MEXICO CITY – 31 March 2011: The United Nations Working Group on Enforced or Involuntary Disappearances (WGEID) visited Mexico from 18 to 31 March 2011. The WGEID wishes to thank the Government of Mexico for extending an invitation to the WGEID to visit the country and for its very positive cooperation before and during the mission as well as its openness to dialogue with the members of the WGEID. The Working Group also wishes to thank civil society organizations, institutions of families of forcibly disappeared persons and particularly relatives who provided information and their testimonies. Finally, the WGEID thanks the Office of the United Nations Office of the High Commissioner for Human Rights Secretariat from Geneva and Mexico for their invaluable support.
The mission was conducted by three members of the WGEID: Ms. Jasminka Dzumhur (Bosnia and Herzegovina), Mr. Ariel Dulitzky (Argentina) and Mr. Osman El Hajjé (Lebanon). The purpose of the visit was to learn about Mexico’s efforts in dealing with the issue of enforced disappearances. In particular, to examine the status of the investigations of old and recent cases, steps taken to prevent and eradicate enforced disappearances, what is being done to combat impunity, and other issues, including matters concerning truth, justice and reparations for victims of enforced disappearances.
During its mission, the WGEID visited Mexico City (Federal District); Chihuahua and Ciudad Juárez (State of Chihuahua); Acapulco, Chilpancingo and Atoyac de Alvarez (State of Guerrero); and Saltillo (State of Coahuila) and met with several authorities at the federal and state levels. In this regard, the WGEID held a series of meetings with high-ranking civil servants, including the Minister of the Interior and the Minister of Public Security, and with authorities of the Ministry of Foreign Affairs; the Ministry of the Interior; the Ministry of National Defense; the Ministry of Public Security; the National System of Public Security; the Technical Secretariat of the Coordinating Council for the Implementation of the Criminal Justice System; legislators of the Chamber of Senators and the Chamber of Deputies of the Congress of the Union; Justices of the Supreme Court of the Nation; officials of the Office of the Attorney General of the Republic (in Mexico City and in the States of Chihuahua and Guerrero); and officials of the Governments of all the States visited. The Working Group visited a military base in Saltillo and it would have liked to visit military bases in the States of Chihuahua and Guerrero.
The WGEID met with the National Human Rights Commission and the State Human Rights Commissions of Chihuahua, Guerrero, Coahuila and the Federal District, as well as with many international and non-governmental organizations, relatives of disappeared persons, former victims of enforced disappearance and other civil society actors all over Mexico.
This is the second visit of the Working Group to Mexico, as the WGEID conducted the first visit ever to any country to Mexico in 1982. Since its establishment in 1980, the Working Group has dealt with 412 cases concerning Mexico. Of those, 24 cases have been clarified on the basis of information provided by the source, 134 cases have been clarified on the basis of information provided by the Government, 16 cases have been discontinued and 238 remain outstanding. It is important to recall that these figures, like in all other countries in the world, are not representative of the extent of the issue. The increased numbers of newly admitted cases in 2010 and the high number of new allegations received during the visit could indicate a deterioration regarding enforced disappearances in Mexico.
The WGEID recognizes that the Mexican Government maintains a permanent invitation to all Special Procedures of the United Nations. In addition, the WGEID would like to commend the Government of Mexico for having ratified all the core UN human rights treaties, including the International Convention on the Protection of All Persons from Enforced Disappearance, as well as the Inter-American Convention on Forced Disappearance of Persons.
1. Institutional and Legal Framework
Mexico is a federal State with competencies divided between the Federation and 32 federal entities (including the Federal District). In addition, there are more than 2,500 municipalities that have some responsibilities in public security issues.
The federal structure of the country creates opportunities for experimentation in the design of instruments to deal with forced disappearances and also for the development of different layers of protection for persons victims of enforced disappearance. However, the Working Group is concerned with the challenges that this structure may pose to the effective implementation of the 1992 Declaration on the Protection of All Persons from Enforced Disappearance (the Declaration). The distribution of competencies; the lack of a general or federal law that regulates all aspects of enforced disappearance; the presence of federal, state and municipal security forces; the possibility that crimes be investigated at federal or state level depending on whether they are committed with the direct or indirect involvement of officials; all these factors dilute the responsibilities of federal and state authorities. The Working Group noted that most officials, NGOs and victims of enforced disappearances emphasized the problem of the lack of vertical and horizontal coordination among Government authorities. In addition, when meeting with many federal authorities, it was explained to the WGEID that some of the tasks related to prevention, investigation, sanction and reparations of enforced disappearances were of the state domain. On the other hand, state authorities asserted that the federal government has responsibilities in central issues, such as dealing with organized crime groups, with kidnappings and with guaranteeing security by virtue of the presence of the Federal Police, the Army and the Navy.
