Ninety-eighth session
Summary record of the 2687th meeting
Held at Headquarters, New York, on Tuesday, 9 March 2010, at 10 a.m.
Chair:Mr. Iwasawa
Contents
Consideration of reports submitted by States parties under article 40 of the Covenant (continued)
Fifth periodic report of Mexico (continued)
The meeting was called to order at 10:12 a.m.
Consideration of reports submitted by States parties under article 40 of the Covenant (continued)
Fifth periodic report of Mexico (continued) (CCPR/C/MEX/5)
1. At the invitation of the Chair, the members of the delegation of Mexico took places at the Committee table.
2.The Chair invited the members of the delegation of Mexico to reply to the oral questions posed by Committee members at the previous meeting.
3.Mr. Mercado Casillas (Mexico) said that the Government had recently initiated a programme in Ciudad Juárez to include all federal ministries in an intervention plan to tackle the root causes of the violence and rebuild the city’s social fabric. The plan focused on the most vulnerable zones, and citizen participation in its design, implementation, and follow-up was a key aspect of it. It addressed five points, namely, poverty and vulnerability, health, education, creation and recovery of spaces, and opportunities for economic development and employment.
4.The federal Government was committed to improving legal standards to ensure the recognition of women’s right to a life free of violence, to guarantee its exercise, and to establish institutional mechanisms to punish violence and prevent its recurrence. It was a sweeping process aimed at strengthening and consolidating the current system by introducing reforms at every level, including in civil and criminal legislation. The Government was implementing proposals on eliminating discriminatory legislation and amending criminal legislation that impeded women’s access to justice.
5.Mr. Navarrete Gutiérrez (Mexico) said that while the Mexican Government unequivocally condemned violence against women, guaranteeing them a life free of violence was a major challenge. The legislative framework was not yet sufficient to eliminate misogyny. Still, the Government had made efforts to strengthen public policies to change the structural causes of violence. Despite the economic crisis, it had earmarked historic levels of funding, which was reviewed on a quarterly basis, to combat discrimination against women. The establishment of gender units in 12 federal ministries demonstrated that gender equity was a cross-cutting concern. All 31 federative entities had mechanisms in place for the advancement of women and were given federal financial and other support for that purpose. Approximately 900 municipal bodies had been created to deal with gender issues at the local level and a number of initiatives had been established by the judiciary to promote gender equity. Bodies including the Supreme Court of Justice and the Electoral Tribunal had created gender units to train judicial personnel in gender and human rights. While the process was slow, more than 10,500 personnel had been trained since 2007. The Ministry of National Defence had incorporated the gender perspective into the recruitment process for all posts. Gender and human rights subjects had been included in the education curriculum and the salary gap had been eliminated in the military, allowing more women access to mid- and high-level command posts. Women could now attend the exclusive naval military engineering school. The Ministry of National Defence and the Ministry of Naval Affairs had recently published their gender equity programmes.
6.While the law against violence was imperfect, it had taken but two years to implement. Some states were in the process of aligning their legislation with federal law and international treaties. Chihuahua and Chiapas had recently amended legislation in order to provide for the establishment of follow-up mechanisms to the federal gender alert system, which was operational throughout Mexican territory, even in states that did not include it in their legislation.
7.Turning to the issue of the right to life, he said that 18 state constitutions had been reformed to guarantee the right to life; 10 of those states continued to prohibit abortion. Only four states had amended their criminal legislation as a result of the federal constitutional reforms. Local legislative reform did not exempt states from compliance with international treaties or with the standards of national oversight mechanisms, as noted by the Supreme Court of Justice in respect of abortion reform in the Federal District. It was no easy task to apply Official National Standard No. 46 on domestic violence throughout the country and eliminate discrepancies between state legislation and the provisions of the Constitution and/or international human rights treaties. Nevertheless, the Government was committed to promoting the rights of women, in particular their reproductive and sexual rights, and to ensuring their full exercise.
8.Mr. Fernández del Castillo (Mexico) said that jurisdiction over health care had been transferred to states in 1996 when health-care services were decentralized. Although the Ministry of Health had established procedures on how to apply health-care legislation, in particular in respect of services to victims of rape, local authorities were free to implement national recommendations as they saw fit.
