Committee against Torture
Information received from Mexico on follow-up to the concluding observations on its seventh periodic report *
[Date received: 23 June 2020]
Report of Mexico on follow-up to the priority recommendations of the Committee against Torture contained in paragraphs 9, 13, 15 and 27 of its concluding observations (CAT/C/MEX/CO/7)
1.In demonstration of its commitment and openness to international scrutiny in the area of human rights, and in compliance with its international obligations, the Government of Mexico presented its seventh periodic report on the implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Committee against Torture on 25 and 26 April 2019 in Geneva, Switzerland.
2.The Committee subsequently issued its concluding observations. In paragraph 64 of the concluding observations, the Committee requested the Government of Mexico to provide information on the follow-up given to the priority recommendations contained in paragraphs 9 (a) and (b), 13, 15 and 27 (b). In the present report, Mexico submits to the Committee the information requested on the follow-up to the priority recommendations. The report consists of 28 pages and an annex.
Priority recommendation 1, paragraph 9 (a) and (b)
Follow-up information relating to paragraph 9 (a) of the concluding observations
3.The President of the United Mexican States, Andrés Manuel López Obrador, has repeatedly spoken about the prohibition of torture. Since he took office in December 2018, his administration has made it a priority to uphold and guarantee human rights. This stance has been proclaimed in public on several occasions, such as during the presidential swearing-in ceremony on 1 December 2018, when he stated:
I reaffirm the commitment that the President of Mexico will never give orders to repress the people nor be complicit in committing or concealing potential human rights violations.
4.This commitment was reaffirmed at the morning press conference held as part of the inauguration of the country’s first Site of Remembrance, called Morelia Circular, which was opened to the public on 10 June 2019 in the place where the operations centre and clandestine detention and torture centre of the former Federal Directorate of Security were located during the 1970s. Victims of serious human rights violations, family members, civil society organizations and academics were consulted in the creation of the Site of Remembrance. At the opening ceremony, the President of Mexico stated:
We make a commitment never again to choose authoritarianism or repression, we undertake to respect, always, the freedom to express dissent and to respect plurality, and we undertake not to use force and especially not to engage in torture, disappearances, the murder of opponents, to erase such practices completely, to erase the dark history that we must overcome in this new phase, this transformation process that is taking place in our country.
5.This position was reaffirmed on 19 December 2019 at another of the morning press conferences, which are widely viewed by a large audience:
We will not allow the use of torture; such practices are very unfair, they are shameful, they were used to exact revenge on those who spoke the truth or who held views not shared by the Government. Those days are over.
6.In Mexico, the Ministry of the Interior is responsible for overseeing compliance with the constitutional precepts to which all human rights authorities are bound. On 29 September 2019, the Minister, Dr. Olga María Sánchez Cordero, led the ceremony in which the Government of Mexico publicly apologized to Martha Alicia Camacho Loaiza, Miguel Alfonso Millán and José Manuel Alapizco Lizárraga, victims of the historical period known as the “Dirty War”. In her message, she stated:
I offer you a public apology for the harm caused to the image, honour and dignity of your family as a result of the criminal acts committed against you by a number of institutions of the Mexican Government.
Through me, Mexico undertakes to guarantee full reparation for the harm caused by the authorities since 19 August 1977. I also reiterate this administration’s commitment to taking the necessary steps to ensure that the acts that violated your human rights are not repeated, so that no one else suffers the same atrocities.
I would like to add that the case of Ms. Martha Alicia Camacho Loaiza is evidence that when State violence is used against women, it involves a strong component of gender discrimination and subjugation that harms women’s bodies and women’s rights in a differentiated manner and seeks to inflict deep wounds to their dignity, as evidenced by sexual torture and obstetric violence. Ms. Martha Camacho, your tireless work in the search for justice and truth should serve as a model in recognizing the harm that many women suffered during that unfortunate period and who were silenced.
I affirm this Government’s commitment to respecting and upholding the full exercise of human rights. We will work to provide human rights training to our armed forces and take action to ensure that the actions of our institutions are always informed by a cross-cutting gender perspective.
7.On 22 August 2019, at a forum held in Guadalajara, Jalisco, on strategic and effective action to guarantee the full exercise of human rights in connection with torture and other cruel, inhuman or degrading treatment or punishment, the Undersecretary for Human Rights, Population and Migration of the Ministry of the Interior stated:
I want to say very clearly that we must assume that this is a regular practice in which authority figures at all levels of government have engaged. For many years, efforts have been made to hide it, to conceal it. This has sometimes led to the normalization of torture, arousing anger in the population.
[...] We will take on the responsibility of the Mexican State to protect, defend and uphold human rights in this country.
The practice of torture affects society as a whole; it not only harms the families of those who are subjected to this appalling practice, but it also affects society. We cannot allow them to be forgotten or let the truth be obstructed. Those responsible must be brought to justice and punished.
Mexico has to open up to international scrutiny. Torture unfortunately continues to be practised by public security and judicial bodies and must be eradicated. This is no small matter, since torture is one of the worst of the practices that reflect the State’s inability to shoulder its responsibilities in the sphere of human rights, as well as its inability to impart genuine justice.
8.In his remarks on the occasion of the first military ceremony attended by the current President of Mexico, the Minister for Naval Affairs, Admiral José Rafael Ojeda Durán, said that “[...] no member of the Ministry of Naval Affairs is obliged to obey an order that might constitute a crime, a violation of human rights or an attack on naval discipline. No one is above the law [...]”.
9.In compliance with that statement, the Ministry of Naval Affairs developed a course on the prevention of serious human rights violations and related issues. The course was approved by the Office of the Rector of the Naval University and is taught in coordination with the National Human Rights Commission and the International Committee of the Red Cross, with the aim of implementing the highest international standards in the area of human rights and the gradual and proportional use of force at the national and international levels.