The competence to pass criminal laws in Mexico is shared by the states and by the federal Government. Furthermore, there are some crimes that are exclusively reserved to the Federation. Enforced disappearance is an autonomous crime in the Federal Criminal Code and in the criminal legislation of seven states (Aguascalientes, Chiapas, Chihuahua, Durango, Federal District, Nayarit and Oaxaca), while in the remaining 25 states it is not. The criminal legislation of the Federation and the states that have specifically criminalized enforced disappearance do not use the same definition. In addition, most do not include the possibility that enforced disappearances be committed by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government. Statutes of limitations are excluded from the legislation of most of the above-mentioned seven states. It is important to note that in 2004 the Supreme Court ruled that the statute of limitations for enforced disappearances should not begin to run until the whereabouts of the victim are revealed or his/her fate are determined. Some other states have opted for enacting non-judicial legislation and procedures to deal with enforced disappearances.
The inconsistencies in the definition of the crime of enforced disappearance with the Declaration and other relevant international instruments and the fact that the vast majority of the states have not yet criminalized enforced disappearances as an autonomous offense contribute to impunity.
The Constitution establishes that international treaties ratified by Mexico are part of the supreme law of the Union. The Supreme Court has affirmed that international treaties are hiearchically above general, federal and local legislation. Important constitutional amendments relating to human rights were adopted by the Congress of the Union during the mission of the WGEID, that in essence establish that human rights enshrined in international treaties have constitutionl hierarchy. The amendments also provide more legal force to the recommendations of the public human rights institutions. A previous constitutional amendment recognizes that international human rights violations can be grounds for the amparo legal action.
Mexico confronts a very difficult situation of public security due to the increasing violence mainly generated by organized crime. The Working Group recognizes the efforts of the Government in dealing with this very complex situation and acknowledges that the phenomenon of enforced disappearances cannot be properly understood without taking into account the current violent context and the presence of organized crime. Nevertheless, not every single crime in the country, included enforced disappearances, can be attributed to organized crime groups.
As impunity is a prevalent element of cases of enforced disappearances, many cases which might qualify as enforced disappearance are reported and investigated as different crimes or not even considered as crimes. The Working Group received multiple testimonies of instances in which the deprivation of liberty of a person, which constitutes the first element in an enforced disappearance, is classified under different crimes such as kidnappings or abuse of authority or power.
In many other occasions, instances of enforced disappearances are euphemistically and popularly labelled as “levantones”. Additionally, in multiple instances, persons are simply considered “missing” or “lost” without considering that they may be victims of enforced disappearance, particularly groups such as women, children and migrants.
The WGEID received a variety of information concerning the number of enforced disappearances. Civil human rights organizations reported that, according to their estimations, more than 3,000 persons have been disappeared throughout the country since 2006. For its part, the numbers of complaints of enforced disappearance received by the National Human Rights Commission (CNDH) have steadily increased from 4 complaints in 2006 to 77 in 2010.
The WGEID understands that only after an independent, impartial, full and effective investigation can a potential enforced disappearance be ruled out. Thus, the number of cases of enforced disappearances could not be fully established without proper inquires of all these crimes. The mandate of the Working Group relates to enforced disappearances. However, it condemns all acts of disappearances regardless of the character of the perpetrator.
In the security context, there was much insistence that 92% of all the crimes committed in Mexico are under state and not federal jurisdiction. Many federal authorities stated that while federal institutions tend to be very well equipped, professionally staffed and trained, with proper oversight mechanisms, the state institutions tend to be weak, less professionally developed and with few human and financial resources.
In 2006, the Government decided to deploy thousands of Armed Forces personnel to perform public security tasks. According to the information received by the Working Group, Armed Forces do not simply act as support of civil authorities and accept orders from them but perform tasks that correspond exclusively to these authorities. These militarized operations consist of the deployment of thousands of military troops on the streets in urban areas or at strategic points such as highways and also include the search of individuals, automobiles and residences, in many cases without a search warrant issued by a civilian court.
The Working Group was also informed on the presence of a high number of military officials as heads of state and municipal police units or as directors of state Public Security Ministries. The Ministry of National Defence informed the Working Group that these military (and in most cases retired) officers are not under its oversight.
The logic of a military and police official are different and as such military operations in the context of public security should be strictly restricted and properly overseen. Military personnel are trained to deal and operate against an enemy army rather than to perform police activities or interact with civilians. It is not surprising that the number of complaints received by the CNDH concerning the National Defence Ministry increased from 182 in 2006 to 1,230 in 2008. From 2006 to-2009 the CNDH has issued more than 40 recommendations which on the basis of its investigations confirm human rights violations by the military. The CNDH recommendations are many times the only publicly available record on investigations into military abuses and as such constitute a vital means of highlighting patterns of human rights violations.