9.Mr. Ballados Villagómez (Mexico) said that the Electoral Tribunal had resolved a number of cases involving women’s participation in political life. Regulations to ensure access to political posts had been clarified. A critical review of one case by independent academics was available to the Committee. More women were filing complaints at the federal level; over 50 per cent of the cases heard by the Electoral Tribunal in 2009 had been brought by women. The delegation had provided a list of more than 200 cases in which the Electoral Tribunal had invoked the Covenant during sentencing, and those sentences had been fully disclosed to the Organization of American States and the Inter-American Institute of Human Rights. The Electoral Tribunal had consistently given priority to all interpretations favouring equality of access to electoral rights and the justice system, and had appealed in favour of such cases though current electoral norms did not provide for that. Advances made in guaranteeing the electoral rights of the indigenous population were detailed in the section of the report on article 26 of the Covenant regarding equality before the law and non‑discrimination (CCPR/C/MEX/5, paras. 954 to 957).
10.Mr. Durán Ortegón (Mexico) said that the Government was working to empower indigenous women to exercise their rights. To that end, it had launched a productive organization programme that included training in human rights, the gender perspective, multicultural issues, and sustainability; 70 per cent of the indigenous women participating in the programme had reported a decrease in discrimination as a result of it. Two thirds of the participants had stated that their income had increased and there was evidence that their participation in the family and the community had also increased. More than 1,000 workshops had been carried out to strengthen gender equity, benefiting more than 40,000 indigenous women. It was clear that guaranteeing indigenous rights went hand in hand with effectively combating poverty and marginalization.
11.Ms. Heredia Rubio (Mexico) said that despite major achievements in respect of women’s political participation, much remained to be done. Constitutional reform had guaranteed electoral rights for all citizens and required political parties to ensure that women accounted for at least 40 per cent of their candidate lists for Congress. Approximately 28 per cent of the members of the Chamber of Deputies were women, up from 17 per cent in 2000. The Electoral Tribunal could prosecute cases of non-application of electoral laws and citizens could file complaints with the Electoral Tribunal to protect their political rights. In December 2009, the executive branch had submitted a proposal to continue expanding and strengthening the political participation of all citizens, and other political entities had submitted important proposals in that connection. At least three initiatives slated for discussion in the Senate clearly sought to expand political participation by prohibiting consecutive re‑election of legislators, encouraging direct citizen initiatives and allowing independent candidates to run for office.
12.Mr. Guevara Bermúdez (Mexico) said that the amendment to article 33 of the Constitution confirmed that the final decision on expulsion of aliens rested with the executive branch, which also oversaw the administrative process in respect of the place and duration of detention. Owing to the complexity of the legislative process in Mexico, it was not possible to give a timeline for the completion of constitutional reform, though the Senate was committed to a quick review. The terminology “instruments for their protection” (written reply to question 1 on the list of issues) was intended to distinguish protection of human rights from other legal protection mechanisms. The Government was cooperating with a number of United Nations bodies and was considering the jurisdiction of the Committee on Enforced Disappearances. While compliance was indeed complex, the Government was committed to full compliance with the Campo Algodonero and other sentences of the Inter-American Court of Human Rights. Court decisions had been published in print and on the Internet. The amendment of article 215 of the Federal Penal Code in order to bring it into line with international treaties was one example of the Government’s commitment to adopt legislation in response to all Inter-American Court decisions. Nationwide efforts were under way to harmonize investigation methods with the Minnesota Protocol, and with the Alba Protocol developed to deal with the situation in Ciudad Juárez. In addition, the Office of the Attorney General was creating a DNA database of missing persons.
13.Progress achieved by the federative entities in the field of human rights was uneven but cooperation was being promoted at all levels. Agreements signed by federal and local governments had resulted in human rights studies, human rights programmes in the federative entities, human rights training for security personnel, and the promotion of human rights nationwide. Coordination mechanisms among government bodies facilitated follow-up to reports and recommendations of international bodies, including those of the Inter-American Court of Human Rights and the Human Rights Committee. The Government was working to strengthen relevant mechanisms to expedite local investigations while avoiding irreparable damage to individual rights.