10.The course has been taken by 3,796 members of the Ministry of Naval Affairs and has served as the basis for a number of human rights training courses for naval personnel in different commands. The course covered the following topics:
•Human rights violations identified by the National Human Rights Commission involving naval personnel in, inter alia, General Recommendation 15VG/2018
•Use of force
•Treatment of vulnerable groups, particularly women and children
•Torture and other cruel, inhuman or degrading treatment or punishment
•Participation of naval personnel in the adversarial criminal proceedings
11.With regard to the actions of the federal judiciary in this area, on 25 June 2019, the Federal Public Defender Service established within its General Directorate a Technical Secretariat tasked with combating torture and cruel and inhuman treatment. The Technical Secretariat is responsible for coordination, supervision, monitoring, advocacy, research, analysis and follow-up action in connection with the institutional response to acts of torture and other cruel, inhuman or degrading treatment or punishment.
12.The Technical Secretariat has identified more than 7,000 cases of torture or ill-treatment committed against persons who are or have been represented by the Federal Public Defender Service since 2011. As a result, between September 2019 and April 2020, it filed more than 900 complaints of acts of torture or ill-treatment allegedly committed by federal or state authorities against represented persons. The numbers disaggregated by sex are set out below.
13.Between November 2019 and April 2020, it also presented 70 applications for indirect amparo in 15 judicial districts on behalf of 117 persons who claim a lack of due diligence and excessive delays in the investigation of acts of torture or ill-treatment suffered by persons represented by the Federal Public Defender Service. The outcomes of the amparo proceedings that have been instituted are pending.
14.In addition, and in relation to the duty to prevent torture and other cruel, inhuman or degrading treatment or punishment in prisons, the Technical Secretariat filed four applications for indirect amparo on behalf of 582 persons deprived of their liberty (550 men and 32 women) relating to failures to adopt the necessary measures to prevent acts of torture and ill-treatment in three federal and two local prisons. The applications are pending:
•Federal Social Rehabilitation Centre No. 5 (Villa Aldama, Veracruz): On behalf of 129 persons deprived of their liberty, on the basis of information regarding the generalized use of possible acts of torture or ill-treatment in the Centre.
•Federal Social Rehabilitation Centre No. 6 (Huamanguillo, Tabasco): On behalf of 33 persons deprived of their liberty, relating to attacks on their lives or personal integrity by prison personnel as a result of omissions in the prevention of torture on the part of various authorities.
•Federal Social Rehabilitation Centre No. 13 (Miahuatlán, Oaxaca): On behalf of 262 persons deprived of their liberty, on the basis of the documentation of acts of torture and other cruel, inhuman or degrading treatment or punishment committed inside the Centre, including the use of toxic gas, unjustified isolation, threats, beatings, psychological torture, lack of timely medical attention, forced nudity and incommunicado detention.
•Cieneguillas State Social Rehabilitation Centre for Women and Cieneguillas Regional Social Rehabilitation Centre for Men (Zacatecas): On behalf of 158 persons deprived of their liberty, on the basis of omissions within a context of impunity and lack of due diligence among the state authorities, as well as the absence of an effective public policy on respecting and upholding human rights and preventing torture and ill-treatment in prisons.
Follow-up information relating to paragraph 9 (b) of the concluding observations
15.Article 29 of the National Criminal Enforcement Act provides for the conduct of a national survey of persons deprived of their liberty. The purpose of the survey is to obtain a range of statistical data, including, inter alia, information on the conditions under which persons deprived of their liberty are processed and detained, their demographic and socioeconomic profile, and the offences for which they were prosecuted or sentenced.
16.As the body legally responsible for the task, the National Institute of Statistics and Geography conducted the survey from 31 October to 9 December 2016 using resources allocated to it by Congress for this purpose.
17.All the prisons in use in Mexico between October and December 2016 – a total of 338 federal, state and municipal prisons in the 32 federative entities – were visited as part of the survey.
18.Article 29 of the above-mentioned Act establishes that the National Institute of Statistics and Geography must conduct the survey using its own budget. As a result of the budget adjustments made as part of the austerity measures implemented by the current federal administration, the Institute’s budget for 2019 had to be reduced. However, on 25 March 2020, the Institute and the Executive Secretariat of the National Public Security System signed a cooperation agreement on prison matters.
19.Under the agreement, the National Information Centre will provide the Institute with information from the administrative records of persons deprived of liberty in the National Prison Information Register. The information will be helpful to the Institute when it conducts the next survey.
20.As a result of the cooperation between the National Information Centre and the Executive Secretariat of the National Public Security System, the Institute will have the necessary information to conduct the survey, which will enable the authorities to design and implement high-quality public policies in this area and continue to provide information on the conditions under which persons legally deprived of their liberty are processed and detained.
Priority recommendation 2, paragraph 13
Follow-up information on paragraph 13 of the concluding observations
21.On 26 June 2017, the General Act on the Prevention, Investigation and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was published. Among other things, the Act mandates the creation of the National Programme on the Prevention and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The now defunct Attorney General’s Office was responsible for ensuring national coordination in the Programme’s design, preparation, implementation and application.
22.On 14 December 2018, when the autonomy of the new Prosecutor General’s Office was declared, all administrative procedures carried out by the defunct Attorney General’s Office for the fulfilment of its functions were abolished in accordance with article 27 (III) and (VII) of the Organic Act on the Federal Public Administration. It was agreed that the Ministry of the Interior would take over the national coordination of the design and implementation of the National Programme on the Prevention and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
23.The Ministry of the Interior, in close coordination with the Prosecutor General’s Office, undertook to create the conditions for eradicating this regressive practice in order to guarantee human rights within a framework of collaboration between various institutions of the federal public administration, the federal judiciary and autonomous bodies, with the participation of international human rights protection organizations and the active involvement of Mexican civil society. The steps taken to develop the National Programme were as follows:
•On 25 and 26 April 2019, experts, public officials and representatives of civil society participated in the Colloquium on Torture in Mexico, which was held at the premises of the Ministry of the Interior prior to the start of the work on the National Programme.
•Work on the National Programme on the Prevention and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment began on 30 April 2019 and was completed on 15 October 2019. As part of the process, 18 working meetings were held.