In addition to the strategy of deploying military forces, in the last several years Mexico has implemented profound institutional and police reforms to strengthen its security agenda. The newly established Executive Secretary of Public Security and the National Security System, intended to harmonize and integrate the federal, state and municipal police and security system could prove to be very valuable in the prevention, eradication and punishment of enforced disappearances. The WGEID understands the challenges that this system faces, requiring coordination, harmonization and complementation among the Federal Police, the Police of the 32 states and the more than 2,200 municipal polices. All these police forces present an enormous different range of training, equipment and accountability processes. For the WGEID this is of great concern as, according to the information received, many cases of enforced disappearances are still happening precisely at the state and municipal level.
The WGEID was informed of the restructuring of federal law enforcement forces to establish the Federal Police in June 2009. To complement this effort, the Government has been implementing measures to professionalize, train, and modernize the Police force at the three levels of government. These include higher recruitment standards, a revamped police academy, and an integrated communication platform known as Plataforma Mexico.
The WGEID did not receive any information regarding the existence and implementation of accountability and transparency mechanisms for the Police. According to different sources only the Ministry of the Navy and the Police of Mexico City have regulatory frameworks concerning the use of force. The experience of the Working Group demonstrates that these frameworks are essential to limiting the excessive use of force and act as a preventive measure with regard to enforced disappearances.
Furthermore, the Working Group received credible information that military forces had detained civilians and taken them to military bases. In many instances, military and other security forces that perform detentions have used the overly-broad concept of quasi-flagrancia and flagrancia equiparada that allows any person to detain a person several hours and even days after the actual commission of crime. The WGEID also received detailed documentation of several cases of enforced disappearance committed by military forces. In fact, the Ministry of Defense informed of one case of enforced disappearance in which the responsible personnel was convicted by the military jurisdiction. Finally, the presence of military forces had extended beyond the performance of security operations. The Working Group was informed of instances in which military personnel interrogated people in detention and some instances used torture and other cruel, inhuman or degrading treatment. The WGEID also received information that Army and other security forces were involved in short-term enforced disappearances, that is, the detention of persons for a short period of time, without recognizing the detention for several days before bringing the person to civil authorities.
A series of constitutional amendments intended to address organized crime could undermine the protection against forced disappearances. The 2008 constitutional reforms introduced the arraigo (pre-charge detention) for someone who is investigated for serious offenses or organized crime. According to the new regime, a person can be held under arraigo for 40 days, which can be extended to 80 days, without being charged and with very limited contact with lawyers and relatives. The WGEID received information of instances in which a person who faced transitory or short-term disappearances was later presented to local authorities and placed under arraigo.
The Constitutional reform of 2008 establishes a detention registry which is outlined inthe General Law on National System of Public Security. It establishes that the Police and Prosecutors should provide information to those persons who submit requests regarding the detention of a person. In fact, the WGEID was informed that the Detention Registry is one of the most underdeveloped databases of the National System of Public Security and that the different police forces do not yet share a unified detention procedure.
Right to Justice:
The right to an effective judicial remedy for enforced disappearances requires the ability to prevent, investigate, prosecute and sanction those who commit this horrendous crime and to bring integral reparations for the victims. Yet impunity for crimes in general and enforced disappearances in particular remains a central challenge in Mexico at the federal and state level. The Working Group was informed of only two criminal convictions currently under appeal against public officials for enforced disappearances despite the number of reported crimes. In fact, the continuing lack of public confidence, particularly in law enforcement agencies and the judicial police, is a sign of the limited advances in this area.
The Working Group had received extensive and consistent information indicating that fear discourages victims to file complaints or demand investigations for enforced disappearances. According to many sources, authorities, particularly prosecutors, try to discredit the disappeared persons by stating that they were involved with organized crime groups without any evidence or investigation against them. Additionally, in several instances, members of the families of those who disappeared have suffered reprisals for demanding adequate investigations.
The WGEID notes that there have been a number of problems identified in investigations into cases of enforced disappearances, including omissions, delays and lack of due diligence. Many prosecutors refused to receive a complaint on enforced disappearance accepting only to issue a prosecutorial certificate but not to initiate a proper criminal investigation. According to sources, most cases of enforced disappearances have been declared “on reserve”. In most investigations, the only evidence is that which the family provided.
In 2008 an important constitutional reform was adopted. The central feature of this reform is the transformation of Mexico’s inquisitorial criminal justice system to an adversarial one. Given the extent of the reform there is a vacatio legis of eight-years (up to 2016) for its full implementation. The WGEID notes that only seven states have harmonized their criminal procedures with the constitutional changes. The new system has to yet be implemented at the federal level despite the important efforts of the Coordinating Council for the Implementation of the Criminal Justice System. A new legal culture needs to be developed in order to ensure the success of the adversarial criminal system. If the police and the prosecutors are not fully equipped, trained and properly overseen, the impact of the new system in breaking the pattern of impunity will be minimal.