14.Mexico recognized the role of non-governmental organizations (NGOs) and human rights defenders in the promotion and defence of human rights. The National Human Rights Programme 2008-2012 included measures to protect them from violence. The Government had accepted most recommendations of the Universal Periodic Review and of the Human Rights Council, including those related to human rights defenders. A draft plan of action had been written to promote and protect the rights of human rights defenders and to establish and strengthen measures to comply with the recommendations of the Universal Periodic Review. The plan of action encouraged state governments to publish international legal instruments relating to the work of human rights defenders and established and promoted mechanisms for the protection of journalists and human rights defenders. It also included measures to investigate harassment, threats and other crimes against human rights defenders.
15.Mr. Alcántara Martínez (Mexico) said that the Supreme Court of Justice recognized all international human rights treaties ratified by the State. Its recent decision did not affect the precedence of international treaties in the legal hierarchy. That decision was public information and was available on the Internet.
16.Mr. Guevara Bermúdez (Mexico) said that the National Council for the Prevention of Discrimination had reviewed 3,184 cases of alleged acts of discrimination, 1,790 of which involved federal public servants and 3,024 of which had been resolved. Administrative measures had been taken to offer awareness, counselling and training workshops for private companies and federal bodies. All gender-based discrimination, including on grounds of gender orientation and sexual preference, was prohibited by the Constitution. Programmes to promote acceptance of sexual preferences and gender identity, and health-care laws were under review in order to increase access to health care by transsexual and transgender individuals. The National Human Rights Programme 2008-2012 established the obligation to consider transsexual and transgender individuals as legal persons and to implement affirmative action programmes to guarantee access of marginalized gender communities to the workplace. A proposal by the Commission on Government Policy on Human Rights to designate 17 May as the national day to combat homophobia was about to be approved. The Supreme Court of Justice protected anyone who requested a new birth certificate after gender reassignment; Federal District policies accorded similar respect to such individuals. Registered cohabitation of same-sex couples was allowed by law; 96 per cent of those couples were registered in the Federal District. The amended civil code of the Federal District established that same-sex couples could marry and adopt children. The Supreme Court of Justice had denied constitutional appeals to the amendment but was reviewing its decision following an action by the Office of the Attorney General.
17.All homicides were investigated by the Public Prosecutor’s Office, including hate crimes. The Federal District was establishing a prosecutor’s office to investigate crimes related to homophobia, pursuant to Agreement A/02 2010. The State would follow up the Committee’s concluding observations on the fifth periodic report, just as it had followed up the recommendations emanating from the Universal Periodic Review, through its Commission on Government Policy on Human Rights. A subcommittee of the Commission was developing a national human rights education programme to promote and defend human rights and disseminate international human rights treaties, to begin in mid-2010.
18.Ms. de la Madrid (Mexico) said that the number of torture cases did not reflect lack of will or of the ability to apply the principle of prevention of torture. The Government’s commitment was exemplified by the National Human Rights Programme 2008-2012, which included a database of torture cases to detect tendencies and behaviour patterns. The Federal District and the 31 federative entities had offered training on the Specialized Medical-Psychological Opinion for Cases of Possible Torture and/or Maltreatment in public ministries, public safety departments, and all public prosecutors’ offices. Thirteen prosecutor’s offices had pledged to abide by the Istanbul Protocol and/or the Specialized Medical-Psychological Opinion for Cases of Possible Torture and/or Maltreatment and had created legislation on the matter.
19.The Office of the Attorney General of the Republic had issued 172 decisions from September 2003 to December 2009, and had found torture in 34 cases, including nine of physical torture and 11 of psychological torture, the remainder being a combination of the two. From 2003 to 2010, the Office of the Attorney General of the Republic had trained thousands of federal, health-care, and security personnel in the application of the Specialized Medical-Psychological Opinion for Cases of Possible Torture and/or Maltreatment. A second round of training was under way and plans were in place to provide training at seven more prosecutor’s offices. Mechanisms had been established to record medical opinions of torture.
20.Turning to the issue of the burden of proof in torture cases, she said that the presumption of innocence had been incorporated in article 20 of the Constitution following reform of the penal justice and public security systems. The Federal Law to Prevent and Punish Torture was based on the Inter-American Convention to Prevent and Punish Torture and on the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Harmonization had been difficult but was proceeding apace.