•The institutions involved in the preparation of the programme were the Ministry of the Interior, the Prosecutor General’s Office, the Ministry of Public Security and Citizen Protection, the Ministry of Health, the Executive Commission for Victim Support, the National Commission for the Prevention and Elimination of Violence against Women, the National Institute of Migration, the National System for the Comprehensive Protection of Children and Adolescents, the National Institute for Women, the National Council for the Prevention of Discrimination, the National Institute of Indigenous Peoples, the federal judiciary and the National Human Rights Commission.
•The international organizations and civil society organizations with expertise in this area that also participated actively in the monitoring and creation of the analysis, objectives, lines of action and indicators were the Mexico branch of the Office of the United Nations High Commissioner for Human Rights, the German Agency for International Cooperation, the Miguel Agustín Pro Juárez Human Rights Centre, the FUNDAR Centre for Analysis and Research, the Todos los derechos para Todas y Todos (All Rights for Everyone) National Network of Civil Human Rights Organizations, the Enfoque DH (Human Rights Focus) initiative of the Mexican Commission for the Defence and Promotion of Human Rights, Equis Justicia para las Mujeres (Equis Justice for Women) and Colectivo Contra la Tortura y la Impunidad (Collective against Torture and Impunity).
•On 22 August 2019, in Guadalajara, the Ministry of the Interior held the National Forum on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in collaboration with the Western Institute of Technology and Higher Education, with the aim of ensuring the participation of academics and various relevant actors in the field and strengthening the National Programme.
24.The aim of the National Programme on the Prevention and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which uses a differentiated approach and a cross-cutting gender perspective, is to analyse and identify the impact, modalities, causes and consequences of torture and make it possible to measure the harm caused by torture to the population and to groups that have historically experienced discrimination.
25.The National Programme was based on various inputs provided by institutions at the three levels of government, civil society organizations and international human rights bodies. It also incorporated the recommendations issued by the Committee against Torture and the findings of the alternative report presented to the Committee by civil society representatives and the national survey of persons deprived of their liberty conducted by the National Institute of Statistics and Geography.
26.In the design of the National Programme, lines of action were established around six objectives:
(a)Prevent offences of torture and other cruel, inhuman or degrading treatment or punishment;
(b)Ensure effective investigation and prosecution of offences of torture and other cruel, inhuman or degrading treatment or punishment;
(c)Promote the implementation and application of constitutional, international and legal standards, particularly the General Act on the Prevention, Investigation and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in the administration of justice;
(d)Guarantee comprehensive reparation for victims of torture and other cruel, inhuman or degrading treatment or punishment;
(e)Establish coordination, cooperation and collaboration mechanisms to combat and eradicate torture and other cruel, inhuman or degrading treatment or punishment;
(f)Ensure accountability and the production of data on the right of every person not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.
Evaluation and monitoring of the National Programme
27.An evaluation and follow-up mechanism has been designed with the aim of ensuring constant monitoring of the progress made in implementing measures to combat torture and ill-treatment. It will be led by the Ministry of the Interior and implemented by a monitoring and evaluation committee that will give follow-up to the application of the General Act against Torture by means of reports and the issuance of recommendations based on the information gathered by two committees.
28.The Administration of Justice Committee will coordinate the actions of the federal and state prosecutors’ offices and the federal judiciary. The Executive Committee will be responsible for coordinating the agencies of the Federal Government and public human rights bodies.
Adoption of the National Programme
29.In its leadership of the National Programme on the Prevention and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the Ministry of the Interior, as part of the federal executive branch, must follow the procedures established by the Ministry of Finance and Public Credit for the allocation of budgetary resources.
30.In November 2019, the National Programme was registered with the Ministry of Finance and Public Credit in order to prepare an estimate of the budget required. Steps are being taken to approve the Programme and publish it in the Federal Official Gazette.
31.A number of programming and budgetary areas and units of the Ministry of Finance and Public Credit are currently drafting observations on the Programme.
Priority recommendation 3, paragraph 15 (a), (b) and (c)
Follow-up information relating to paragraph 15 (a) of the concluding observations
32.Article 20 (b) of the Mexican Constitution sets out the rights of any person charged with an offence. Article 16 establishes the procedure for arresting a person and sets out the obligation to immediately record the detention, in full compliance with the terms set out in the National Detention Register.
33.Article 113 of the National Code of Criminal Procedure sets out the rights of persons charged with an offence and regulates the procedure for punishing those who commit the offence of torture and other cruel, inhuman or degrading treatment or punishment. Consequently, it is important that arresting officers and prosecution service officials involved in detaining persons under investigation inform them of their rights and ensure that those rights are respected in a completely legal and transparent manner.
34.The General Act on the Prevention, Investigation and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was published in the Official Gazette on 26 June 2017 and is a matter of public policy in the interests of society. The Act, which is applicable in all areas of national territory, provides that all authorities, within the scope of their competence, must promote, respect, protect and guarantee at all times the right of every person to have his or her personal integrity respected and to be protected from any act of torture and other cruel, inhuman or degrading treatment.
35.It also provides for the criminal offences that can be applied to any person or public servant who engages in conduct amounting to torture and other cruel, inhuman or degrading treatment or punishment.
36.Article 13 of the Act states:
Article 13: Offences of torture or cruel, inhuman or degrading treatment or punishment and related offences shall be investigated, prosecuted and punished in accordance with the rules on responsibility, participation and multiple offences set out in the applicable criminal legislation and the rules on consolidation of proceedings set out in the National Code of Criminal Procedure.
Superior officials shall be regarded as perpetrators of the offence of torture in the terms set out in the applicable criminal legislation.
37.With regard to the investigation of offences of torture, on 19 December 2014 the National Public Security Council agreed to draw up a standardized protocol for the investigation of offences of torture, with the participation of state and federal law enforcement agencies, experts in the field and national and international human rights bodies and organizations.
38.The standardized protocol is a legal instrument that defines the procedures to be followed by the judicial authorities in the investigation of offences of torture. Its aim is to establish policies for action and procedures that are aligned with human rights standards for the investigation of torture and other forms of ill-treatment. The policies are to be applied by public prosecutors, experts and police officers and serve as a guide at the various stages of criminal proceedings in order to ensure an exhaustive investigation of the facts, taking into account the special vulnerability of the victim and the importance of avoiding revictimization, as well as the design of the expert medical/psychological evaluation of possible torture or ill-treatment, which takes up the guiding principles of the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Istanbul Protocol).