In states where the new criminal justice system has already entered into force, many operations that are jointly conducted by federal and state authorities fall under two different and in many occasions incompatible criminal justice systems, such as in the case Chihuahua.
In addition to the criminal system, relatives of enforced disappeared persons have used the amparo action which, according to the information received, has proven to be an insufficient remedy. Many judges processing the action of amparo require complainants to identify the authority responsible for violating the victim’s constitutional rights—but in cases of enforced disappearance, the perpetrator’s identity is unknown. Furthermore, judges require the relatives identify the place where the person is being held and request the ratification of the amparo by the disappeared person. In the case of enforced disappearances this requirement is impossible to fulfil. The Working Group understands that the constitutional amendment of 2010 would revamp the amparo and could make it a more effective remedy in cases of enforced disappearances.
Regarding enforced disappearances in the context of the “Dirty War”, only 2.5 percent of the cases investigated resulted in the initiation of prosecution, and only 20 of those cases proceeded with charges being placed. The Working Group was informed by the Office of the Attorney General and other sources that the criminal investigations continue to the present day but that no official has been convicted and no one is being held in detention or is awaiting trial due to enforced disappearances. In its meeting with the Working Group the Office of the Attorney General did not provide any specific information on the hypothesis of investigations, real advances in the prosecutions, the likelihood of new indictments nor the channels for communications with the relatives of the disappeared.
Some investigations were transferred from the Office of the Attorney General to military jurisdiction; in this regard the Working Group would like to recall the clear terms of article 16 of the Declaration that precludes the use of military jurisdiction to investigate and prosecute instances of enforced disappearances. The Military General Prosecutor did not inform the Working Group of any case of enforced disappearance during the “Dirty War” that resulted in the conviction of any military officer.
Article 13 of the Mexican Constitution expressly excludes the application of military jurisdiction in cases where civilians are involved and the military tribunals shall in no case extend jurisdiction over persons who do not belong to the Army. However, Article 57 of the Code of Military Justice defines ordinary crimes as offences against military discipline and subject to military jurisdiction when committed by military personnel “on active service or for reasons of active service”. This secondary law has been used as a legal basis to ensure that allegations of human rights violations, including enforced disappearances, committed by military personnel are almost always subject to military jurisdiction.
As the military justice system lacks independence and impartiality, victims and their relatives are denied the right to access to justice. This is a key obstacle to ending impunity for human rights violations including enforced disappearances. For its part, the amparo action has proven an ineffective remedy to challenge the limits of military jurisdiction. In August 2009, Mexico’s National Supreme Court of Justice ruled that relatives of a victim of enforced disappearance were not recognized as having the constitutional right to contest military jurisdiction by way of an amparo action. .
The WGEID takes note that the National Ministry of Defense has accepted all recommendations directed towards it by the CNDH in relation to abuses committed by military authorities. However, at the same time the WGEID observes that the investigations regarding these abuses remain in military jurisdiction.
The Government proposed reforms to the Code of Military Justice in 2010 that transfer cases of enforced disappearance, rape, and torture from military jurisdiction to civilian jurisdiction. The proposal, which is currently pending approval in the Senate, is certainly an important step in the right direction. Nonetheless, the WGEID understands that effective, independent and impartial investigations are essential to prevent and eradicate instances of enforced disappearances committed by military personnel. The Working Group notes the importance of ensuring the jurisdiction of civilian courts in all matters relating to enforced disappearances and grave human rights violations in general, regardless of whether the perpetrators are military personnel. Any legislative reform that excludes only the crime of enforced disappearances from military jurisdiction could incentivize military prosecutors to investigate and bring lesser charges in order to maintain military jurisdiction.
The Right to Truth
Many enforced disappearances occurred during the “Dirty War”. The WGEID notes that many of the families of the disappeared during this period still demand to know the truth about the fate or whereabouts of their loved ones.
The CNDH and the Special Prosecutor for Social and Political Movements of the Past (FEMOSPP) had dealt with questions relating to the truth about disappearances during the “Dirty War”: The CNDH investigated enforced disappearances that reportedly occurred during the “Dirty War” of the late 1960s, 1970s, and early 1980s. In Recommendation 26/2001, the CNDH, for the first time, documented cases of enforced disappearances and established State responsibility. The CNDH investigated 532 instances of alleged forced disappearances during the "Dirty War": in 275 cases, persons were victims of detention, interrogation, and possible enforced disappearance by public servants of various governmental agencies. For the remaining cases, evidence was not enough to confirm enforced disappearance although it could not be ruled out as an investigative hypothesis. The FEMOSPP investigated 797 cases of enforced disappearance in total. Other sources estimate there were 1,350 enforced disappearances, including 650 in Guerrero, with 450 of these in the region of Atoyac de Álvarez.
