Committee against Torture
Concluding observations on the seventh periodic report of Mexico *
1.The Committee expresses its appreciation to the State party for agreeing to follow the optional reporting procedure, as this allows for a more focused dialogue between the State party and the Committee. It nevertheless regrets that the periodic report (CAT/C/MEX/7) was submitted almost one year late.
2.The Committee appreciates the constructive dialogue held with the State party’s delegation and the additional information provided during the consideration of the report (see CAT/C/SR.1724 and SR.1727).
3.The Committee welcomes the following legislative measures taken by the State party in areas related to the Convention:
(a)The publication, on 26 June 2017, of the General Act on the Prevention, Investigation and Punishment of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which, among other things, establishes the absolute prohibition of torture, sets forth a harmonized national definition of the offences of torture and ill-treatment, stipulates that torture is not subject to the statute of limitations, reaffirms the inadmissibility and nullity of evidence obtained through torture, and prohibits the granting of pardon, amnesty or immunity to persons prosecuted or convicted for acts of torture;
(b)The publication, on 17 November 2017, of the General Act on Enforced Disappearance of Persons, Disappearance Perpetrated by Individuals and the National Missing Persons System;
(c)The publication, on 16 June 2016, of the Federal Act on the Enforcement of Criminal Penalties, which establishes a complaints mechanism for persons deprived of their liberty, and judicial oversight of conditions of detention;
(d)The publication, on 9 January 2013, of the General Victims Act, as amended on 3 January 2017, and the publication, on 28 November 2014, of the regulations to the Victims Act.
(e)The publication, on 15 August 2016, of the Decree amending article 11 (2) of the Constitution, which establishes the right to seek and be granted asylum (“refugio”);
(f)The publication, on 13 June 2014, of the Decree amending, repealing and supplementing several provisions of the Code of Military Justice, which amends article 57 of the Code to exclude cases involving civilian victims of human rights violations from military jurisdiction.
4.The Committee notes with appreciation the steps taken by the State party to modify its policies and procedures in order to afford greater protection of human rights and to apply the Convention, in particular:
(a)The establishment in 2015 of the Special Unit for the Investigation of the Crime of Torture of the Office of the State Attorney General (now the Office of the Prosecutor General);
(b)The adoption in December 2014 by the Supreme Court of the procedural protocol for justice administrators in cases concerning acts qualifying as torture or ill-treatment;
(c)The creation in 2015 of the Office of the Special Prosecutor for the investigation of the crime of enforced disappearance;
(d)The establishment in 2016 of the Unit for the Investigation of Crimes against Migrants of the Office of the State Attorney General (now the Office of the Prosecutor General) and the establishment of the Mechanism for Mexican Support Abroad in Search and Investigation Activities to coordinate the investigation of crimes against migrants;
(e)The publication in July 2017 of the findings of the national survey of persons deprived of their liberty, carried out in 2016 by the National Institute for Statistics and Geography, in application of article 29 (3) of the Federal Act on the Enforcement of Criminal Penalties;
(f)The adoption in October 2018 of the Harmonized Protocol on the Investigation of Offences against Freedom of Expression, by the fortieth Plenary Assembly of the National Conference of State Attorneys General;
(g)The establishment in 2015 of the National System for the Comprehensive Protection of Children and Adolescents;
(h)The full entry into force in June 2016 of the criminal justice system reform launched in 2008, which has entailed the transition from an inquisitorial to an adversarial system of criminal justice;
(i)The publication on 30 April 2014 of the National Human Rights Programme 2014–2018;
(j)The publication on 30 April 2014 of the National Programme on the Prevention, Punishment and Eradication of Trafficking in Persons and on Victim Protection and Assistance 2014–2018, and the establishment of complaints mechanisms, including the Citizens’ Complaint and Help Centre and a telephone helpline;
(k)The publication on 30 April 2014 of the Comprehensive Programme to Prevent, Address, Punish and Eradicate Violence against Women 2014–2018;
(l)The establishment on 8 January 2014 of the Executive Commission for Victim Support, the adoption in 2015 of the model of comprehensive health care for victims, and the adoption of the Comprehensive Victim Support Programme 2014–2018;
(m)The creation, by presidential decree on 4 December 2018, of a truth and justice commission for the Ayotzinapa case, and the signature on 8 April 2019 of an agreement between the Ministry of Foreign Affairs and the Office of the United Nations High Commissioner for Human Rights (OHCHR) on the provision of advisory and technical assistance to the commission;
(n)The conclusion on 9 April 2019 of a framework agreement between the Government of Mexico and OHCHR whereby OHCHR will provide advisory services and technical assistance to the National Guard on training in human rights and in operating in accordance with international human rights standards;
(o)The constitutional reform and the publication, on 14 December 2018, of the Organic Act on the Office of the Prosecutor General, with a view to overhauling the country’s prosecution services;
(p)The publication on 16 June 2016 of the National Act on the Comprehensive Juvenile Criminal Justice System.
5.The Committee appreciates the State party’s request on 6 March 2018 for publication of the report of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on its visit to Mexico in December 2016 (CAT/C/OP/MEX/2).
6.The Committee also appreciates the fact that the State party maintains a standing invitation to the special procedure mechanisms of the Human Rights Council, which has allowed independent experts to conduct visits to the country during the reporting period.
C.Principal subjects of concern and recommendations
Pending follow-up issues from the previous reporting cycle
7.In paragraph 27 of its previous concluding observations (CAT/C/MEX/CO/5-6), the Committee requested the State party to provide information on the follow-up given to a number of recommendations whose implementation it considered to be a matter of priority. These recommendations were set forth in paragraph 9 on fundamental legal safeguards; in paragraph 10 (d) on keeping custody logbooks; and in paragraph 16 (a) on mechanisms for monitoring and oversight of the State party’s security forces and agencies. While noting the replies submitted by the State party on 10 February 2014 under the follow-up procedure (CAT/C/MEX/CO/5-6/Add.1), the Committee considers that the recommendations contained in paragraphs 9 and 10 (d) have not been implemented (see paragraphs 15 and 16 of the present document) and that the recommendation contained in paragraph 16 (a) of the previous concluding observations has been only partially implemented (see paragraphs 23 and 24 (a) of the present document).