39.Given that rights are enforced by the national justice system and that, under article 21 of the Constitution, the prosecution service represents society, the service must always demonstrate its commitment to the pro persona principle, including, but not limited to, the best standards of protection in the investigation of offences of torture.
40.The Federal Criminal Investigation Police also guarantees the fundamental rights of detainees, as evidenced by the preparation of custody reports, which are accompanied by a declaration that the detainee has been read his or her rights, a card displaying the rights of detainees and a report on the detainee’s physical condition. To ensure that these tasks are performed, various courses on human rights have been delivered, as well as training and academic activities offered by, among others, the National Human Rights Commission.
41.In this regard, the Federal Criminal Investigation Police is fully committed to monitoring and enforcing the measures adopted to prevent and punish torture and human rights violations, in accordance with national legislation and international human rights treaties, and taking into account the standards and criteria set out by the inter-American human rights system and national and international human rights bodies.
42.Similarly, the General Office for the Coordination of Expert Witness Services, which provides support to the public prosecutors, judges and other authorities, has taken action to ensure compliance with the principles, procedures and guidelines contained in the Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
43.The Office has work guides, protocols and technical manuals on the specialties of medicine and forensic psychology and a competency-based training manual. Forensic medicine doctors joining the Office at professional expert level B take the initial training course for experts, which has been approved by the Professionalization Council and is aligned with the Master Plan of the Executive Secretariat of the National Public Security System. The course is taught in collaboration with the National Institute of Criminological Sciences and the Criminal Investigation, Police and Expert Training Institute.
44.The topics taught in the above-mentioned training and courses include forensic traumatology, injury mechanisms, forensic medical investigation of torture and the application of the Istanbul Protocol.
Actions of federal prosecutors in cases of alleged torture
45.The Federal Prosecution Service cannot argue that offences of torture are time-barred, since such offences are not subject to a statute of limitations, in accordance with the national regulatory framework and international standards.
46.Investigations of torture offences should be independent and conducted with due diligence – that is, automatically, promptly, impartially and thoroughly. Any action by the authority must be undertaken with the utmost respect for the dignity and rights of the victim.
47.No particular characteristic of a victim can be used as a reason to deny him or her the status of victim or to make light of the pain or suffering that he or she has experienced. Care must be taken at all times to avoid re-victimization.
48.The competent authority must consider any vulnerabilities and apply a differentiated approach and a gender lens to the analysis of the situation in order to provide the necessary protection and other measures.
49.In addition, the Prosecution Service ensures that interviews with victims and witnesses are conducted in suitable settings, with appropriate security and protection measures to safeguard their physical and psychological integrity.
50.The law enforcement agencies investigate torture through dedicated criminal investigation, police and expert units. The public prosecutor who takes up or launches an investigation of torture must not be the same one who is investigating the possible criminal conduct of the victim of torture.
51.As mentioned above, the investigation must be carried out promptly, thoroughly, efficiently, professionally and impartially. It must be free of any stereotypes or discrimination and must explore all possible avenues of investigation allowing the gathering of information to clarify the circumstances surrounding an unlawful act and identify the person or persons who committed it or participated in its commission.
52.If an offence of torture is proven, the public prosecutor transmits the evidence to his or her counterpart who is investigating the offence of which the victim of torture is suspected. Evidence obtained under torture must be found inadmissible, regardless of whether the perpetrators thereof have been punished.
53.Civil servants must provide victims with help, support and assistance from the moment they require it, and respect and uphold the effective exercise of their rights.
54.In cases where responsibility has not been determined or perpetrators are jointly responsible, public prosecutors must ensure that all the elements of probable responsibility are taken into account. They must analyse each aspect of responsibility and participation in line with the regulations in force, including those explicitly set out in criminal legislation and those deriving from responsibility in the exercise of duties, such as commission by omission.
55.Victims are entitled to an expert medical/psychological evaluation as part of the investigation of torture. The evaluation is performed by an independent expert accredited by the Prosecution Service, who will have access to the case file in order to assess the expert reports contained therein.
56.In a clear manner and using simple language, the authorities involved in the process must inform the victim, from the outset, of the nature of the procedure and the progress made, as well as how any information provided will be used. Officials who conduct or assist with torture investigations must study the reports, observations, recommendations and judgments addressed to Mexico by international human rights bodies.
57.The results of torture investigations must be made public in accordance with constitutional principles and binding jurisprudence. Public prosecutors are made aware of cases of torture in a number of ways, as described below:
(a)An investigation begins when an offence is reported. The offence is brought to the attention of public prosecutors in one of two ways:
(i)By means of a complaint made by the victim or by any person, body or organization who believes an offence of torture has taken place;
(ii)Automatically, on the basis of police reports, court hearings or any form of communication from an authority.
(b)If a person in the custody of the State shows signs of having been subjected to torture, an investigation is automatically launched.
(c)For the purposes of criminal proceedings, an offence is considered to have been reported if, in a case of torture, the burden of proof is reversed and rests with the State.
58.If the Prosecution Service receiving the complaint is not equipped to conduct a specialist torture investigation, it must refer the case to the relevant unit. Care must be taken to ensure that the public prosecutor to whom a torture case is assigned is not identified in the complaint as being the alleged perpetrator and that he or she does not have a direct relationship with the persons accused of torture.
59.In the event of multiple offences or multiple offences committed as a result of a single act (for example, rape, sexual abuse, abuse of authority and homicide), the Prosecution Service provisionally classifies the acts as torture for the purposes of investigation, as well as any other offences that may have been committed. It immediately orders the relevant reports (medical and psychological evaluation, comprehensive report of results) from the General Office for the Coordination of Expert Witness Services, as well as site inspections, statements and all other necessary steps to prove that an offence has been committed. Once an offence has been proven, the public prosecutor launches criminal proceedings.
60.In torture investigations, the Federal Prosecution Service declines jurisdiction on the grounds of the specialized nature of the case and refers it to the Special Unit for the Investigation of the Offence of Torture of the Prosecutor General’s Office, in accordance with agreement A/006/18, published in the Federal Official Gazette on 26 January 2018.
