INTER-AMERICAN COURT OF HUMAN RIGHTS
CASE OF CABRERA GARCÍA AND MONTIEL FLORES v. MEXICO
JUDGMENT OF NOVEMBER 26, 2010
(Preliminary Objection, Merits, Reparations and Costs)
In the Case of Cabrera García and Montiel Flores,
the Inter-American Court of Human Rights (hereinafter, the “Inter-American Court” or the "Court"), composed of the following judges:
Diego García-Sayán, President;
Leonardo A. Franco, Vice-President;
Manuel E. Ventura Robles, Judge;
Margarette May Macaulay, Judge;
Rhadys Abreu-Blondet, Judge;
Alberto Pérez Pérez, Judge;
Eduardo Vio Grossi, Judge and
Eduardo Ferrer Mac-Gregor Poisot, ad hoc Judge;
also present:
Pablo Saavedra Alessandri, Secretary and,
Emilia Segares Rodríguez, Deputy Secretary,
pursuant to Articles 62(3) and 63(1) of the American Convention on Human Rights (hereinafter, the “Convention” or the “American Convention”) and Articles 30, 32, 38, 56, 57, 58 and 61 of the Court’s Rules of Procedure[1] (hereinafter, the “Rules of Procedure”) delivers this Judgment, which is organized as follows:
I. INTRODUCTION OF THE CASE AND PURPOSE OF THE DISPUTE / paras. 1-6II. PROCEEDINGS BEFORE THE COURT / paras. 7-11
III. PRELIMINARY OBJECTION TO THE “FOURTH INSTANCE RULE” / paras. 12-22
IV. JURISDICTION / para. 23
V. EVIDENCE / para. 24
1. Testimonial and expert evidence / paras. 25-26
2. Admission of documentary evidence / paras. 27-36
3. Assessment of statements by the alleged victims, and of evidence from witnesses and expert witnesses / paras. 37-48
4. Considerations on the alleged “supervening evidence” / paras. 49-51
VI. PRIOR CONSIDERATIONS
1. Facts that were not included in the Commission's application / paras. 52-60
2. Alleged contextual facts / paras. 61-65
VII. RIGHT TO PERSONAL LIBERTY IN RELATION TO THE OBLIGATIONS
TO RESPECT AND GUARANTEE RIGHTS
1. General description of the processes and jurisdictional levels that assessed the facts in the domestic sphere / para. 66
1.1. Undisputed facts related to the arrest of Messrs. Cabrera and Montiel / paras. 67-68
1.2. Judicial proceedings that led to the conviction of Messrs. Cabrera and Montiel / paras. 69-70
1.3. Applications for amparo filed by Messrs. Cabrera and Montiel against the decision of the First Single-Magistrate Court / paras. 71-73
1.4. Investigation initiated due to the claims regarding acts of torture against the alleged victims. Actions by the Military Public Prosecutor’s Office and the National Commission on Human Rights / paras. 74-76
2. Alleged violation of the right to personal security / paras. 77-89
3. Failure to promptly bring the matter before a judge or other officer authorized by law to exercise judicial power / paras. 90-102
4. Alleged lack of information on the reasons for the arrest and lack of prompt notification regarding the charge or charges filed / paras. 103-106
VIII. RIGHT TO HUMANE TREATMENT [PERSONAL INTEGRITY] IN RELATION TO THE OBLIGATIONS TO RESPECT AND GUARANTEE RIGHTS AND THE OBLIGATIONS TO PREVENT AND PUNISH TORTURE CONTAINED IN THE INTER-AMERICAN CONVENTION / paras. 107-110
1. Proven Facts
1.1 Statements rendered by the alleged victims / paras. 111-113
1.2 Medical certificates included the case file / paras. 114-120
1.3 Expert opinions specifically aimed at verifying alleged acts of torture / paras. 121-125
2. Obligation to investigate the alleged acts of torture / paras. 126-132
3. Legal classification / paras. 133-137
IX. RIGHT TO JUDICIAL GUARANTEES AND JUDICIAL PROTECTION, IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS, THE DUTY TO ADOPT DOMESTIC LEGAL EFFECTS AND THE OBLIGATIONS EMBODIED IN THE INTER-AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE / paras. 138-151
A. Criminal proceedings against Messrs. Cabrera and Montiel
1. Right to defense / paras. 152-162
2. Exclusion of evidence obtained under duress / paras. 163-177
3. Presumption of innocence principle / paras. 178-186
B. Criminal proceedings to investigate the alleged torture of Messrs. Cabrera and Montiel / paras. 187-189
1. Ex officio investigation in the ordinary courts / paras. 190-193
2. Military criminal justice jurisdiction / paras. 194-201
3. Effective judicial remedy in the military criminal justice system / paras. 202-204
4. Adapting Mexican domestic law on the intervention of the military criminal courts / paras. 205-207
X. REPARATIONS / paras. 208-210
A. Injured Party / paras. 211-212
B. Obligation to investigate the facts and to identify, judge and, if applicable, punish those responsible / paras. 213-215
C. Measures of satisfaction, rehabilitation, and guarantees of non-repetition
c.1 Measures of satisfaction
i) Publication of the Judgment / paras. 216-217
c.2 Measures of rehabilitation
i) Medical and psychological care / paras. 218-221
ii) Removing the victims’ names from all criminal records / paras. 222-223
c.3 Guarantees of non-repetition
i) Adapting domestic law to international standards of justice / paras. 224-235
ii) Adapting domestic law to international standards regarding torture / para. 236
iii) Adopting a mechanism for a public and accessible registry of detainees / paras. 237-243