Incidence of the use of torture in the State party
8.While noting the delegation’s statement that torture is not a State policy and is not a widespread practice, the Committee is very concerned about the situation observed by several international human rights mechanisms during their respective visits to Mexico during the period under review, in particular the visits of the United Nations Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment in 2014 (A/HRC/28/68/Add.3, para. 23, and A/HRC/34/54/Add.4, para. 21), the Inter-American Commission on Human Rights and its Rapporteur on the Rights of Persons Deprived of Liberty in 2015 (OEA/Ser. L/VII Doc 44/15 and press release No. 116/15, respectively) and the United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2016 (CAT/OP/MEX/2, para. 20). Other concerns include the findings of the 2016 national survey of persons deprived of their liberty and the alternative reports submitted by a number of non-governmental human rights organizations and civil society associations, which document a very high incidence of torture and ill-treatment, including sexual violence, particularly on the part of members of the security forces and investigating officers during arrest and in the early stages of detention (arts. 2 and 16).
9. The State party should:
(a) Unequivocally reaffirm its support for an absolute prohibition of torture and ill-treatment and state publicly that any person committing acts of this kind or being found to be otherwise complicit or acquiescent in them will be held personally responsible for those acts before the law and will be subject to criminal prosecution and appropriate penalties;
(b) Ensure that the national survey of persons deprived of their liberty is conducted on a regular basis and that the survey findings are published.
Definition of the offence of torture
10.The Committee considers the new definition of the offence of torture introduced by the General Act on Torture (arts. 24 and 25) to be broadly in line with the provisions of article 1 of the Convention, although it is concerned that it does not explicitly address acts of torture committed with the aim or purpose of obtaining information or a confession from a third person or acts intended to intimidate or coerce persons other than the victim (art. 1).
11. The Committee urges the State party to amend the definition of the offence of torture contained in articles 24 and 25 of the General Act on Torture to expressly include acts of torture committed for the purpose of intimidating, coercing or obtaining information or a confession from a third person.
National programme against torture
12.The Committee regrets that the State party has not yet adopted a national programme to prevent and punish torture and ill-treatment in application of the provisions of articles 69 to 71 of the General Act on Torture. It takes note, however, of the work under way and the consultations held with non-governmental organizations, government agencies and international organizations on 30 April 2019 (art. 2).
13. The Committee encourages the State party to finalize the development and adoption of the national programme to prevent and punish torture and ill-treatment and to allocate the corresponding budget, ensuring that civil society organizations specialized in documenting cases of torture and/or assisting victims are involved, as required under article 70 of the General Act on Torture.
Fundamental legal safeguards
14.While familiar with the provisions of article 20 (b) (VIII) of the Constitution, which stipulates that all persons facing criminal charges have the right to a defence, and with the relevant case law of the Supreme Court, the Committee is concerned about consistent reports indicating that Ministry officials often impede access to legal assistance for persons deprived of their liberty and that public defenders, particularly at the local level, do not always act to address possible abuses committed against their clients while in detention. The Committee is also concerned about reports that persons deprived of their liberty often do not have immediate access to an independent medical doctor and that not all arrests are reported promptly. Furthermore, the Committee is gravely concerned about the data on these and other fundamental safeguards against torture and ill-treatment collected in the 2016 national survey of persons deprived of their liberty. Accordingly, the Committee regrets that the State party has not provided information on the number of complaints filed during the period under review and the procedures in place to ensure that the fundamental safeguards recognized to persons deprived of their liberty under its legislation are respected in practice (art. 2).
15. The State party should:
(a) Take effective measures to ensure that detainees enjoy the benefits of all fundamental safeguards in practice from the outset of their deprivation of liberty, in line with international standards, including, in particular: the right to receive legal assistance without delay and the right to receive such assistance free of charge if necessary; the 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; the right to be informed of the reasons for their detention and the nature of the charges against them in a language that they understand; the right to have their detention recorded in a register; the right to inform a family member or another person of their detention without delay; the right to challenge the legality of their detention before a court; and the right to be brought before a judge without delay;
(b) Strengthen its public defence agencies;
(c) Adopt the national legislation on detention registers envisaged under article 73 (XXIII) of the Constitution, which should be applied in all places of deprivation of liberty.
Review of interrogation and arrest procedures
16.The Committee regrets that, despite its repeated requests, the State party has not provided information about steps taken since the consideration of its previous periodic report to review interrogation rules, instructions, methods and practices and arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment, with a view to preventing torture and other cruel, inhuman or degrading treatment or punishment (art. 11).
17. The State party should ensure the systematic review of interrogation and arrest procedures, in accordance with article 11 of the Convention.
Precautionary detention without charge (arraigo)
18.The Committee regrets that the State party has not removed the provisions permitting precautionary detention without charge (arraigo) from its domestic legislation, although it is aware that a constitutional amendment which, if approved, would repeal these provisions has been drafted. While taking note of the delegation’s explanations about the exceptional nature of this precautionary measure and the decline in its use, the Committee observes that its application allows the judicial authority, at the request of the Prosecution Service, to order the deprivation of liberty of persons suspected of belonging to a criminal organization, without any formal charge being laid, for a period of up to 40 days, extendable up to a maximum of 80, in order to ensure a successful investigation and protect persons or property or if there is a well-founded risk of flight (art. 16 of the Constitution). The Committee recalls that, in its decision in Ramiro Ramírez Martínez and others v. Mexico (CAT/C/55/D/500/2012, para. 17.5), of 4 August 2015, it reiterated its concerns about these provisions of law, especially the lack of monitoring and disproportionate duration of precautionary detention; the use, on occasions, of military facilities for precautionary detention purposes; the complaints of torture made by persons subjected to this form of detention; and the fact that precautionary detention could make it easier to have confessions presumably obtained under torture admitted as evidence (arts. 2, 11 and 16).
19.The Committee reiterates its previous recommendations (CAT/C/MEX/CO/5-6, para. 11, CAT/C/MEX/CO/4, para. 15 and CAT/C/55/D/500/2012, para. 19) urging the State party to eliminate provisions permitting precautionary detention without charge (arraigo) from its legislation.