Measures taken by the Federal Public Defender Service
61.On 7 January 2020, a protocol to be applied by public defenders attached to the agencies of the Federal Prosecution Service prior to the prosecution of cases was published in the Federal Official Gazette. The purpose of the protocol is to establish the procedures that public defenders from the Federal Public Defender Service who are attached to the agencies of the Federal Prosecution Service must follow from the time they are appointed to defend persons brought before the prosecution service for the commission of an unlawful act until such time as a decision is taken on whether to prosecute the case.
62.The protocol is a tool for public defenders and brings together obligations established in both national and international regulations, including those described below.
Right to receive legal assistance free of charge
63.Under article 2 of the Federal Public Defender Service Act, the public defence service is free of charge.
Right to receive legal assistance without delay
64.The protocol states that once a request has been made for representation of a detained person, a defender must immediately locate him or her. The defender must find out whether the person is physically present at the relevant office of the Federal Prosecution Service or has been transferred to another location and must verify that he or she has not given a statement without the presence of a defence lawyer and has not been, or is not being, subjected to torture or ill-treatment.
65.The defender must ensure that the Federal Prosecution Service makes the necessary arrangements for the interview with the defendant to be conducted in a timely manner and in conditions of absolute privacy. If it does not, the defender informs either the director of the office to which he or she is attached or the Director of the Criminal Defence Service, who contacts the hierarchical superior of the relevant prosecution service so that the necessary measures can be taken to give effect to this right.
66.The defender must verify that the prosecution service has ensured that no officials have questioned, interviewed or otherwise had access to the detained person prior to the interview with the defender. If they have, the officials are asked to record this fact.
67.Once the privacy conditions have been met for the defence to communicate with the represented person, the public defender must identify himself or herself as such. At a minimum, the public defender must instruct the detained person not to give an interview or provide any information without the presence of a defence lawyer or before receiving the relevant legal advice, inform the detained person of his or her rights and tell him or her to request the defender’s presence for all judicial proceedings. The public defender must also make the detained person aware that the defence service is free of charge and ensure that the detainee signs a confidentiality agreement.
Right to request and obtain immediate access to an independent doctor, in addition to any medical examination that may be conducted at the authorities ’ behest
68.The protocol provides that once the public defender is designated and appointed, he or she must review the investigation file to ascertain the conditions under which the arrest was made. The defender must then ensure that the detainee is examined by a forensic doctor and receives immediate medical or psychological care if required. A medical examination must take place, with the detainee’s informed consent, within 12 hours of the arrest, and a second examination must be conducted not later than 12 hours after the detainee’s appearance before the prosecution service.
69.If the defendant is injured, the report must contain a detailed description and colour photographs of all injuries. The report must also state whether the detained person has known mental health issues.
70.If the forensic doctor’s respective medical reports are not issued within 12 hours of the detained person’s arrest and within 12 hours of the detainee’s appearance before the prosecution service, the public defender must record this fact and, if any injuries are not recorded in colour photographs, must request that the corresponding photograph be taken immediately and attached to the medical report. In addition, the public defender must ensure that if the detained person wishes, he or she can be examined by a doctor of his or her own choosing.
71.In addition, the public defender verifies, objectively and by examining the records of the investigation, that the detained person is not intoxicated. If the detained person is unconscious, no accusatory proceedings can be conducted until the recovery time indicated in the medical report has elapsed and a doctor has certified that the person is able to communicate coherently and consistently.
Right of detainees to be informed of the reasons for their detention and the nature of the charges against them in a language that they understand
72.The protocol states that the public defender must ensure that before the detained person makes his or her statement, the prosecution service provides him or her with information on the relevant rights. The explanation must be imparted effectively, in understandable and simple language, and officials must answer any questions the person asks.
73.The public defender must make efforts to ensure that these rights are upheld in a meaningful way; for example, the reading of rights must be conducted by the prosecution service and the corresponding explanations provided. In the case of persons with a hearing impairment, the public defender must ensure that the prosecution service provides the necessary reasonable accommodation for the person under investigation. The public defender must make a record of this, including the name and signature of the detained person. If the person is unable to sign, the reason must be indicated and he or she must provide a fingerprint (thumb or index finger).
Right of detainees to inform a family member or another person of their detention without delay
74.The protocol states that the public defender must ensure that the detained person’s right not to be held in incommunicado detentionand to make a telephone call is upheld. The public defender must also ensure that the person has the opportunity to inform his or her family or any other relevant person of his or her whereabouts.
Right of detainees to have their detention recorded in a register and to challenge the legality of their detention before a court
75.The protocol states that the public defender must examine the official account of the conditions under which the arrest was made. For this purpose, he or she must request copies of the standardized police report and official statements in order to verify whether, according to this account, the arrest was carried out in accordance with the Constitution and the Code. This entails, at a minimum, the following steps:
(a)Checking that the standardized police report states the date, time, location and circumstances of the offence, the time of the arrest and of arrival at the facilities of the relevant prosecution service, the reason for the arrest and the number of the arrest record, in accordance with article 20 of the National Act on Detention Registers;
(b)Obtaining an account of the circumstances of the arrest from the person under investigation, with a view to corroborating the official version on the basis of the detainee’s testimony and/or all relevant data or evidence (such data or evidence should therefore be collected and/or the relevant investigative acts requested);
(c)Checking whether the person was informed of the reason for the arrest at the time of the arrest;
(d)Checking that any items seized are the same ones presented and that the relevant chain of custody exists and has not been broken at any stage (identification, preservation, packaging, labelling, transfer and traceability);
(e)Checking the reason for arrest invoked by the prosecution service in the first proceedings;
(f)Bringing any inconsistencies identified to the attention of the federal prosecutor and requesting that the detention should not be confirmed or that the public defender’s assessment should be examined at the hearing before the due process judge.
76.In addition, the protocol stipulates that the public defender must ascertain, from the order launching the investigation, the date and time at which the person under investigation was made available to the prosecution service, with a view to ensuring that the arrest took place at the time indicated by the prosecutors. To that end, it is important to check the standardized police report and the arrest notice. Where appropriate, the public defender must check that if the situation of flagrante delicto has been invoked by the prosecution service, it is relevant to the specific case.