Recommendation 26/2001 proposed the creation of a Special Prosecutor that resulted in the establishment of the FEMOSPP to investigate enforced disappearances and punish the perpetrators of these crimes. In 2006, the Attorney General announced the closing of FEMOSPP after almost six years of work.
In December 2005 FEMOSPP drafted a report entitled “May it Never Happen Again!” and in February 2006 a preliminary version of the report was leaked to the press and published by a number of national and international media. This draft established the basis for recognizing State responsibility in the commission of grave human rights violations during the 1960s, 1970s and 1980s. In November 2006, FEMOSPP made public its official report. Nevertheless, the official version of this report never received final approval by the Office of the Attorney General and currently is not available on any official website. The Office of the Attorney General informed that the report could be obtained through a freedom of information request.
The FEMOSPP was the only channel opened by the State to deal with the ongoing demand for truth and justice. For this reason a number of victims, relatives and organizations supported its work and provided it with documentation. The Working Group realizes that FEMOSPP faced many challenges and despite some very positive steps taken during its work, it failed to secure truth, justice and reparations to the victims of the “Dirty War”.
The documents collected by the Office of Investigations and Documentary Analysis of the FEMOSPP cannot be accessed despite the fact that the agreement formalizing discontinuation of the FEMOSPP in November 2006 ordered that they be kept at the National Institute for Criminal Sciences. According to sources consulted, this institution does not acknowledge having the respective files in its archive. The Office of the Federal Attorney General informed that it has a copy of all the documents and that the original ones were returned to the National Archives, where they are open to the public. Meanwhile, civil society organizations had informed that they could not get access to those documents as they do not know where they are currently being held.
Although Article 6 of the Constitution guarantees freedom of access to information, in practice there are problems concerning its implementation which significantly limits the relatives´ ability to obtain information and find out the truth and civil society organizations in their work in the area of promotion and accountability. This is especially prominent in relation to information about the status of criminal investigations. A recent reform to the Federal Code of Criminal Procedures further diminishes the right to information by limiting the publication of legal investigations, solely to decisions not to prosecute, which may only be released after a period equal to the statute of limitation for the crime, up to 12 years and not less than 3 years.
Mexico lacks an integral policy to deal with phenomenon of enforced disappearances. In addition to the lack of comprehensive plans to prevent and punish enforced disappearances, the Working Group wishes to highlight problems with the search of forcibly disappeared persons, the identification of unnamed remains, the exhumation of remains, the lack of a centralized database of disappeared persons and lack of access to information related to instances of enforced disappearances. The Working Group did not receive information on why Plataforma Mexico has not being used in a more systematic way to determine the fate or whereabouts of victims of enforced disappearances nor to find the existence of potential clandestine graves.
The Working Group notes the importance of the proper determination of the fate and whereabouts of disappeared persons as a means of securing the rights to truth, justice and reparation. The WGEID received information that a large number of authorities refuse to register cases of disappearances during the period of 72 hours after the disappearance occurs. This timeframe is crucial to obtaining information on the fate of enforced disappearance and preventing murder.
Furthermore, exhumations and proper identifications are vital. The Working Group notes that there are no clear rulesfor carrying out exhumations, identification of remains and for their storage. They are particularly important with a view to protecting genetic information on the disappeared and their families. In the case of disappearances of persons during the Dirty War this appears to be particularly relevant as many of the relatives are dying due to their age.
The CNDH has implemented the Program for the Presumed Disappeared to handle complaints of disappearance. This program aims to create and make available a national database of missing, disappeared or absent and unidentified deceased persons, within the CNDH´s functions.
Information from different state institutions in relation to instances of enforced disappearances is generally collected without any systematic approach and often in a mutually contradictory manner. This scattered information does not contribute to clarifying the real dimensions of the problem of enforced disappearances. This particularly applies to the number of registered, investigated and prosecuted cases, the number of exhumed and identified bodies, the responsible institutions, and the number of submitted claims for reparation. In sum, there is no single database of information about forced disappearances collected at the federal, state and municipal level.
The right to reparation
The Working Group recognizes that the victims of acts of enforced disappearance and their families shall obtain redress and shall have the right to integral reparation, which includes compensation, satisfaction, restitution, rehabilitation and guarantees of no repetition, as provided by Article 19 of the Declaration.
By way of decree in 2001, the Government created the Interdisciplinary Committee for Reparations to Victims or Those Adversely Affected by Human Rights Violations of Individuals Linked to Social and Political Movements in the 1960s and 1970s. The Working Group welcomes that the Chamber of Deputies of the Congress of the Union in the 2011 budget included for the first time an allocation intended for reparations of victims amounting to 30.000.000 pesos in order to compensate victims of the “Dirty War” and comply with the decisions of the Inter-American Court of Human Rights.