Confessions obtained as a result of torture
20.The Committee notes the provisions of article 264 of the National Code of Criminal Procedure and articles 50 to 54 of the General Act on Torture, establishing the inadmissibility and nullity of evidence obtained as a result of torture or violations of fundamental rights, and the corresponding case law of the Supreme Court. However, it regrets that it has received no information from the State party about court decisions in which confessions obtained through torture or ill-treatment have been disallowed as evidence. It therefore reiterates its concern about the consistent reports maintaining that the courts do not investigate complaints of this kind and instead shift the burden of proof to the alleged victims. The Committee is also concerned about reports indicating that torture is routinely used to extract confessions and that confessions obtained through torture are invoked against defendants in court as evidence of their guilt. The Committee also recalls the findings set out in the report entitled “Double Injustice”, issued by the Office of the United Nations High Commissioner in Mexico on 15 March 2018, which documents in detail acts of torture and other violations of the suspects’ human rights being committed, tolerated and covered up during the investigation into the disappearance of 43 students from Ayotzinapa in September 2014 and the subsequent trial. In this connection, the Committee notes that the State party has not provided the information requested on progress made in the investigation into the death of Emmanuel Alejandro Blas Patiño, who reportedly died as a result of torture inflicted by members of the Ministry of Naval Affairs after his arrest on 27 October 2014 (arts. 2, 15 and 16).
21. The State party should:
(a) Adopt effective measures to ensure that confessions and statements obtained through torture or ill-treatment are not admitted in evidence in practice, except against persons accused of committing torture, as evidence that the statement was made;
(b) Ensure that, when it is alleged that a statement has been obtained through torture, the allegation is investigated immediately and the burden of proof falls not on the victim but on the State;
(c) Expand training programmes for judges and prosecutors in order to provide them with the skills needed to detect and investigate all complaints of torture and ill-treatment effectively, and, in particular, to build the institutional capacity that will make it possible for them to disallow statements obtained under torture;
(d) Ensure that all law enforcement officers, judges and public prosecutors receive mandatory training emphasizing the link between non-coercive interrogation techniques, the prohibition of torture and ill-treatment, and the obligation of the judiciary to disallow confessions obtained under torture ;
(e) Ensure that penalties are imposed upon judges who fail to respond appropriately to allegations of torture raised during judicial proceedings. Furthermore, the State party should ensure that officials who extract confessions through torture are immediately brought to justice ;
(f) Compile and make public information on criminal proceedings in which judges, either on their own initiative or at the request of parties to the case, have ruled that evidence obtained under torture is inadmissible, and the measures taken in that regard.
Allegations of torture and ill-treatment
22.The Committee regrets that it did not receive comprehensive information from the State party on the number of complaints of acts of torture or ill-treatment registered during the period under review. According to the limited data provided by the delegation, 870 complaints of acts of torture and 360 complaints of ill-treatment allegedly committed by Federal Police officers were made in 2013, compared with 466 complaints of torture and 40 complaints of ill-treatment in 2018. Complaints of alleged acts of torture committed by officials of the Office of the Prosecutor General of the Republic (hereinafter the Prosecutor General’s Office) numbered 42 in 2013, and 32 in 2018. In total, 3,569 complaints (of an unspecified nature) were registered against officials of the National Institute for Migration in 2013 and 1,216 in 2018. With regard to the Ministry of Defence, the State party merely indicates that between 2013 and 2018 the Ministry was the subject of 22 recommendations of the National Human Rights Commission and that 11 of these recommendations related to torture and ill-treatment. Although the delegation affirmed that the training programmes run for federal law enforcement officers had helped to reduce the number of complaints, the Committee has serious reservations about this claim, especially since the State party has not provided any information at all for the period 2014–2017, nor any disaggregated statistical information concerning the complaints made, the bodies to which they were submitted and the institutions that investigated them. The Committee has also not received the requested information on action taken by the State party in response to the 18 recommendations concerning serious violations that the National Human Rights Commission issued during the period under review in connection with cases of torture and ill-treatment, most of which were directed at the National Security Commission, the Ministry of Naval Affairs and the Prosecutor General’s Office. Lastly, the Committee regrets that the State party has not yet established the national register of cases of torture envisaged under the General Act on Torture (arts. 2 and 13).
23. The State party should:
(a) Take the measures necessary to ensure that reporting systems are effective, independent, accessible and completely safe for victims;
(b) Create and continually update a national register of cases of torture, as provided for in the General Act on Torture, and compile and publish statistical data on the number of complaints of acts of torture and ill-treatment registered in all bodies;
(c) Provide information on the steps taken to implement the recommendations of the National Human Rights Commission in cases of torture and ill-treatment.
Investigation of acts of torture and ill-treatment and prosecution and punishment of perpetrators
24.The Committee expresses its concern about the serious shortcomings evident in the investigation of acts of torture and ill-treatment in Mexico, and about the persistently high levels of impunity associated with offences of this kind. According to data provided by the delegation, as at January 2019 the Prosecutor General’s Office had 4,296 preliminary inquiries under way and had opened 645 case files in connection with offences of torture. However, the Committee regrets that it has not received comprehensive information on the number of cases that have resulted in criminal proceedings and the number of prosecutions and disciplinary proceedings initiated for acts of torture and ill-treatment during the period under review. The Committee has also not received the requested information about the workload of staff attached to the Special Prosecutor’s Office. According to the summary information provided by the delegation, the federal courts handed down 45 convictions for acts of torture between 2013 and 2018. However, no information was provided about the status and nature of the convictions or the penalties imposed on the persons convicted. The Committee has also not received information about sentences handed down in state-level courts, although, according to data collected in the 2017 national survey on the administration of justice carried out by the National Institute of Statistics and Geography, there were 3,214 complaints of torture and ill-treatment in 2016 alone but only 8 of them resulted in criminal proceedings (see the 2018 annual report of the National Human Rights Commission). Lastly, the Committee notes the delegation’s explanations regarding the implementation of the Harmonized Protocol on the Investigation of the Crime of Torture but remains concerned about reports indicating that the action taken by the Prosecution Service, as required under the Harmonized Protocol, before passing cases on to the Special Prosecutor’s Office impede access to justice for victims, even though the State party maintains that these measures are designed to ensure that alleged victims receive prompt assistance (arts. 2, 12, 13 and 16).