21.The Office of the Attorney General of the Republic could become involved in cases of trafficking in persons or violence against women only if the cases were local and federal and involved crimes that had been incited, prepared or committed outside the country and had or were intended to have an influence in Mexican territory, or if the cases were connected to organized crime. The Office of the Attorney General of the Republic was drafting legislative amendments with a view to expanding its jurisdiction to cases that were of interest to society as a whole and in which individual interests impeded prosecution. While most crimes of trafficking in persons and violence against women fell under state jurisdiction, as of 16 February 2010, 389 complaints had been received at the federal level: 51 for trafficking (one involving a federal public servant) and 228 for violence against women. Eight cases of torture, four cases involving organized crime and 16 cases of violence against women had been adjudicated. As of October 2009, two cases of violence against women had been sentenced, one had been for sexual abuse; the remainder were under state jurisdiction.
22.Mexico was harmonizing the definition of enforced disappearance contained in its Federal Penal Code with international standards, in particular those set out in the Inter-American Convention on Forced Disappearance of Persons. The Office of the Attorney General of the Republic, by virtue of Agreement A/317/06, had closed the Office of the Special Prosecutor for Social and Political Movements of the Past and transferred pending cases to the General Coordinator for Investigations of the Attorney General’s Office with no interruption in services. The General Coordinator was investigating 551 cases using advanced technology. Recommendations to reopen the Office of the Special Prosecutor for Social and Political Movements of the Past had not been heeded because cases were being handled by the General Coordinator.
23.The Government was committed to providing a safer environment for journalists and communicators. The National Development Plan 2008-2012 established freedom of expression as a core element of public policy. The Office of the Attorney General of the Republic was working with state authorities to investigate crimes against journalists and to punish perpetrators. The Government would appreciate specific information from the Committee in respect of the 14 cases it had referred to.
24.Mr. Pérez (Mexico) said that even in a state of emergency, rights could not be suspended without the agreement of both the executive and legislative branches (article 29 of the Constitution). The declaration of a state of emergency also had to be approved by Congress, the Government ministries and the Office of the Attorney General of the Republic. A state of emergency had to be limited in time and the measures imposed had to be general in nature. The Law on National Security and its amendment included mechanisms to protect rights. Fundamental human rights had not been suspended in any state for the purpose of preventing crime or facilitating public order. Under article 89 of the Constitution, public security forces were permitted to call on the armed forces for assistance, and the Supreme Court of Justice had confirmed the legality of that provision. Thus, Congress had not changed anything in the Constitution or laws to grant the armed forces greater authority than before the state of emergency had been declared in Chihuahua. Intervention by the armed forces had been limited by the reform of article 57 of the Code of Military Justice. Furthermore, action had been taken to promote a culture of respect for human rights and to regulate behaviour in the armed forces.
25.The penitentiary system was in dire need of attention and therefore the State had begun short- and medium-term actions in 2008. Prisoners could participate in work and technical training programmes, and education, health and sport programmes to support their reintegration into society. The business sector had incentives to cooperate in reintegration programmes that would enable prisoners to earn income and provide reparation to victims. The goal was to create an economically viable and sustainable system. One of the most immediate problems was overcrowding in 231 out of 442 prisons. To address that situation, the Ministry of Public Security had proposed establishing a national information system to aid in the distribution of prisoners, creating new infrastructure with uniform and gender-sensitive federal and state human rights standards, and using alternative approaches such as supervised liberty and early release. Under social aid programmes, persons without sufficient income and those accused of non-serious crimes were exempt from bail.
26.Since every state had its own judicial system, there were huge asymmetries among facilities for women prisoners. Nationwide, 5 per cent of all prisoners were women, and there were 31 different penitentiary systems. Since the National Human Rights Commission recommended that women should not be detained in federal facilities, 263 state facilities housed women prisoners. Some had centres for women only and others were mixed. State facilities were addressing shortcomings in accordance with recommendations and reports citing various aspects of gender inequity. The Islas Marias facility housed 59 women who would soon be released in separate compounds with their families. Although the State was making every effort to align the treatment of children of women prisoners with international human rights standards, currently services varied according to the location of the facility.
27.Mr. Chávez García (Mexico) said that the federative entities were amending their criminal justice systems following the constitutional reform of 2008, which included the Code of Military Justice. The goal was to achieve the objectives of the National Human Rights Programme and to harmonize with international human rights treaties. The right of victims of military tribunals to have access to records was laid down in article 439 of the Code of Military Justice and article 20 of the Constitution.
