed to a significant reduction in the number
of complaints of torture, as reflected in the CNDH's latest report.
44. During
1995, the Office of the Attorney-General of the Republic, through
the Internal Control Unit, carried out various activities aimed
not only at punishing public servants who act outside the law, but
also at establishing an ongoing human rights training programme,
in order to train its own public servants and make the administration
of justice a more efficient and law-abiding undertaking in keeping
with its responsibility to society.
(a) From
March to November 1995, training took place for 31 police stations
of the Office of the Attorney-General of the Republic in the interior
of Mexico,
with 2,367 public servants participating, including 686 public prosecutors;
913 judicial police officers; and 768 administrative staff, in 156
workshops of at least 4 hours each;
(b) From
October to December 1995, workshops were organized for the staff
of the Federal District, with 74 working session, attended by 1,657
public servants, of whom 422 were public prosecutors; 382 judicial
police officers; and 853 administrative staff;
(c) Overall,
from March to December 1995, 230 workshops were held for 4,024 public
servants, including 1,108 public prosecutors; 1,295 judicial police
officers; and 1,621 administrative staff.
45. The
Office of the Attorney-General has also recently compiled a list
of the national and international legal instruments in force in
Mexico on the protection of human rights, with a view to publishing
a volume containing all the texts for distribution to officers of
the Federal Public Prosecutor's Department and to all the Office's
public servants as material to consult in carrying out their duties
in strict compliance with the law, always avoiding any acts which
might be considered to be in violation of fundamental human rights.
The texts are as follows:
Convention against
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
Inter-American
Convention to Prevent and Punish Torture;
Principles of Medical
Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against
Torture and Other Cruel, Inhuman or Degrading Treatment;
Body of Principles
for the Protection of All Persons under Any Form of Detention
of Imprisonment;
Basic Principles
on the Use of Force and Firearms by Law Enforcement Officials;
1992 Federal
Act to Prevent and Punish Torture.
46. This
demonstrates the progress made by the Mexican State in fulfilling
its commitments under the Convention against Torture, although it
must be recognized that much remains to be done, since the objective
is the total elimination of torture.
Note
1/
The annexes mentioned in the report may be consulted in the files
of the United Nations Centre for Human Rights.