25. The Committee urges the State party to:
(a) Ensure that all complaints of torture and ill-treatment are investigated in a prompt and impartial manner by an independent body;
(b) Ensure that the authorities open an investigation ex officio whenever there are reasonable grounds for believing that an act of torture or ill-treatment has been committed;
(c) Ensure that, in cases of torture and/or ill-treatment, suspected perpetrators are immediately suspended from duty for the duration of the investigation, particularly when there is a risk that they might otherwise be in a position to repeat the alleged act, take reprisals against the alleged victim or obstruct the investigation;
(d) Facilitate access to justice for victims by providing appropriate legal assistance, including free legal aid where warranted. In particular, the Committee urges the State party to review the content of the Harmonized Protocol in order to guarantee access to justice for victims;
(e) Ensure that the suspected perpetrators of acts of torture and ill-treatment and the superior officers responsible for ordering or tolerating the acts are duly tried and, if found guilty, punished in a manner that is commensurate with the gravity of their acts;
(f) Ensure implementation and enforcement of the provisions of the General Act on Torture, in particular in the investigation and prosecution of acts of torture and ill-treatment. The State party should oversee the establishment and effective operation of all special prosecutors ’ offices so as to ensure their autonomy, the allocation of adequate resources and the training of their personnel;
(g) Ensure that justice officials receive the training necessary to enable them to correctly determine which provision of the Criminal Code is applicable in cases of torture and ill-treatment;
(h) Compile and publish statistics on the number of investigations and prosecutions carried out, convictions handed down and penalties imposed in cases of torture or ill-treatment, at both the federal and the state levels.
Physical and psychological assessment of alleged torture victims
26.While taking note of the publication, on 5 October 2015, of Agreement No. A/085/15 establishing the institutional guidelines to be followed by staff of the Office of the Attorney General (now Prosecutor General) of the Republic when investigating alleged acts of torture, the Committee is concerned about reports that highlight serious deficiencies in the medical and psychological opinions used for the physical and psychological assessment of alleged victims. Information before the Committee attests to significant delays in their issuance by the medical experts and psychologists attached to the Prosecutor General’s Office and a lack of comprehensiveness in these opinions. These issues create doubt as to the impartiality of those issuing the opinions. Reports indicating that it is still usual practice for the courts to refuse to give evidentiary value to assessments conducted by independent specialized medical experts, contrary to article 37 of the General Act on Torture, are another source of concern. The Committee is also concerned about the fact that investigations are automatically discontinued when the medical and psychological opinions are “negative”, that is, when they do not confirm the allegations of torture (arts. 2, 12, 13 and 16).
27. The Committee urges the State party to:
(a) Consider establishing institutes of legal medicine and forensic science that operate entirely independently, based on purely forensic criteria, to assume the responsibilities that the Prosecutor General ’ s Office currently fulfils in respect of the opinions used in the physical and psychological assessment of alleged torture victims and the accreditation of all medical experts and psychologists who use them;
(b) Ensure that all physical and psychological assessments of alleged victims of torture are conducted in accordance with the principles, procedures and guidelines contained in the Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Istanbul Protocol), and that penalties are imposed in the event of irregularities;
(c) Continue to ensure that all relevant staff are specifically trained to identify and document cases of torture and ill-treatment in accordance with the Istanbul Protocol;
(d) Ensure that the reports of accredited independent medical experts and psychologists are accorded appropriate evidentiary value in practice, in accordance with article 37 of the General Act on Torture.
28.The Committee notes the delegation’s announcement of the resumption of work to establish the National Missing Persons System envisaged under the General Act on Enforced Disappearance of Persons and to issue a harmonized protocol on searching for missing persons. With regard to the implementation of the Harmonized Protocol for the Investigation of Offences of Enforced Disappearance of Persons and Disappearance Perpetrated by Individuals, the Committee is concerned that, according to the information in its possession, the draft was not properly discussed with non-governmental organizations prior to its adoption and that civil society deems the consultations to have been insufficient. The Committee regrets that the State party has not replied to reports that allege a lack of diligence in the investigation of cases of enforced disappearance and question the efficacy of existing forensic identification mechanisms. The State party has also failed to provide the Committee either with updated statistical information on the number of cases of enforced disappearance that remain unresolved and the number of human remains that have still not been identified or with the information requested on progress in the investigation into the disappearance of 23 persons in May 2018 in Tamaulipas, allegedly at the hands of federal police officers (arts. 2, 12, 13 and 16).
29. The Committee urges the State party to:
(a) Ensure that cases of enforced disappearance are investigated promptly, effectively and impartially, the alleged perpetrators are prosecuted and those found guilty receive appropriate punishment, and that all victims, including all persons who have suffered direct injury as a consequence of an enforced disappearance, are provided with an effective remedy, including appropriate compensation. In this connection, the Committee reiterates its request for information on the investigation into the disappearances in Tamaulipas in May 2018;
(b) Ensure the efficient operation of the National Missing Persons System, including the electronic records and search tools envisaged under the General Act on Enforced Disappearance of Persons. It should also endow the National Search Commission and local missing persons commissions with sufficient resources to guarantee their effective operation;
(c) Urgently address the issue of unidentified human remains, strengthening State capacity in this area by establishing agencies endowed with sufficient resources, so that all human remains found may be returned to their respective families.
Law enforcement and security
30.According to the explanations offered by the delegation regarding the armed forces’ involvement in security operations to combat organized crime, for the time being, the State party does not consider it possible to relieve the army of its current duties in the field of security. The Committee expresses its concern in this regard, as well as about reports alleging grave human rights violations, including torture, committed by military officers during operations of this kind. The Committee takes note of the recent establishment of the National Guard – a new civilian law enforcement agency that will replace the Federal Police – but is concerned that a military officer who is about to retire has been appointed as the new agency’s chief of operations. It is also concerned about the lack of clarity regarding the rules applicable to the use of force and the identification of members of the security forces and their vehicles (arts. 2, 12, 13 and 16).