28.Mr. Thelin said that every State had the right to combat organized crime using the strongest methods available in order to safeguard human rights. He noted the Government’s efforts to counter violence against human rights defenders and its efforts to combat crimes of torture. He would appreciate clarification as to whether there was a constitutional provision or specific reform to the Federal Penal Code invalidating evidence or confessions elicited by force. The shift to the adversarial system should eliminate the need for early confession characteristic of the inquisitorial system.
29.Ms. Chanet said that entrusting the military with the administration of justice in civil matters was a violation of human rights. Since combating military enemies was not the same as maintaining public order, the military should consider offering separate training for personnel assigned to civil demonstrations and disruptions and personnel assigned to combat drug trafficking and organized crime. Neither the question about reservations to the Covenant nor the one regarding Mr. Herrera had been answered. While the delegation did not have to respond immediately, the Committee would welcome replies before it drafted its concluding observations. She would be willing to provide the information she had regarding Mr. Herrera.
30.Sir Nigel Rodley said that the rank of international human rights treaties in the Mexican hierarchy of laws was still unclear. He would appreciate details on how international obligations could prevail over national and state legislation. Did the State party understand that military justice should not be applied in criminal cases involving human rights violations? Why did the military have its own justice system? The State party should be more specific about the burden of proof and describe any initiatives to make audio-visual recordings of interrogations. Lastly, it would be useful to know whether the restructuring of the Office of the Attorney General of the Republic meant that its tasks would no longer include medical forensics.
31.Mr. Bouzid requested additional information about the reported killing of innocent people at police and army checkpoints.
32.Mr. Salvioli said that before the Committee drafted its concluding observations, the delegation should indicate in writing whether international human rights norms were invoked more frequently by the courts as a result of human rights and gender training courses offered to judicial personnel. He was pleased that Mexico was committed to applying Official National Standard No. 46 on domestic violence in all state-level services for rape victims.
33.Mr. Amor requested clarification of the recent decision by the Supreme Court of Justice in that regard, including specific examples of when judges could decide to give precedence to international standards over national law.
34.Mr. Gómez Sánchez (Mexico) said that the right not to be tortured was absolute and incontestable. Confessions obtained under torture were never admissible. The burden of proof was not placed on the accused and judges had ways and means of ascertaining how confessions were obtained. While it was true that, in general, early confession was more valuable because it gave the accused less time to think, it was not absolute. There was no mechanism to control the application of the Constitution or of secondary law by a judge. When interested parties thought a court decision violated a fundamental right guaranteed by international treaties or the Constitution, they could appeal the decision and it could be qualified as null and void.
35.Mr. Natarén Nandayapa (Mexico) said that constitutional reform should result in the de jure and de facto elimination of the inquisitorial system. According to new regulations, which also applied to early confession, only evidence obtained publicly was acceptable. While the new model would not be applied until 2016, Mexico was committed to transforming the system in all federative entities as quickly as possible. The new system was already operating in six states and two more were scheduled to change within a year. The Government had created a specialized agency to offer technical assistance and funding during the process.
36.Mr. López Portillo (Mexico) said that Mexico was working to comply with all sentences of the Inter‑American Court of Human Rights. The Ministry of National Defence was adapting article 57 of the Code of Military Justice to the accusatory system and attempting to make it more conducive to the execution of sentences. It was also exploring ways of harmonizing the Code with the judicial system. Since the reform process was not yet complete, the former system was still being applied in cases currently under investigation. The National Human Rights Commission, had processed over 2,000 complaints and issued recommendations on them, including sentences against military personnel. Other cases had been referred to the military justice system and the Ministry of National Defence.
37.Mr. Castillo Sánchez (Mexico) said that family judges had invoked the Convention on the Rights of the Child over national and local laws in a number of cases, and judges had applied precepts established in the Convention.
38.Mr. Negrín Muñoz (Mexico) said that the National Human Rights Programme was examining ways to expedite withdrawal of reservations to treaties, including the reservation to article 13 of the Covenant, and ratification of international instruments and optional protocols. The Inter-American Court of Human Rights had annulled the reservation to article 14 of the Inter-American Convention on Forced Disappearance of Persons.