iv) Training programs for civil servants / paras. 244-245
v) Other measures requested / paras. 246-247
E. Compensatory damages
D.1 Pecuniary damages / paras. 248-254
D.2. Non-pecuniary damages / paras. 255-261
E. Legal Costs and Expenses / paras. 262-267
F. Method of compliance with the payments ordered / paras. 268-273
XI. OPERATIVE PARAGRAPHS / para. 274
Concurring Opinion of Eduardo Ferrer Mac-Gregor Poisot, ad hoc Judge
I
INTRODUCTION OF THE CASE AND PURPOSE OF THE APPLICATION
1. On June 24, 2009 the Inter-American Commission on Human Rights (hereinafter the “Inter-American Commission” or the “Commission”) filed a claim against the United Mexican States (hereinafter the “State”, the “Mexican State” or “Mexico”), pursuant to Articles 51 and 61 of the Convention, in relation to case 12.449. The initial petition was submitted to the Commission on October 25, 2001 by Ubalda Cortés Salgado, Ventura López and the following organizations: Sierra Club, Greenpeace International, Centro de Derechos Humanos Miguel Agustín Pro Juárez – PRODH (Center for Human Rights Miguel Agustín Pro Juárez - PRODH) and the Center for Justice and International Law (CEJIL). On February 27, 2004 the Commission adopted Report 11/04, which declared the case admissible.[2] On October 30, 2008 the Commission approved the Merits Report 88/08, prepared according to Article 50 of the Convention.[3] Considering that Mexico had not adopted the recommendations included in said report, the Commission decided to submit this case to the Court’s jurisdiction. The Commission designated Florentín Meléndez, Commissioner and Santiago A. Cantón, Executive Secretary of the Inter-American Commission, as delegates and appointed Elizabeth Abi-Mershed, Assistant Executive Secretary, and Isabel Madariaga, Juan Pablo Albán Alencastro, and Marisol Blanchard, specialists at the Executive Secretariat, as legal advisers.
2. The claim is related to the State’s alleged responsibility for subjecting Messrs. Teodoro Cabrera García and Rodolfo Montiel Flores (hereinafter Messrs. “Cabrera García” and “Montiel Flores” or “Messrs. Cabrera and Montiel”) “to cruel, inhuman and degrading treatment, while detained in the custody of members of the Mexican army, for the failure to bring them, without delay, before a judge or other official authorized to carry out judicial functions in order to oversee the legality of their detention, and for the irregular procedures carried out during the criminal proceedings against them.” Furthermore, the claim refers to the alleged lack of due diligence in the investigation and punishment of those responsible for the facts, the lack of adequate investigation into the alleged torture, and the use of military courts to investigate and judge human rights violations. The detention of Messrs. Cabrera and Montiel took place on May 2, 1999.
3. The Commission requested that the Court declare the Mexican State responsible for the violation of the rights enshrined in Articles 5(1) and 5(2) (Humane Treatment), 7(5) (Personal Liberty), 8(1), 8(2)(g), 8(3) (Fair Trial) and 25 (Judicial Protection) of the American Convention; for non-compliance with its general obligations under Article 1(1) (Obligation to Respect Rights) and 2 (Domestic Legal Effects) of the Convention; and for non-compliance with the obligations set forth in Articles 1, 6, 8 and 10 of the Inter-American Convention to Prevent and Punish Torture, to the detriment of Messrs. Cabrera and Montiel. The Commission also asked the Court to order the State to implement several measures of reparation.
4. On November 2, 2009, the Human Rights Center Miguel Agustín Pro Juárez A.C.[4] [Centro de Derechos Humanos Miguel Agustín Pro Juárez A.C.] (hereinafter “Centro Prodh”), the Center for Justice and International Law[5] (hereinafter, “CEJIL”) and the Human Rights Center of Montaña Tlachinollan A.C.[6] [Centro de Derechos Humanos de la Montaña Tlachinollan A.C.] (hereinafter “the representatives”) filed the brief containing pleadings, motions and evidence (hereinafter, “brief of pleadings and motions”). In addition to the violation of rights alleged by the Commission, the representatives alleged that torture was committed in this case, in violation of Article 5 (Humane Treatment [Personal Integrity]) to the detriment of the alleged victims’ relatives, due to the “suffering caused by the violations against their loved ones and the continued impunity of said violations;” the violation of Article 16 (Freedom of Association) of the American Convention to the detriment of Messrs. Cabrera García and Montiel Flores, since the violations against them were in “retaliation for their participation in an organization for the defense of the environment and because the State did not ensure that they could carry out their work in safety.” Within this framework, they also alleged the violation of Article 7 (Personal Liberty) in relation to paragraphs 7(1), 7(2), 7(3) and 7(4) of the American Convention. Lastly, the representatives requested that the Court order the State to adopt several reparation measures.