77.Additionally, the public defender must check the information entered in the National Detention Register against the version presented by the arresting officers and/or the prosecution service, in order to detect any irregularities in the detention or the recording thereof.
Follow-up information relating to paragraph 15 (b) of the concluding observations
78.Some of the steps taken to strengthen public defence agencies are detailed below.
79.In 2019, the Federal Public Defender Service was restructured. The changes included the creation of four Technical Secretariats working in the areas of gender equality and vulnerable groups, inter-agency cooperation, community outreach and prevention of torture and cruel and inhuman treatment. The restructuring is intended to strengthen the substantive units, including those to which public defenders or legal advisors are assigned and those with personnel engaged in litigation functions, expert analysis and the monitoring and evaluation of services.
80.The purpose of strategic litigation is to give effect to the human rights of a person or social group and thus generate changes in the pursuit and delivery of justice. Consequently, the Strategic Human Rights Litigation Unit was created with a view to changing the approach to the administration and delivery of justice and imbuing it with a social vision.
81.The Unit is responsible for designing a legal policy that will make it possible to bring cases before the Supreme Court and international bodies in order to give rise to new human rights standards, in accordance with the powers of the Federal Public Defender Service. Its objective is to identify relevant cases or strategic litigation that merit direct representation by the Unit. Such cases or litigation may consist of complaints of conflicting holdings decisions, reviews of direct amparo proceedings or other matters requiring a relevant judgment or ruling by the Supreme Court of Justice on constitutionality or compliance with conventions.
82.In addition, given the specialized nature of legal assistance and criminal defence, and in order to ensure effective control, the Legal Assistance and Criminal Defence Coordination Unit was reorganized into two separate services, namely the Criminal Defence Unit and the Legal Assistance Unit.
Improvements in the support provided to users of the Federal Public Defender Service
83.Initial advice sessions are intended to reduce consultation times to a maximum of 15 minutes for persons coming to the Service for the first time. They consist of a rapid analysis by a legal professional to establish whether the matter is within the competence of the Service.
84.To ensure a professional and high-quality service, on 29 August 2019 the Director of the Service established a mandatory appointment system for follow-up sessions on matters being processed, to avoid users having to wait unnecessarily.
85.Institutional assistance can be provided to any authority requesting a service on behalf of a user. If the matter falls outside the competence of the Service, a referral is made to the competent authority, avoiding delays in receiving assistance.
86.Defensatel is a priority project for the Service. It is intended to optimize the criminal defence and legal assistance services it provides and to make referrals to the relevant competent authorities through the use of a toll-free number.
87.The Federal Public Defender Service provides criminal defence services for all persons who are investigated for an act likely to constitute an offence, as well as those who are prosecuted or who are serving a sentence. It guarantees access to justice at all times for those who need it most.
88.The Service’s general rules have been amended with a view to strengthening the technical skills of public defenders to ensure their participation, from beginning to end, in the criminal proceedings in which they are involved, enabling them to intervene at any stage of the proceedings and providing certainty to users about the support available and the continuity and quality of service.
89.As part of the new working methods within the Service, and in order to improve the quality of criminal defence services and give full effect to the principle of adversarial procedures, modifications were made to the regulations governing the functions of officials who assist public defenders in carrying out substantive legal work, such as obtaining evidence, and some tasks previously performed by employees are now done by the Service’s computer systems.
90.Officials are authorized to collect evidence by means of, inter alia, conducting interviews, obtaining footage from surveillance cameras and searching for information, without causing a disturbance. In order to ensure that detainees know their public defenders and meet them at least once a month, the Service is implementing two initiatives:
(a)Remote meetings: in addition to prison visits at least once a month, public defenders conduct remote meetings to provide continuous monitoring of their clients, keep them informed of the progress of their proceedings and provide them with relevant legal advice. In the first ordinary session of the Board of Directors, on 28 January 2020, the Service’s general rules were amended to allow for remote meetings with detainees; previously, the rules made provision only for face-to-face meetings, which required coordination between public defenders so that visits would be carried out by the defender located closest to the relevant detention facility;
(b)Private communication between defender and client, and additional call to Defensatel: the Service prepared a proposal for a collaboration agreement with the decentralized administrative body responsible for prevention and social rehabilitation. That body is currently reviewing the proposal. The proposed agreement includes two initiatives that would enable the Service to exercise its powers of criminal representation:
(i)Using the decentralized body’s Televisitas remote meetings system to enable defenders to meet with their clients online;
(ii)Authorizing persons deprived of their liberty in federal facilities run by the decentralized body to make an additional call to Defensatel, thereby guaranteeing them timely communication with their defence counsel.
91.Under the aforementioned agreement, in the first phase the Service would use the body’s technological infrastructure to hold videoconferences. In the second phase, the Service would use the Televisitas remote meetings system to conduct videoconferences from the Service’s offices or the facilities assigned to it in Federal Social Rehabilitation Centres.
92.This method of remote communication will revolutionize the public defence system by enabling defenders and their clients to have timely and ongoing contact without the need for transfers or the involvement of other defenders who make support visits to prisons.
93.The Service also has public defenders specializing in the enforcement of sentences. Their role is to safeguard and defend the rights of persons who have been convicted, such as the right to pre-release benefits and the right to dignified prison conditions.
Support for persons in vulnerable situations
94.The Service also provides criminal representation services to indigenous persons, who require special protection because of their vulnerable situation. The Service seeks to provide a defence using an intersectional approach which takes into account the various challenges faced by such persons. The Service’s bilingual staff members speak 142 language variants.
95.In this regard, in a joint initiative with the National Institute of Indigenous Languages, a process was launched to certify the indigenous language skills of the Service’s bilingual staff, with a view to upholding the right to an adequate defence for indigenous persons. In addition, the Service has three employees (two public defenders and one legal adviser) who can communicate in Mexican Sign Language.
96.In order to safeguard the rights of adolescents accused of offences, the Service has specialist public defenders who are aware of the assistance they need. These specialists can nevertheless also work in the adult criminal justice systems, according to the needs of the service.