The Working Group notes that the Interdisciplinary Committee has not established clear guidelines for granting reparations. According to the information provided to the Working Group, the number of cases of enforced disappearances which will benefit from reparations will be limited only to the 275 as ascertained by the CNDH in its Recommendation 26/2001 and there is no plan to expand reparations for other victims. The Working Group was also informed that there are no discussions on developing an integral reparation program for victims of enforced disappearances outside the context of the “Dirty War”.
The Working Group received information that civil claims for reparations in cases of enforced disappearances are extremely rare if not inexistent. The Working Group was also informed that the right to reparation will be included in the Constitution and that there is a Law on the Responsibility of Public Servants and a Federal Law on the Patrimonial Responsibility of the State. In each of the states, there is also a legislative instrument regulating the responsibility of public officials. Nevertheless, the WGEID could not find any example of a civil decision granting reparations to relatives of enforced disappeared persons.
There is also a possibility to receive compensation as a complement of a criminal conviction. Although this is a legal possibility in practice it is rarely implemented. Even if a victim submits a claim for reparations, , the quantum of proof is elevated to the criminal standard. Finally, according to the information, even if reparation for damages is granted in addition to a criminal conviction, families usually do not receive it as there are no parameters to determine its amount and the convicted public official in most cases will not have the financial resources to pay the compensation.
Groups in situations of particular vulnerability
Recent cases of enforced disappearances indicate that among the victims of enforced disappearances there are some groups that are in situations of particular vulnerability including minors, women, migrants, human rights defenders, journalists and social and trade union activists.
The Working Group notes that there is no publicly available information on the enforced disappearance of women. For example, the CNDH does not have information regarding the number of women denounced as victims of disappearance.. Disappearances of women are particularly prominent in the State of Chihuahua. According to information received by the Working Group, these disappearances, which preceded many murders of girls and women, had been reported to authorities. Nevertheless the government authorities did not adopt effective measures to search for the disappeared women.
Migrants are also vulnerable to enforced disappearance. In 2009, the CNDH reported 9,578 kidnappings of migrants. In addition, it has reported that between April and September 2010, at least 11,333 migrants were abducted, mainly by criminal organizations. According to the reports of the CNDH and from other sources, officers pertaining to different bodies, including the National Migration Institute (INM), federal, state and municipal police sometimes collaborate with criminal organizations in the abductions of migrants, thus committing a crime amounting to enforced disappearance strictu sensu. Indeed, the CNDH reports that 8.9% of abductions documented in those six months of 2010 involved government authorities. As most of the kidnappings against migrants remain in impunity it is very difficult to determine if they could qualify as enforced disappearances. Until a proper and full investigation is conducted, it is not possible to accept that all the kidnappings of migrants are carried out by organized crime groups only, or to rule out that there is no direct participation or at least tolerance or acquiescence of public officials.
The Government has taken some steps to deal with the situation of kidnappings of migrants. There is now the possibility of granting migrants with a humanitarian visa in order to permit them to stay in the country while the criminal investigation on the kidnapping is carried out. Also some states have created a specialized police unit to deal with this matter. Finally, the federal Government has signed cooperation agreements with the CNDH and some Central American countries. Testimonies provided to the Working Group indicate that these programs have not yet produced positive results.
The Working Group received information on threats against human rights defenders in general and specifically against those that defend and accompany victims of enforced disappearance, their families and migrants. The Working Group wishes to express particular concern regarding the situation of human rights defenders whose current location is unknown.
Journalists are another specific group that has faced many attacks, including disappearances. According to the CNDH, twelve journalists have been disappeared since 2000. Last year, the CNDH registered four disappearances.
The climate of impunity that surrounds these aggressions against women, migrants, human rights defenders and journalists has permitted the continuation of these acts and inhibits the proper investigation and punishment of these crimes.
The Working Group appreciates the substantive information that the different official authorities, civil society organizations, relatives and victims provided in order to better understand the phenomena of enforced disappearances in Mexico. Enforced disappearances happened in the past and continue to happen in the present. Even for disappearances occurred in the past, they continue to be an issue for the present as enforced disappearance is a continuous crime.
The WGEID observes that there is a lack of a comprehensive public policy that deals with the different aspects of prevention, investigation, punishment and reparation of enforced disappearances. It appears that there is no vertical and horizontal coordination among federal, local and municipal levels neither within the same level of government.
The public security concerns regarding organized crime are real and the WGEID recognizes the right and duty of the State to take corresponding action. But addressing this challenging situation cannot be done at the expense of respect for human rights or condone the practice of enforced disappearance. Nor can cases of enforced disappearance be exclusively attributed to organized crime without proper and full criminal investigation.