31. The State party should:
(a) Ensure that all complaints of excessive use of force, especially lethal force, by law enforcement and military personnel are promptly and impartially investigated, that the suspected perpetrators are prosecuted and, if found guilty, are punished in a manner commensurate with the seriousness of their actions, and that the victims or their families receive full redress;
(b) Publish the numbers of persons killed, injured or detained during law enforcement operations;
(c) Ensure that law and order is maintained, to the greatest extent possible, by civilian rather than military authorities. It should also guarantee that the National Guard is under civilian command in order to preserve its independence;
(d) Adopt the national legislation on the use of force envisaged under article 73 (XXIII) of the Constitution, in accordance with the content of the Basic Principles on the Use of Force and Firearms by Law Enforcement Officials;
(e) Take the measures necessary to ensure that members of the security forces can be properly identified at all times during the exercise of their duties.
Conditions of detention
32.As the delegation acknowledged, the Mexican penitentiary system faces enormous challenges, especially at the state level. The Committee therefore appreciates the efforts made by the State party to reduce overcrowding in federal prisons, as this improves the conditions of detention. However, the Committee remains concerned about reports of overcrowding in a number of state and municipal prisons, such as Chalco, Lerma and Jilotepec prisons in Mexico State. Furthermore, the Committee is concerned at the high number of persons held in pretrial detention, sometimes for extremely long periods of time, and at the fact that not only does the State party continue to apply mandatory (oficiosa) pretrial detention, but that the list of offences incurring this measure, which is contrary to international standards, has recently been extended. The Committee also notes the content of the Federal Act on the Enforcement of Criminal Penalties of 16 June 2016 and the adoption in November 2016 of a series of prison management protocols. It remains concerned, however, about reports of self-rule arrangements, made possible by the lack of custodial staff in many of the country’s prisons, frequent riots resulting in fatalities, violence among inmates and inadequate security measures in some prisons. The Committee is also concerned about acts of corruption by prison officers and other prison staff (arts. 11 and 16).
33. The State party should:
(a) Pursue its efforts to eliminate overcrowding in all detention centres, in particular state and municipal detention centres, primarily by using alternative measures to custodial sentences. In this regard, the Committee draws the State party ’ s attention to the United Nations Standard Minimum Rules for Non-custodial Measures (the Tokyo Rules) and the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok Rules). Work should also be undertaken to make the necessary improvements to prison facilities and urgent measures should be taken to remedy any deficiencies related to the general living conditions in prisons;
(b) Ensure that in practice pretrial detention is not overused or excessively lengthy;
(c) Amend or repeal the constitutional provisions that provide for mandatory pretrial detention for certain offences;
(d) Finalize the establishment of the intersectoral committee that will enable persons deprived of liberty to access the public health system;
(e) Ensure that there are sufficient prison officers and other custodial staff to guarantee security inside prisons;
(f) Take judicial and disciplinary proceedings against officials and other custodial personnel responsible for corruption in the penitentiary system.
34.While noting the enactment on 16 June 2016 of the National Act on the Comprehensive Juvenile Criminal Justice System and the General Act on the Rights of Children and Adolescents on 4 December 2014, as last amended on 20 June 2018, the Committee remains concerned about reports of excessive and lengthy use of pretrial detention for minors in conflict with the law. Also of concern are the treatment of minors deprived of their liberty and the conditions of prolonged solitary confinement observed by the Special Rapporteur on torture during his 2014 visit to the Juvenile Offenders Remand and Rehabilitation Centre in Monterrey (A/HRC/28/68/Add.3, paras. 70 and 71) (arts. 11 and 16).
35. The State party should:
(a) Take measures to ensure the dignified treatment of all minors deprived of their liberty and the maintenance of adequate conditions of detention in juvenile detention centres;
(b) Ensure that pretrial detention is used as a measure of last resort and for the shortest possible period of time, using alternative measures whenever possible (see rule 13 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) and rules 1, 2, 17 and 18 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty;
(c) Observe the prohibition on imposing solitary confinement and similar measures on minors (rule 67 of the United Nations Rules for the Protection of Juveniles Deprived of their Liberty and rule 45 (2) of the United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)).
36.In accordance with articles 41 and 42 of the Federal Act on the Enforcement of Criminal Penalties, temporary solitary confinement as a disciplinary measure should be used as a last resort and for a strictly limited time, with a maximum duration of 15 consecutive days. However, the Committee is concerned at the recommendations issued by the National Mechanism for the Prevention of Torture and the National Human Rights Commission documenting both the imposition of such measures for as much as 30 days and their arbitrary application with no regard for established procedures (see recommendation M-02/2017 of the National Mechanism for the Prevention of Torture, on criminal detention centres under the Government of Guerrero State, para. 23, and general recommendation No. 22 of the National Human Rights Commission, on solitary confinement in penitentiary centres in the Mexican Republic (2015), para. 46). Moreover, in 2016 the Inter-American Commission on Human Rights noted that one of the most common punishments was solitary confinement in small cells and in deplorable conditions, for excessively long periods – even months – and restrictions on visits and calls to relatives (The Human Rights Situation in Mexico, OEA/Ser.L/V/II. 44/15, para. 337) (arts. 11 and 16).
37. The State party should:
(a) Ensure that solitary confinement is used only in exceptional cases and as a last resort for the shortest possible time (no more than 15 consecutive days), and that it is subject to independent review and imposed only with the permission of the competent authority, in accordance with rules 43 to 46 of the Nelson Mandela Rules;
(b) Ensure due process in the imposition of disciplinary sanctions (see rule 41 of the Nelson Mandela Rules). Disciplinary sanctions and restrictive measures may not include the prohibition of family contact (rule 43 (3) of the Nelson Mandela Rules);
(c) Ensure that the general living conditions referred to in that international instrument, including those related to light, ventilation, temperature, sanitation, nutrition and drinking water, among others, are provided for all prisoners without exception (rule 42 of the Nelson Mandela Rules).
38.With regard to persons deprived of their liberty in administrative segregation regimes under the provisions of article 18 of the Constitution concerning preventive detention and the enforcement of sentences for offences of organized crime, the Committee is concerned both about the protracted nature of this regime, under which the prisoners are in their cells for up to 23 hours a day, and about the severe constraints that it imposes on social relationships with other prisoners and contact with the outside world. The Committee is also concerned at reports that a number of federal prisons and prisons of the federative entities have established prison regimes in which prisoners remain in their cells for most of the day in conditions of detention comparable to prolonged solitary confinement (arts. 11 and 16).