Mobile units providing legal assistance in federal and local prisons
97.The staff of the Service established a system of mobile units in federal and local prisons with the aim of providing the prison population with free legal defence and advisory services in criminal, civil, administrative and family matters and with regard to the enforcement of sentences. These services are provided by the Service’s public defenders and legal advisers.
98.The institutionalization of a procedure carried out by the Service on a regular basis facilitates the internal organization of the mobile units. It has also made it possible to involve staff working in the areas of strategic human rights litigation, combating torture and comprehensive support for vulnerable groups, in addition to staff working on criminal defence and legal advice, thereby enhancing the exercise of the Service’s remit.
99.The involvement of more staff in the mobile units has made it possible to identify those cases which deserve special attention, either through an intersectional approach, strategic litigation or criminal complaints, because of the human rights aspects involved or the possible commission of acts of torture.
100.During 2019, civil servants from the Service made 38,289 visits to Federal Social Rehabilitation Centres to provide timely follow-up in criminal defence services. In addition, the mobile units provided assistance in 5,508 instances.
101.Lawyers were automatically appointed to help older persons, persons belonging to indigenous communities and persons with chronic illnesses obtain the pre-release benefits to which they were entitled. In the 85 cases in which lawyers have been appointed to process pre-release benefits, 10 individuals have secured their release.
Combating torture and other cruel, inhuman or degrading treatment or punishment
Technical Secretariat tasked with combating torture and cruel and inhuman treatment, within the General Directorate
102.On 25 June 2019, the Federal Public Defender Service created a Technical Secretariat within the General Directorate to undertake various activities including coordination, supervision, monitoring, advocacy, research, analysis and follow-up of institutional responses to acts of torture and other cruel, inhuman or degrading treatment or punishment.
103.The heads of the Service’s offices were asked to instruct its staff working in the various areas of public defence to submit monthly information on such matters to the Technical Secretariat so that it can maintain up-to-date oversight in accordance with the Secretariat’s Guidelines on the preparation of updated files on acts of torture and other cruel, inhuman or degrading treatment or punishment.
104.In this regard, during 2019, 410 complaints and 29 legal appeals were filed with national and international bodies on behalf of victims of torture and ill-treatment.
Working Group on Combating Torture
105.On 19 August 2019, a Working Group on Combating Torture was set up, with the involvement of civil society organizations. The aim of the Working Group, which is coordinated by the Technical Secretariat, is to contribute to the formulation of national strategies and comprehensive responses to torture and other cruel, inhuman or degrading treatment or punishment.
106.Following the creation of the Working Group, in which 24 civil society organizations participated, a number of litigation strategies were planned, implemented and coordinated. The Working Group upgraded the technical skills of approximately 100 of the Service’s staff members who work on issues relating to torture and human rights.
Forensic Science Unit
107.Following the approval of the new general rules by the Board of Directors, on 30 October 2019 it was established that the Forensic Sciences Unit would provide its services to all offices and units attached to the Service, in order to meet the institutional challenge of improving the quality of public defence.
108.To that end, a Forensic Specializations Manual was drafted for public defenders and administrative officials and distributed within the Service. The Manual contains a general description of the first 10 specialist services provided by the Unit, as well as a glossary of terms. In addition, 13 thematic booklets were distributed on the following topics: first responders, chain of custody, criminology, fingerprinting, document analysis, ballistics, handwriting analysis, forensic medicine, chemistry and toxicology, forensic genetics, forensic entomology, psychology and ethnopsychology.
109.The Forensic Science Unit covers 18 specialties: social anthropology, forensic ballistics, forensic science, criminology, fingerprinting, document analysis, forensic entomology, ethnopsychology, forensic photography, forensic genetics, handwriting analysis, road traffic incidents, forensic medicine, forensic dentistry, polygraphy, forensic psychology, forensic chemistry and forensic toxicology.
Monitoring and evaluation
110.The Service has processes in place to monitor and evaluate its staff. Monitoring is an essential component of the career civil service. It provides direct information about how the Service’s public defenders and legal advisers perform their duties and ensures that they comply with procedural and administrative rules.
111.As part of the monitoring of professional staff, interviews are conducted with users of the service or their family members and with defendants who are deprived of their liberty. The purpose of the interviews is to ascertain whether such persons are satisfied with the service provided and, where necessary, to record any concerns they have or complaints they may wish to make against staff members.
112.Monitoring is a valuable tool for learning about, documenting and dealing with any acts of corruption and making the Service’s management team aware of them in a timely manner.
113.Under the evaluation procedure, quantitative parameters are established to measure the performance of public defenders and legal advisers and assess their legal knowledge. The results of the evaluation have a direct impact on the assignment and retention of staff and the incentives offered to them.
Strengthening the career civil service
114.In order to strengthen the career civil service and align the related provisions with the new institutional processes, in an ordinary session on 25 June 2019, the Board of Directors approved the Guidelines for the Selection of Public Defenders and Legal Advisers of the Federal Public Defender Service, abrogating the previous version adopted on 7 October 1998.
115.On 27 September 2019, the call for candidates for the internal selection process for promotion to the position of defender was posted on the Service’s official website. Following the completion of all stages of the process, no applicants had obtained the minimum number of points required for promotion. The General Directorate then wrote to the supervisors inviting them to participate in the selection process for promotion to the category of defender.
116.On 17 December 2019, the announcement of restricted competitive process No. 1/2020 for the selection of public defenders of the Service was published in the Federal Official Gazette, in a national newspaper and on the Service’s website. More than eight years had passed since the previous selection process for public defenders.
117.As a commitment to gender parity, and following the workplan set out by Chief Justice Arturo Zaldívar for the period 2019–2022, for the first time in the history of the Service a competitive process for the selection of public defenders was opened to women only. The announcement of the process was published in the Federal Official Gazette, in a national newspaper and on the Service’s website on 17 December 2019.
118.Classroom-based academic activities in the specializations of criminal defence and legal assistance concluded on 15 November 2019. Distance-learning and virtual modules concluded on 30 November 2019. A total of 391 individuals graduated from the courses, 311 of them with a specialism in criminal defence.