39.Mr. Guevara Bermúdez (Mexico) said that the Government was aware of the disappearance of Mr. Herrera and had taken measures to investigate the crime. Meetings had been held with representatives of disappeared persons and their families, and the National Human Rights Commission, the Office of the Attorney General of the Republic, and the Ministry of National Defence had initiated investigations. On 4 March 2010, the Inter-American Court of Human Rights had ordered the Government to take three precautionary measures to protect the victims and still other measures to support their families. A working group was to meet at Ciudad Juárez to begin effective implementation of the measures.
40.Mr. Alcántara Martínez (Mexico) said that he would submit written information on the effect of human rights and gender-awareness training before the concluding observations were drafted. The recent decision of the Supreme Court of Justice had not modified the rank of international treaties in respect of the Constitution and national law. Since the decision was so recent, the text was not yet available. He recommended waiting until the text was available in order to fully understand the opinion of the judges. Amparo was a local procedure that could be challenged in terms of constitutionality and compatibility with international instruments.
41.Mr. Ballados Villagómez (Mexico) said that he would provide written details on rulings in respect of gender equity. The Electoral Tribunal had invoked the gender perspective in its decision on Villareal v. the Party of the Democratic Revolution (Partido de la Revolución Democrática, PRD), declaring that political parties had to be mindful of gender proportions in drawing up candidate lists. When the National Action Party (Partido Acción Nacional, PAN) had challenged proportional representation, it had been instructed to take gender equity into account.
42.Ms. de la Madrid (Mexico) said that when torture was suspected in a confession, the public prosecutor and the defendant’s representative had to investigate it. State attorneys-general, the Ministry of Public Security and the armed forces were familiar with the Istanbul protocol and its definition of torture. The restructuring of the Office of the Attorney General of the Republic did not affect services regarded as technical tools for proving guilt or innocence. The Federal District, the state of Jalisco and the Office of the Attorney General of the Republic made audio-visual recordings of interrogations. The Ministry of National Defence did have a human rights programme; a description of it would be submitted in writing.
43.Mr. Flores González (Mexico) said that the Ministry of National Defence and the Ministry of Naval Affairs were aware of public policies on human rights and wished to work with institutions to help implement them. In collaboration with the National Human Rights Commission, both ministries had been strengthened to address all institutional matters of human rights, provide follow up to the National Human Rights Programme, and address deficiencies. Measures taken by the Ministry of Naval Affairs to regulate the legitimate use of force in accordance with United Nations instruments had been published in the Official Gazette; that information would be submitted in writing to the Committee.
44.The Chair invited the delegation to address questions 14 to 26 on the list of issues (CCPR/C/MEX/Q/5).
45.Mr. Negrín Muñoz (Mexico), replying to question 14 on the list of issues, said that constitutional reform had focused on human rights. Drawing attention to paragraph 152 of the replies to the list of issues (CCPR/C/MEX/Q/5/Add.1), he noted that nearly all articles of the Penal Code had been amended. Implementation of reform was gradual but ongoing. It included modifying the federal and military penal systems, as well as those of all 31 federative entities. Budgetary, publication and training issues also had to be considered. Forty per cent of federal entities had begun to implement reform and 25 states should have completed it by the end of 2012. A number of states conducted oral trials. Constitutional reform of the system should be concluded before 2016.
46.Turning to question 15 on arraigo (CCPR/C/MEX/Q/5), he said that the legal framework was regulated by the Federal Law against Organized Crime annexed to the fifth periodic report. Constitutional reform had made arraigo (short-term detention) an effective means of combating organized crime without violating international human rights standards. It was subject to judicial oversight, including measures to guarantee the prevention of torture. Persons under arraigo were guaranteed due process and had the option of filing a complaint; however, there had been no cases of torture of persons under arraigo.
47.Five reforms relating to the prosecution of military personnel (question 16 on the list of issues) were set out in paragraph 182 of the replies (CCPR/C/MEX/Q/5/Add.1). Careful attention was being paid to prison reform, including the construction of 15 new facilities, with three dedicated to adolescents. Efforts under way to regulate migrant holding centres (paras. 195 to 199 of the replies) included improving conditions at migrant holding centres, implementing geo-localization systems, and providing medical care to women and children. Article 33 of the Constitution had not been implemented for some time and the human rights of migrants and immigrants were respected.