39. The State party should ensure that administrative segregation is used only as a precautionary measure, and for a limited time, in line with international standards such as the Nelson Mandela Rules.
Deaths in custody
40.According to the scant official data available, between 2013 and 2018 there were 220 deaths of persons deprived of liberty in federal penitentiaries and 2,531 in penitentiaries of the federative entities. The Committee regrets that the State party did not submit complete statistical information for the entire period under review, disaggregated by place of detention, sex, age and ethnicity or nationality of the deceased, and cause of death. In addition, apart from the 42 riot “incidents” that, according to the delegation, occurred between 2013 and 2018 in the country’s prisons, the State party has not provided information on sudden deaths, including homicide and suicide, in places of detention, nor on the outcomes of the investigations carried out. The State party has also failed to provide the information requested on specific measures taken to prevent the recurrence of similar cases or on any cases in which compensation might have been awarded to the relatives of the deceased. In particular, the Committee is concerned that the State party has not provided detailed information on the investigation into the 49 deaths that occurred in February 2016 during a riot in the state prison of Topo Chico (Monterrey), and the 13 deaths that occurred during a riot in the prison of Cadereyta (Nuevo León), in October 2017 (arts. 2, 11 and 16).
41. The Committee urges the State party to:
(a) Ensure that all cases of death in custody are promptly and impartially investigated by an independent body, with due regard to the Minnesota Protocol on the Investigation of Potentially Unlawful Death;
(b) Investigate any possible responsibility of police officers or prison officials in the death of persons in custody and, where appropriate, duly punish those responsible and provide fair and adequate compensation to family members;
(c) Ensure the security of prisons through adequate training of prison officials and strengthen measures to prevent and reduce violence among persons deprived of their liberty, in particular by introducing appropriate preventive strategies that make it possible to monitor and document such incidents, with a view to investigating all complaints and ensuring that all those responsible are held accountable;
(d) Ensure the allocation of the necessary human and material resources for the proper medical and health care of prisoners, in accordance with rules 24 to 35 of the Nelson Mandela Rules, and review the effectiveness of programmes for the prevention, detection and treatment of chronic degenerative diseases and infectious or contagious diseases in prisons;
(e) Review the effectiveness of strategies and programmes for the prevention of suicide and self-harm;
(f) Compile and publish detailed statistics on deaths in custody in places of detention and the outcomes of the related investigations.
National preventive mechanism
42.The Committee notes with concern reports indicating the limited impact of the monitoring activities of the National Mechanism for the Prevention of Torture and regrets that it has not received additional information on the status of the current reform of the Mechanism, the resources allocated to it, and the degree of cooperation of this body with civil society organizations. It also remains concerned about the apparent absence of oversight activities of the Mechanism in psychiatric institutions and other mental health facilities (art. 2).
43. The State party should:
(a) Ensure, as part of the ongoing reform process, that the National Mechanism for the Prevention of Torture has sufficient resources and the necessary qualified personnel to carry out its work effectively in all types of places of deprivation of liberty, in accordance with the requirements of the Optional Protocol to the Convention;
(b) Ensure effective follow-up and implementation of the recommendations made by the National Mechanism for the Prevention of Torture as part of its monitoring activities, in accordance with the guidelines on national preventive mechanisms adopted by the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT/OP/12/5, paras. 13 and 38);
(c) Encourage cooperation between the National Mechanism for the Prevention of Torture and civil society organizations.
44.While noting the human rights training programmes, especially those related to the prevention of torture, the use of force and the reform of the criminal justice system, designed for members of the various State security bodies, prison officials, immigration personnel, members of the judiciary and staff of prosecutors’ offices, the Committee regrets the paucity of information on the evaluation of their impact on the incidence of torture and ill-treatment in the State party. It is also concerned about the limited information available on training programmes for medical personnel dealing with detainees to enable them to detect and document the physical and psychological sequelae of torture (art. 10).
45. The State party should:
(a) Continue to develop and implement mandatory in-service training programmes and provide the necessary training to ensure that all public servants, in particular police officers, members of the armed forces, judicial officials, prison staff, immigration personnel and others who may be involved in the custody, interrogation or treatment of persons subjected to any form of arrest, detention or imprisonment, are properly acquainted with the provisions of the Convention and are fully aware that breaches will not be tolerated, that they will be investigated and that those responsible will be prosecuted;
(b) Ensure that all relevant staff, including medical personnel, receive specific training to enable them to correctly identify and document cases of torture and ill-treatment in accordance with the Istanbul Protocol;
(c) Provide detailed information on the evaluation of the impact of training programmes on the incidence of torture and ill-treatment in the State party.
46.The Committee appreciates the delegation’s explanations regarding the rehabilitation measures granted to 403 victims of torture and ill-treatment and notes that, between 2014 and 2018, the Executive Commission for Victim Support received 241 requests for compensation for human rights violations, including torture. Pursuant to these requests, the Executive Commission for Victim Support issued 51 comprehensive reparation orders confirming the presence of torture and ill-treatment, among other human rights violations, and processed 217 requests for compensation from victims – 52 of them direct victims and 165 indirect. However, the Committee regrets that the State party has not given complete information on the measures of redress and compensation ordered by the courts and other State bodies and in fact provided to victims of torture and their families during the reporting period, or on the level of cooperation in this area with specialized non-governmental organisations. In addition, the Committee takes note of the recent request by the Executive Commission for Victim Support to the national health system to create a comprehensive, specialized, multidisciplinary treatment and rehabilitation programme to deal with conditions arising from serious human rights violations (art. 14).
