Legalized Injustice 

Executive Summary

This report is motivated by the persistence of torture, intimidation, coercion and all forms of mistreatment that are perpetrated against people detained within Mexico's criminal justice system.Indeed for human rights organizations these are urgent concerns. In our effort to identify possible solutions we have focused on the underpinnings of the problem: the factors that promote or invite torture and mistreatment of detainees.Our inquiry demonstrates that much of the problem is rooted in the practices and procedures of Mexican criminal procedure that are discussed in this report. These practices are particularly troubling because they are broadly speaking “legal” ? in other words, they are either explicitly sanctioned by, or are widely interpreted to accord with Mexican law. Were they aberrations, departures from the norm, our concern would not be as great, and the challenge of eradicating them would perhaps be less daunting. While all violations of the law tend to undermine its credibility, when the law permits or rationalizes actions which should be understood as clearly illegal, and converts them into the ‘normal' by product of the legal process, the damage is even greater. This report attempts to call attention to the depth of the problem and to offer credible suggestions as to how it may be eliminated.

The State’s power to detain—literally, to deprive someone of liberty—is undeniably one of its most awesome attributes. It comes with equally enormous responsibilities: to select carefully the right people to take into custody; to follow the laws and procedures for effecting their detention; to safeguard the detainee’s physical and psychological integrity during detention; and of course, to ensure that an arrest and detention promptly gives way to a fair and transparent process for the determination of guilt or innocence, liberty or further incarceration.

Unfortunately, detention has historically been associated in Mexico with widespread abuses, from physical mistreatment to denial of detainees’ basic procedural guarantees.[1]

Most experts agree that there has been an improvement in the past decade in the situation of detainees and criminal defendants in Mexico. Nonetheless, persons detained and/or prosecuted within the criminal justice system still continue to suffer from physical mistreatment and other abuses, such as demands for bribes, at the hands of the authorities of the Mexican State. In extreme cases, this mistreatment includes torture. Whatever its specific nature, mistreatment is most often used in order to coerce statements from witnesses or defendants for use in subsequent investigations or judicial proceedings. In Mexico, it is not at all clear whether police and prosecutors investigate in order to detain, or vice versa.

The last few years have witnessed considerable debate over the level at which torture continues to occur. As late as 1998, the National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) reported that incidents of torture increased during its reporting period (though, as will be seen below, the CNDH takes the position that torture has since fallen off so sharply that it has ceased to be a priority concern [2]). The UN and OAS human rights bodies have also recently concluded that torture continues to be a serious problem[3] and that most incidents of torture take place in connection with criminal proceedings.[4]

Indeed, both the Inter-American Commission on Human Rights and the UN Special Rapporteur on Torture have published follow-up reports covering events occurring through 1999.[5] The conclusions to be drawn from these reports are that torture persists despite advances in some locations (notably Mexico City), and that impunity remains the rule rather than the exception even where the cases are well documented.[6]

In the face of these findings, some Mexican officials have argued that torture and physical mistreatment have declined so significantly that they are no longer major concerns, having been overtaken by other more prevalent abuses. This is currently the position of the CNDH and its counterpart for Mexico City, the Human Rights Commission of the Federal District (Comisión de Derechos Humanos del Distrito Federal). Officials in the national and Federal District prosecutors’ offices have taken the same view in meetings with the Lawyers Committee.[7] After considering the available evidence, we cannot accept their claim without exception, though we share the perception that the worst cases have become less frequent.[8] We take pains, however, to address the merits of this assertion, because officials who believe the problem is fading must be involved in crafting a solution.