The Working Group notes that victims of enforced disappearances lack confidence in the justice system, prosecutors, police and armed forces. Impunity is a chronic and present pattern in cases of enforced disappearances and no sufficient efforts are being carried out neither to determine the fate or whereabouts of persons who disappeared, to punish those responsible nor to provide reparations.
The Working Group reiterates its solidarity with the victims of enforced disappearances and their families. Their never-ending pain is the living evidence that enforced disappearance is a continuing offence and a continuous human rights violation, for as long as the fate or the whereabouts of the victims remain in question. The Working Group also pays tribute to the many human rights defenders, NGOs, lawyers and others who work tirelessly, often in very adverse circumstances, to eradicate this terrible practice.
Based on the foregoing considerations the Working Group wishes to make the following preliminary recommendations to the Mexican State:
- Recognize the dimension of the problem of enforced disappearance as the first and necessary step to developing comprehensive and effective measures to eradicate it.
- Produce statistical data on enforced disappearances to develop policies for prevention, eradication, investigation, punishment and reparation. The data should be disaggregated by gender, age, geographical region, location where the disappearance happened and authorities involved. They should include information, where available, on date and place of exhumation and information on family members.
- Accept the competence of the Committee on Enforced Disappearances in terms of articles 31 and 32 of the International Convention on Enforced Disappearances on individual and State complaints.
- Publish in the Official Gazette of the Federation the register of the ratification of the International Convention for the Protection of all Persons from Enforced Disappearance, in order to guarantee the full adherence to this instrument domestically.
- Carry out all actions necessary to ensure that all relevant international instruments on enforced disappearance are complied with and effectively applied in all parts of the country without any limitations or exceptions including the withdrawal of all reservations or interpretive declarations that may undermine the effectiveness of these instruments.
- Approve the constitutional human rights reform as soon as possible and carry out the necessary legislative adjustments to ensure the effective implementation of the new constitutional framework.
- Secure the full independence and autonomy of all the state human rights commissions.
- Ensure that the definition of enforced disappearance in the domestic criminal legislation is in line with that established in the Declaration and other relevant international human rights instruments.
- Ensure the crime of enforced disappearance is included in the criminal code of every state and as soon as possible adopt a general law related to enforced or involuntary disappearances. The general law should define the autonomous crime of enforced disappearance; create a specific search procedure for the disappeared person with the participation of family members of victims; and establish a national registry of forcibly disappeared persons with the guarantee that relatives, lawyers, human rights defenders and any other interested person have full access to the registry. The law should allow for the declaration of absence as a result of enforced disappearance. Finally, the general law should be a legal tool for the full support and protection of relatives of the disappeared as well as witnesses and also for the right to integral reparations.
- Consider the withdrawal, within a short timeframe, of military forces from public security operations and criminal law enforcement as a measure to prevent enforced disappearances.
- Establish protocols regulating the use of force by the military and all police corporations as a preventive measure with regard to enforced disappearances, according to the principles of necessity, rationality, proportionality and legality.
- Ensure the coordination between authorities responsible for public security with the objective of adequately preventing and investigating the enforced disappearance of persons.
- Guarantee the complete identification of all authorities competent to detain persons.
- Strengthen the detention registry to ensure that it is permanently updated and harmonized with other databases in order to monitor the physical location of persons; include strict control over the authorities responsible for registering detentions and issue proper sanctions for those who fail to do so. The detention registry should indicate the reasons for the arrest; the exact time of the arrested person’s arrival at the place of custody; the duration of the deprivation of liberty; the identity of the authority who ordered the person’s detention as well as of the officials responsible for enforcing it; the chain of custody of detainees; precise information concerning the place of custody, and the time of the detained person’s first appearance before a judicial or other authority.
- Abolish arraigo detention from legislation and practice, both at federal and state level.
- Reform the legal framework of flagrancia to restrict its use to the very moment of the commission of a crime and eliminate the concepts of quasi-flagrancia and flagrancia equiparada.
- Use Plataforma Mexico to clarify and investigate all instances of enforced disappearances.
- Ensure the swift entry into force of the new constitutional and legal framework for amparo actions to ensure effective legal remedies are available to address enforced disappearances. In particular, the new amparo legislation should adequately respond to the unique nature of enforced disappearances, include a broad definition for victims, guarantee an active role on the part of the judicial authority and avoid setting prohibitive demands on the circumstances in question, such as the identification of the place of detention, determination of the responsible authority and the direct ratification of the amparo by the victim.
- Ensure the swift entry into force of the new adversarial criminal justice system in order to guarantee the rights of victims of enforced disappearance. The WGEID encourages Mexico to strengthen and fully implement these constitutional changes by devoting more resources to better prepare officials in the investigation and prosecution of enforced disappearances cases. This includes providing training and resources to search for the disappeared person, to preserve the crime scene, to investigate these cases with a systemic view to understanding the patterns of enforced disappearances cases, including the chain of command, among other factors.