47. The Committee draws the State party ’ s attention to its general comment No. 3 (2012) on the implementation of article 14 by States parties, in which it elaborates on the nature and scope of their obligation under the Convention to provide full redress to victims of torture. In particular, the State party should:
(a) Ensure that all victims of torture obtain redress and have an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible;
(b) Ensure that the effectiveness of rehabilitation programmes for victims of torture is continuously monitored and evaluated and that data on the number of victims and their specific rehabilitation needs are collected;
(c) Create commissions to assist victims in those federative entities that do not yet have one; ensure that the Executive Commission for Victim Support and the committees of the federative entities have adequately trained specialized personnel and the necessary material resources for their proper functioning; and consider expanding their existing services and benefits;
(d) Collaborate with civil society organizations in the design and delivery of rehabilitation services;
(e) Ensure that victims have a free choice of services between State and non-State service providers;
(f) Ensure assistance to victims of torture through the implementation of immediate assistance measures and registration in the National Register of Victims.
Detention of asylum seekers and undocumented migrants
48.The Committee notes with concern that the State party continues to rely on the automatic or mandatory detention of undocumented migrants and asylum seekers. Pursuant to section 111 of the Migration Act, the National Institute for Migration has a period of 15 working days to decide on the cases of persons staying in so-called migrant holding centres, extendable to 60 days in certain circumstances. However, in the event of an administrative or judicial appeal, including in relation to asylum applications, the law does not stipulate the maximum duration of administrative detention. Although the law does not provide for the detention of minors in these centres, except for unaccompanied minors, and only in exceptional circumstances, information before the Committee indicates that minors continue to be detained in migrant holding centres that are not equipped to meet their specific needs. The overcrowding and poor material conditions in migrant holding centres, as well as other deficiencies, notably regarding hygiene and food, are also a cause for concern. In this regard, the Committee notes that five migrant holding centres have been closed down and four others, as well as six temporary centres, are at present temporarily closed, having been deemed not to meet the minimum accommodation standards defined in a recommendation issued by the National Mechanism for the Prevention of Torture. According to the explanations provided by the delegation, the Mechanism can carry out monitoring visits to migrant holding centres at any time, while representatives of civil society organizations can gain entry subject to prior authorization. The Committee has received other reports of violence and abuse by immigration officials, including extortion, against persons detained in migrant holding centres and their families and friends (arts. 11 and 16).
49. The State party should:
(a) Review its legislation with a view to repealing the provisions of the Migration Act that require the mandatory or automatic detention of undocumented migrants and asylum seekers;
(b) Refrain from detaining undocumented migrants and asylum seekers for prolonged periods, use detention only as a measure of last resort and for the shortest period possible, and continue using non-custodial measures;
(c) Establish a reasonable legal time limit for the administrative detention of undocumented migrants and asylum seekers who lodge administrative or judicial appeals;
(d) Ensure that minors and families with minor children are not detained solely because of their status as undocumented migrants;
(e) Ensure adequate living conditions in all migrant detention centres;
(f) Ensure that persons held in such centres have access to effective complaint mechanisms;
(g) Investigate possible abuses and acts of violence that may be committed against persons held in migrant holding centres;
(h) Guarantee that persons held in migrant holding centres are informed of their rights, including their right to seek asylum, in accordance with article 109 of the Migration Act;
(i) Ensure that immigration officials and security personnel in migrant holding centres receive proper training;
(j) Provide quality legal aid services to migrants and asylum seekers.
Asylum and non-refoulement
50.The Committee takes note of the data provided by the delegation on the number of asylum applications received during the reporting period, which apparently increased from 912 (concerning 1,296 persons) in 2013 to 29,644 (concerning 59,916 persons) in 2018. According to these data, in 2018 the State party granted refugee status to 1,327 persons, and a further 654 received complementary protection. However, no data are available for the period 2014–2017 on the number of applications accepted because the applicants had been tortured or risked being subjected to torture in their country of origin. The Committee also takes note of the data provided by the delegation on the number of persons returned since 2013, a figure of 715,827 including both deportees and returnees, as well as the additional information provided on the available appeal mechanisms (judicial review, application for annulment, and amparo), although it does not state whether any appeals were lodged or their outcomes. The Committee remains concerned about reports of the detention of asylum seekers at airport border posts in inadequate conditions and without access to the Mexican Commission for Aid to Refugees, with the attendant risk of refoulement (art. 3).
51. The State party should:
(a) Ensure that, in practice, no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would run a personal, foreseeable risk of being subjected to torture;
(b) Guarantee that all persons in its territory or under its jurisdiction have effective access to the procedure for determining refugee status, including those held at airports and other border crossings;
(c) Ensure that all asylum seekers have the opportunity to have their case examined individually and are protected from refoulement and collective return;
(d) Ensure that procedural safeguards against refoulement are in place and that effective remedies with respect to refoulement claims in removal proceedings are available, including reviews of rejections by an independent judicial body, in particular on appeal;
(e) Ensure the establishment of effective mechanisms to promptly identify victims of torture and trafficking among asylum seekers and migrants.
Refoulement to Mexico under United States immigration and nationality law
52.The Committee is concerned about the situation of non-Mexican asylum seekers who are returned by the United States authorities to Mexico pending the completion of their immigration proceedings in the United States, pursuant to section 235 (b) (2) (c) of the United States Immigration and Nationality Act. In this connection, the Committee notes with appreciation the State party’s decision to, inter alia, authorize, on humanitarian grounds and on a temporary basis, the entry of those persons and their stay in the national territory by granting them “leave to remain on humanitarian grounds”, with the right to multiple entries and departures. However, the Committee notes the lack of clarity regarding both the institution responsible for reception of returned persons and the guarantees of non-refoulement to their countries of origin (art. 3).
53. The State party should ensure the adequate reception of persons returned to Mexico under United States immigration and nationality law, and guarantee that they are not returned or extradited to their countries of origin if there are substantial grounds for believing that they would run a personal and foreseeable risk of being subjected to torture. The Committee draws the State party ’ s attention to the Guidance note on bilateral and/or multilateral transfer arrangements of asylum seekers, published in 2013 by the Office of the United Nations High Commissioner for Refugees (UNHCR) (para. 3 (iv)).
54.According to the information supplied by the State party, during the reporting period Mexico provided or accepted diplomatic assurances or similar guarantees in several cases of active and passive extradition. The State party indicates that the minimum standards of such guarantees or safeguards must conform to article 20 B, read in conjunction with article 22, of the Constitution, as well as to the American Convention on Human Rights and the Convention against Torture. The Committee regrets, however, that it has not received detailed information on the monitoring mechanisms or measures agreed in these cases between Mexico and the receiving or returning States (art. 3).