There is no solid statistical information to support the claim that long-standing widespread abuses have become rare. In large part, this reflects the limitations of human rights reporting and documentation systems in, as well as the difficulties inherent in covering a nation so large, populous and diverse in geography, topography, ethnicity and language. In addition, the subject matter—excesses and abuses within the investigative and criminal processes—seems to be at the margins of most investigative efforts. For instance, the CNDH does very little work on abuses occurring within the criminal justice process (In meetings with the Lawyers Committee, CNDH officials expressed concern that such investigations, being interventions in legal processes, would exceed its mandate). Only a very few of the 32 state commissions (including one for the Federal District) devote resources to this issue (two exceptions of which we know are the Federal District Commission and the Jalisco state commission, the Comisión Estatal de Derechos de Jalisco) The state commissions are, for the most part, woefully inadequate for the tasks of monitoring and investigating abuses within the justice system.[9]By their very nature, these commissions, including the CNDH, are essentially passive bodies, relying on the complaints they receive to determine the frequency of particular phenomena. Almost inevitably, this means that a significant percentage of abuses never get reported by the commissions, especially where the local commission is considered unlikely to offer meaningful relief.[10] Perhaps most telling, the CNDH, which is widely—and erroneously—cited as a source of national torture statistics, does not compile or report the data obtained by its much more numerous state counterparts. Despite its name, the CNDH’s jurisdiction is generally limited—with some exceptions—to human rights abuses by federal agents, while the bulk of criminal cases (and hence the potential for the abuses that form the subject of this report) occurs in the state jurisdictions. Acknowledging this limitation, CNDH officials told the Lawyers Committee that representatives from various state commissions and the CNDH have begun to meet, and they hope to develop ways of coordinating their work and harmonizing core methodological criteria.[11] Meanwhile, Mexico lacks a sound national system for collecting and evaluating human rights information.[12]

Even with the limited reporting systems, the numbers suggest a problem that is far from solved. For the 30-month period from January 1998 to June 2000, the CNDH data, which reflect only acts by federal agents, include 51 cases of torture (that is, mistreatment so severe as to fit within the most serious category of physical abuse)[13]—more than one case of torture a month, not counting the actions by state and local officials in the 32 other jurisdictions. At the state level there are numerous indications that the problem remains serious. For example:

• The Human Rights Commission of  Jalisco maintains a general category of physical injuries caused by state agents. In the first seven months of the year 2000, there were 398 such cases registered[14]—more than 58 a month, on average. The data do not indicate which of these cases involved persons in detention (as opposed to others wounded by police under other circumstances), but their sheer quantity is ample testimony that the problem of excessive force by state agents is anything but conquered. In February, the commission’s president asserted publicly that state prosecutors continue to employ torture as a means of investigation. Shortly before those comments, the state’s attorney general resigned amid accusations that he tolerated torture by his subordinates.[15]

• The president of Michoacan’s state commission alleged, as he resigned from his post in February 2000, that he did so because of outside pressure resulting from the commission’s issuance of recommendations in 40 cases of torture between August 1998 and July 1999.[16]

• The human rights commission for Baja California reported in September 2000, that in the 12 previous months, acts of torture had increased by 500 percent. The commission’s president reported that 76 percent of the recommendations issued derived from complaints of illegal detention and/or torture by the judicial police.[17]

• The attorney general for the state of Zacatecas acknowledged in January 2000 that the judicial police[18] continue to use torture regularly. The state human rights commission announced at the same time that it was investigating seven cases of torture.[19]

Individual cases in which prosecutors and/or police coerced confessions also continue to surface throughout the country. A sampling of illustrative cases is included at the end of this report, in the appendices. These cases are not aberrations: they reflect the usual application of the rules of criminal procedure. Our interviews with more than 200 people over the past 18 months have provided convincing evidence that the process, which in these cases led to extreme results, reflects the application of Mexican law as most practitioners currently understand and experience it. In the case of Santos Soto, described in Appendix VI, even the prosecutor who took the confession readily acknowledged that the confession followed a pattern that strongly suggested that the statement had been coerced. Mr. Santos Soto, a defendant in that case who alleged he had been tortured during his detention in Veracruz, had confessed to a murder and a series of other crimes. The unvarying nature of the description of each of the crimes, with the same level of detail in each one, signaled immediately to the prosecutor its involuntary nature. The prosecutor’s immediate matter-of-fact reaction made clear that the such coercion is not a novelty.