- Ensure the jurisdiction of civilian courts in all matters relating to enforced disappearances and grave human rights violations in general, regardless of whether the perpetrators are military personnel. The State should guarantee that civilian prosecutors conduct immediate and serious investigations in all complaints lodged concerning human rights violations including enforced disappearances committed by military personnel. Military prosecutors should be legally prevented from initiating any investigation regarding grave human rights violations including enforced disappearances.
- Develop a proper legislative framework and ensure the provision of financial and human resources and technical equipment for the forensic investigation of enforced disappearances.
- Establish an effective mechanism for the continuation of the investigations and prosecutions of the crimes, including enforced disappearances committed during the “Dirty War”.
- Guarantee the right to justice and action to combat impunity by: training law enforcement and judicial personnel; the adoption of protocols for investigation; the protection of witnesses and family members.
- Strengthen the legal recognition of the representation of victims, guarantee the full access of victims´ family members and their representatives to criminal investigations and ensure that victims and their families are not made responsible for providing elements of proof concerning the crime committed.
- Provide greater support to family members and family associations to allow them to play a critical role in addressing enforced disappearances issues.
- Establish a national search program of persons that includes a rapid response protocol. This program should also include highly trained personnel responsible for the exhumation and identification of mortal remains and should be executed with full budgetary and operational independence.
- Create a database with the personal information available on forcibly disappeared persons at the national level, including personal information, principally DNA and tissue samples. The State must protect the personal information in these databases at all times.
- The Office of the Attorney General should immediately release the report produced by FEMOSSP and post it on its official website, clarify the whereabouts of all the documents that FEMOSSP received and grant full access to them as they relate to human rights abuses and cannot be considered neither state secrets nor an obstacle to criminal investigations.
- Transfer all military files pertaining to the era of the "Dirty War" from the Ministry of Defense to the General National Archives with the aim of guaranteeing their free access by the public and systematize the access to all files from the former Federal Security Direction and the Special Prosecutor´s Office so that these are available in the General National Archives.
- Make known the names of those persons that participated in acts of enforced disappearance according to the information that resides with the CNDH in relation to its preparation of Recommendation 26/2001.
- Guarantee the right to integral reparation for victims of enforced disappearance. A legislative framework should provide that reparation is proportionate to the gravity of the human rights violation and to the suffering of the victim and family and should include whenever possible restitution, psycho-social and medical support, satisfaction, compensation and guarantees of non-repetition.
- Establish, for the purposes of reparation, a broad definition of the victim not tied to the determination of criminal responsibility and criminal sentencing, nor limit the number of beneficiaries to those victims fully accredited by the CNDH.
- Develop protection policies for groups particularly vulnerable to disappearance, such as women and migrants.
- Guarantee secure conditions for journalists and all human rights defenders, including those that act against enforced disappearances and defend the rights of victims. In particular, adopt a national system for the protection of human rights defenders.
The Working Group reiterates that these are preliminary observations. The analysis of the information received during and prior to the visit, as well as any assessment relating to the locations visited, will be considered in the preparation of the report which will be presented to the Human Rights Council in March 2012.
The Working Group expresses its willingness to maintain constructive dialogue with the Mexican State and offers to provide its complete assistance regarding the full application of the Declaration.
The Working Group was established by the United Nations Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. It endeavours to establish a channel of communication between the families and the Governments concerned, to ensure that individual cases are investigated, with the objective of clarifying the whereabouts of persons who, having disappeared, are placed outside the protection of the law. In view of the Working Group's humanitarian mandate, clarification occurs when the fate or whereabouts of the disappeared person is clearly established.
The Working Group continues to address cases of disappearances until they are resolved. It also provides assistance in the implementation by States of the United Nations Declaration on the Protection of All Persons from Enforced Disappearance.
For more information on the WGEID, please refer to the following web site: http://www.ohchr.org/english/issues/disappear/index.htm
To learn more on how to submit cases to the WGEID, please refer to the following link: http://www2.ohchr.org/english/issues/disappear/docs/How_to_use_the_WGEID.pdf
OHCHR Country Page – Mexico: http://www.ohchr.org/EN/Countries/LACRegion/Pages/MXIndex.aspx
For more information and media requests:
OHCHR México Office:
Rosa Gutiérrez (Tel.: +52 55 5061 6374 / e-mail: [email protected])
OHCHR Secretariat of WGEID
Ms. Giovanna Zucchelli (Tel.:+ 4179 444 3993 / e-mail: [email protected])
Mr. Matías Pellado (Tel.: +41 79 444 4917 / e-mail: [email protected])