5. On February 7, 2010 the State submitted a brief containing its preliminary objections, its answer to the application and observations to the brief of pleadings and motions (hereinafter “answer brief”). In said brief the State filed a preliminary objection concerning the Court’s “[l]ack of jurisdiction to hear the merits of the […] petition under the principle of fourth instance.” Likewise, the State denied its international responsibility for the violation of the rights alleged by the other parties. The State appointed Ambassador Zadalinda González y Reynero as its Agent.
6. In accordance with Article 38(4) of the Rules of Procedure, on April 2, 2010 the Commission and the representatives submitted their arguments in relation to the preliminary objection filed by the State.
II
PROCEEDINGS BEFORE THE COURT
7. The representatives and the State were notified of the Commission’s application on September 2, 2009. On that same day, upon the instructions of the President of the Court and according to the applicable Rules of Procedure, the State was asked about its reasons for appointing an ad hoc Judge for this case.[7] On October 15, 2009 the State appointed Eduardo Ferrer Mac-Gregor Poisot in this capacity.
8. In an Order issued on July 2, 2010, the Court’s President (hereinafter “the President”) summoned a public hearing in this case and ordered that certain affidavits and other statements be presented at said hearing.[8] The parties were granted an opportunity to present observations to the affidavits.
9. The Court also received twelve amicus curiae briefs from the following individuals, institutions and organizations: The Human Rights Clinic of the Human Rights Program at Harvard Law School,[9] concerning the admissibility of the alleged victims’ arguments regarding the duration of the unlawful detention and abuse suffered during their detention; the Human Rights Clinic at the University of Texas,[10] concerning the vulnerability of persons detained without an arrest warrant and the need to be brought before a court, without delay; Gustavo Fondevila, a professor at the Centro de Investigación y Docencia Económica (Economic Research and Teaching Center) (CIDE),[11] concerning unlawful detentions carried out by the Mexican Army and the legalization of torture under the concept of coerced confession; Asociación para la Prevención de la Tortura (Association for the Prevention of Torture),[12] regarding the exclusion of evidence obtained under torture; Miguel Sarre, professor at the Instituto Tecnológico Autónomo de Mexico (Autonomous Technological Institute of Mexico) (ITAM),[13] regarding the State’s obligation to regulate the registration of detainees as a measure of non-repetition; Clínica de Derechos Humanos de la Escuela Libre de Derecho (Human Rights Clinic at the Free Law School),[14] on the duty to protect, guarantee and provide an effective remedy for human rights and environmental defenders; Comisión Mexicana de Defensa y Promoción de los Derechos Humanos A.C. (Mexican Commission for the Defense and Promotion of Human Rights A.C,[15] regarding the broad discretion of the Mexican Public Prosecutor’s Office to conduct a preliminary inquiry; Centro Mexicano de Derecho Ambiental (Mexican Center for Environmental Law) (CEMDA) and Asociación Interamericana para la Defensa del Medio Ambiente (Inter-American Association for Environmental Defense) (AIDA),[16] on the importance of environmental defenders in Mexico, the attacks they have suffered and their right to freedom of association; Programa de Derechos Humanos de la Universidad Iberoamericana (Human Rights Program of the Ibero-American University),[17] regarding the prohibition to assess evidence obtained under torture and without judicial oversight; International Forensic Program of Physicians for Human Rights,[18] on non-compliance with the international requirements regarding the evidence of sodium rhodizonate; EarthRights International,[19] on the human rights abuses carried out in the context of communities’ resistance to extractive industries; and the Environmental Defender Law Center,[20] on the serious situation faced by Mexican environmentalists, the international acknowledgment of environmental defenders and the violation of the rights of Messrs. Cabrera and Montiel.
10. The public hearing was held on August 26 and 27, 2010 during the Court’s Eighty-eighth Regular Period of Sessions, at the Court’s seat.[21] During the hearing the judges asked a number of questions and requested evidence to facilitate adjudication of the case.[22]
11. On October 11, 2010 the Inter-American Commission, the representatives[23] and the State forwarded their final written arguments, which were conveyed to the parties so that they could present any observations deemed pertinent regarding certain documents presented by Mexico and by the representatives together with those briefs. In their final arguments, the parties presented evidence related to the questions and evidence to facilitate adjudication of the case, as requested by the Court.
III