In Oaxaca, more than 100 men were arrested by military and police patrols conducting sweeps in areas believed to contain members of the Popular Revolutionary Army (Ejercito Popular Revolucionario, EPR). In 1996 this small armed group carried out seven apparently coordinated attacks in various states. The group claimed its intention was to fight for a revolutionary victory, and it distanced itself, and was distanced from, the better-known Ejercito Zapatista de Liberación Nacional (EZLN) or Zapatista National Liberation Army. Shortly after the EPR’s first armed action, police and military units swept through the area, arresting groups of men and piling them into pickup trucks. Lawyers in Oaxaca and Mexico City who interviewed the detainees and reviewed their statements to the authorities say that the interrogation methods, which included torture, had a very deliberate aim. Detainees alleged that they were beaten into confessing to having themselves committed crimes or to providing names of others who could then be arrested and interrogated. In a number of these cases, detainees were examined by doctors who certified that there was convincing evidence of torture. Detention orders for several other detainees were overturned and these individuals were released when it became clear that the confessions proffered by the prosecutors, which were taken in Spanish without the benefit of interpreters, could not have been properly taken from indigenous defendants who do not speak Spanish. In most of the cases, the defendants spent several years in pretrial detention, as the cases only began to reach verdicts in 2000.[20]

What is more, the prosecution of torture has not increased the legal risks for violators, even with the promulgation of the federal antitorture statute and its numerous state counterparts. Relying on statistics from the Mexican government and the human rights commissions, the UN Special Rapporteur on Torture concluded that “[t]he Public Prosecutors Office rarely prosecutes police in such cases,” and observed that “the few prosecutions that have been carried out have been initiated mainly in response to recommendations of human rights commissions rather than directly by the Public Prosecutor’s Office itself.” Official statistics beg the same conclusion. Between June 1990 and May 1996, there were only two convictions for torture and five for homicide resulting from torture. [21]

Perhaps our deepest skepticism about official claims derives from the subject of this report. The rules and practice of criminal procedure have been—and remain—an open invitation to abuse. Despite constitutional reforms and antitorture statutes, the basic vices of the criminal process[22] persist.[23]This report, which focuses on those vices, offers a set of recommendations intended to address the most serious problem areas.

At first, the problems associated with interrogations might seem surprising; thanks to successive legislative initiatives, Mexico’s substantive laws now outlaw mistreatment of detainees and criminal suspects. They also explicitly prohibit the use of torture or other coercive methods to obtain confessions. These laws are relatively clear and forceful. Their promulgation constituted an important step forward in the protection of individuals against mistreatment and in the promotion of human rights.

Article 20 of the Constitution thus expressly prohibits the torture or intimidation of criminal suspects and provides that such acts will be criminalized. The most important federal statutory norm is the Federal Law for the Prevention and Sanction of Torture (Ley Federal para Prevenir y Sancionar la Tortura), adopted in December 1991. As mandated by the Constitution, it criminalizes acts of public officials that constitute torture. This law has now been duplicated in almost all of the states of the Republic of Mexico

Criminal procedure codes also prohibit the use of coercion as a means to obtain confessions. Both the Federal Criminal Procedure Code (Código Federal de Procedimientos Penales) and the Criminal Procedure Code for Mexico City (Código de Procedimientos Penales para el Distrito Federal)provide that a confession is valid as such only if it is offered without coercion or violence.[24] The Criminal Procedure Code for Mexico City also provides that the Public Ministry should prevent the intimidation or torture of any person detained at the Public Ministry installations.[25]

Generally, Mexico’s formal legal tradition reflects a search, motivated by the historical excesses of colonial-era inquisitions, for the appropriate balances to allow successful prosecution without trampling the rights of innocent defendants.

The perplexing question then, is why are such abuses still a problem?

As noted above, we believe that a significant part of the problem lies with practices that are deeply imbedded in the law and jurisprudence governing Mexican criminal procedure. These have to do with arrest, interrogation and reception of evidence. Not surprisingly, the majority of this report consists of detailed procedural analysis, from the arrest of a suspect to the reception of statements by the trial court. We have analyzed both specific procedural rules, and more general factors that contribute to the problem of mistreatment of detainees. We begin by addressing several general factors, which will help to set the context for the discussion that follows.