55. The State party should under no circumstances expel, return or extradite a person to another State where there are substantial grounds for believing that he or she would be in danger of being subjected to torture. Moreover, as indicated in paragraph 20 of the Committee ’ s general comment No. 4 (2017) on the implementation of article 3 of the Convention in the context of article 22, diplomatic assurances should not be used as a loophole to undermine the principle of non-refoulement as set out in article 3 of the Convention. The State party should thoroughly consider the merits of each individual case, including the overall situation with regard to torture in the country of return.
The principle of aut dedere aut judicare
56.The Committee notes the information provided by the State party on the inclusion of the principle of aut dedere aut judicare as a jurisdictional ground through an amendment to article 2 (I) of the Federal Criminal Code, of 2007, with the aim of ensuring that the Mexican authorities are able to investigate and prosecute offences committed abroad by foreigners against foreigners in cases where they are required to extradite or prosecute under an international treaty to which Mexico is a party, such as the Convention. In this connection, the Committee notes that, in order for Mexican courts to be able to exercise jurisdiction in such cases, the criteria set forth in article 4 of the Federal Criminal Code must be fulfilled, requiring not only that the accused must be present in the territory of the State party and must not have been definitively tried in the country in which he or she committed the offence, but also that the offence of which he or she is accused must be an offence both in the country where it was committed and in Mexico. Taking into account the delegation’s explanations about the provisions of the Criminal Code that would enable the Mexican courts to exercise jurisdiction when the offence is not provided for in national legislation but is provided for in a treaty ratified by Mexico, the Committee remains concerned that those provisions could create situations of impunity, especially in cases in which the country where the acts of torture were committed is not a party to the Convention, or the crime of torture is not defined in its legislation (art. 5).
57.The State party should consider abolishing the double criminality requirement for the crime of torture and applying the principle of aut dedere aut judicare when an individual suspected of having committed acts of torture abroad is present on its territory and it does not extradite him or her, in accordance with article 5 (2) of the Convention.
58.The Committee is deeply concerned about the number of women murdered in the State party during the reporting period. According to data provided by the delegation, 2,745 femicides were recorded between January 2015 and February 2019 alone. In this regard, the Committee is concerned at the low number of court rulings issued in cases of domestic violence and femicide: 709 between 2011 and 2017, of which 573 were convictions and 136 acquittals. The Committee also notes the information provided by the State party on the measures taken to address the Committee’s concerns regarding impunity for these crimes and the poor implementation of the relevant legal framework by many federative entities. It also takes note of the information provided by the State party on the measures taken by the authorities in response to the cases of femicide recorded in Ciudad Juárez, and on the measures taken to enforce the judgment of the Inter-American Court of Human Rights in the case of Women Victims of Sexual Torture in Atenco v. Mexico and in the cases of Valentina Rosendo Cantú and Inés Fernández Ortega (arts. 2 and 16).
59. The State party should:
(a) Ensure that all cases of gender-based violence, including cases of sexual torture, murders and disappearances of women and girls, and especially those cases involving actions or omissions by State authorities or other entities that engage the international responsibility of the State party under the Convention, are thoroughly investigated, that the alleged perpetrators are prosecuted and, if convicted, are punished appropriately, and that the victims receive redress, including adequate compensation;
(b) Provide mandatory training on the prosecution of gender-based violence to judges, public prosecutors and law enforcement personnel and conduct awareness-raising campaigns on all forms of violence against women;
(c) Ensure that victims of gender-based violence receive the medical treatment, psychological support and legal assistance they require.
60.According to information provided by the delegation, there have been 24 convictions for trafficking at the federal level and 725 in the local courts since 2013. However, no detailed information has been provided on the sentences imposed in these cases. The Committee notes the information provided by the State party on measures taken to ensure that victims of trafficking have access to effective remedies and reparation, but regrets that the requested information on the establishment of mechanisms for identification and referral of trafficking victims who may be detained in migrant holding centres was not provided (arts. 2 and 16).
61. The State party should:
(a) Continue its efforts to prevent and combat trafficking in human beings, in particular by effectively implementing the General Act on the Prevention, Punishment and Elimination of Offences of Trafficking in Human Beings and the Provision of Protection and Assistance for Victims, and providing protection to the victims;
(b) Ensure that cases of human trafficking are thoroughly investigated, that the alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, and that the victims are adequately compensated. It should also ensure that victims have access to effective protection;
(c) Adopt effective mechanisms for the identification and referral of trafficking victims who may be detained in migrant holding centres.
Human rights defenders and journalists
62.The Committee is concerned at the numerous assaults and fatal attacks on human rights defenders and journalists, including beneficiaries of the National Protection Mechanism for Human Rights Defenders and Journalists, during the period under review. While taking note of the measures taken to prevent such attacks and to protect the lives and physical integrity of these persons, the Committee is concerned at reports of a lack of resources and ineffective protection mechanisms. The Committee is deeply concerned about the fact that public servants are listed as the main likely assailants of beneficiaries of protection measures (see annex VII to the State party’s report). It is also concerned at the lack of results in most of the investigations opened into this type of case (arts. 2, 12, 13 and 16).
63. The Committee reiterates the recommendation made in its previous concluding observations (CAT/C/MEX/CO/5-6, para. 14) urging the State party to take the necessary measures to ensure that human rights defenders and journalists are able to carry out their work and activities freely in the State party, without fear of reprisals or attacks. In particular, the State party should:
(a) Ensure that the Protection Mechanism has the human and material resources required for its proper functioning, and ensure that the protection measures it deems necessary are effectively implemented;
(b) Provide prosecutors with the resources and tools necessary to investigate attacks and acts of harassment against human rights defenders and journalists;
(c) Ensure that alleged perpetrators are prosecuted, appropriate penalties are imposed on those convicted, and reparation is provided to victims or their families.
64. The Committee requests the State party to provide, by 17 May 2020, information on follow-up to the Committee ’ s recommendations contained in paragraphs 9 (a) and (b), 13, 15 and 27 (b).