Inter-American Public Defender
119.In 2019, the Inter-American Association of Public Defender Services appointed a public defender from the Federal Public Defender Service to act as Inter-American Public Defender for the litigation of cases before the Inter-American human rights system, where appropriate.
Follow-up information relating to paragraph 15 (c) of the concluding observations
120.On 27 May 2019, the National Act on Detention Registers was enacted. The Act is intended to regulate the operation of the Register and the recording of entries and establish procedures to monitor how detention is handled by the authorities.
121.The Register is a database containing national information on persons detained under the powers invested in the authorities during criminal or administrative proceedings before municipal or civic judges. It is administered and operated by the Ministry of Public Security and Citizen Protection on the basis of the relevant provisions and forms part of the National Public Security Information System, the aim of which is to prevent violations of detainees’ human rights, as well as acts of torture, cruel, inhuman and degrading treatment or enforced disappearance.
122.The databases contained in the Register may be used by public security institutions for statistical and intelligence purposes and for the design of criminal policies, in accordance with the guidelines issued for that purpose by the National Information Centre and in accordance with the applicable laws.
123.The Ministry of Public Security and Citizen Protection will operate a consultation system that will make it possible, through the use of technological tools, to consult a public version of the information on detentions carried out by public security institutions, in accordance with the applicable regulations. The detention registration number assigned in the system will also be viewable for the purpose of monitoring detainees at any stage of the criminal or administrative process until they are released by the competent authority.
Priority recommendation 4, paragraph 27 (b)
Follow-up information relating to paragraph 27 (b) of the concluding observations
124.Mexico has professional medical and health experts attached to the Prosecutor General’s Office who are responsible for carrying out the corresponding studies and analyses. These experts have the experience and training necessary to apply the Istanbul Protocol and respect at all times the human rights of the alleged victims of the crime of torture.
125.The Expert Services and Forensic Sciences Unit of the Ministry of Defence conducts physical and psychological assessments in accordance with the Istanbul Protocol and guarantees the application of the principles set out therein.
126.In 2019, 860 officials received training, delivered via workshops, conferences, seminars, videoconferences, talks and diploma courses, on the subjects of torture and other cruel, inhuman or degrading treatment or punishment, arbitrary detention and the Istanbul Protocol.
127.In addition, 6,235 military doctors participated in a training programme to improve knowledge of human rights and international humanitarian law and a videoconference on the Istanbul Protocol last year. The Army and Air Force Studies Centre delivered a workshop on forensic research and documentation under the Istanbul Protocol to 16 people per year in 2019 and 2020.
128.As for the judiciary, the Strategic Human Rights Litigation Unit of the Federal Public Defender Service has two staff members who conduct medical assessments based on the Istanbul Protocol. Both staff members have a certificate of specialization in forensic medicine and have taken various courses relating to the medical investigation of torture and other cruel, inhuman and degrading treatment or punishment.
129.One of the staff members has qualifications in surgery and homeopathy from the National Polytechnic Institute and in forensic medicine from the Autonomous University of the State of Mexico and is certified by the Mexican Council for Legal and Forensic Medicine. The staff member has also attended courses on the prevention of torture, the application of the Istanbul Protocol and forensic science and the adversarial criminal justice system delivered by civil society organizations and the National Human Rights Commission.
130.The other staff member has qualifications in surgery and midwifery from the National Polytechnic Institute and in forensic medicine from the National Autonomous University of Mexico, is certified by the Mexican Council for Legal and Forensic Medicine and has completed undergraduate studies in criminal investigation and forensic science. The staff member has attended two seminars on forensic medicine delivered by the Mexican Council for Legal and Forensic Medicine and the Mexico City Ministry of Health, as well as the course on the Istanbul Protocol offered by the National Institute of Criminal Sciences. Between August 2019 and May 2020, the staff members issued six medical opinions under the Istanbul Protocol.
131.As established in the Protocol, they identified themselves as experts in the field of forensic medicine attached to the Federal Public Defender Service. Great importance is placed on making the user aware of how the examination will be conducted and the tools that will be used. Informed consent is also important and the specialists explain this to the user and ensure that the user’s defender is present at the time. In all cases, the consent document is attached to the reports issued, together with the photographic documentation of the examination and the user’s signed statements.
132.With regard to the methodology applied, the specialists carefully and systematically apply their knowledge of collecting preliminary medical observations, the parameters established in the Istanbul Protocol and the Protocol’s general premises. They employ the scientific methods described below:
(a)Deduction, to obtain specific and timely knowledge of possible acts of torture or ill-treatment committed against the person being represented;
(b)Analytics, studying each of the significant elements of the case individually;
(c)Synthetics, re-evaluating as a whole the elements uncovered between the outset of the analysis and the conclusion of the examination in order to formulate conclusions regarding consistency between the physical injuries observed, both at the time of the facts and at the time of the examination, and the account of the person being represented;
(d)Description, documenting in detail each of the individual relevant findings.
133.This process ensures that each of the quality and objectivity parameters required under the Istanbul Protocol are comprehensively addressed, while also guaranteeing the technical and scientific validity and reliability of the conclusions.
134.In the issuance of the corresponding opinions reflecting the data obtained in the examination of the person and of the available medical documentation on the history and medical background of the person, a deductive and analytical method is used. The method includes the following steps:
(a)The introduction of the forensic expert responsible for the examination and an account of their expertise in the field;
(b)An account of the matter submitted by the public defenders and/or legal advisers of the person being represented;
(c)A description of the methodology used (namely the scientific methods mentioned above);
(d)A detailed account of the medical material that formed the basis of the report;
(e)An account of the background to the claims;
(f)A verbatim transcription of the account given by the person during the examination and interview with regard to possible acts of torture and other cruel, inhuman or degrading treatment or punishment;
(g)An account of the person’s medical history, including, inter alia, any inherited conditions and personal and pathological history;
(h)A description of the most frequent forms of torture encountered in the context of the person represented and possible connections with the medical history;
(i)The results of the physical examination;
(j)The conclusions, which reflect an overall analysis of the information contained in the document;
135.The photographs, images, diagrams, sketches or printouts of examinations conducted or any other support material used in producing the report are attached as annexes.