REPORT Nº 9/97
March 12, 1997
In this report the Inter-American Commission on Human Rights (the
Commission) will consider the admissibility of the case under reference,
in view that the United
Mexican States (herein "the State" or "Mexico") has
repeatedly stated that said case should be declared inadmissible because
the petitioners have not exhausted the remedies under domestic law.
According to the information presented before the Commission on
June 9, 1995, by the petitioners, on June 2, 1990, while the Otomí
Indian Manuel Manríquez San Agustín was working as a mariachi in the
Plaza Garibaldi in the Federal District, several individuals requested
the services of his group. Once
inside the pick-up truck that they usually used for transportation, the
individuals in question forced them to lie face down and drove them to
the Office of the Public Prosecutor, where they forced them to get out
of the truck blindfolded. They
indicate that they knew later that the individuals who had arrested them
were agents of the Federal District Judicial Police, that the arrest was
illegal and arbitrary since there was no arrest warrant, and that there
was no proof nor was it even suggested that Manuel Manríquez had
committed the crime he was later charged with.
They add that once inside the Office of the Public Prosecutor,
the officers tortured Mr. Manríquez to get him to confess to the murder
of Armando and Juventino López Vásquez.
Based on this confession, and taking notice thereof even though
it had been retracted by the detainee, the Thirty-Sixth Criminal Judge
charged him with the crime of murder and sentenced him to 27 years in
prison, which decision was upheld by the Eleventh Criminal Division of
the Superior Court of Justice, and then the appeals filed against it
were denied by the First Three-Judge Criminal Court of the Federal
District, by the Ninth Division of the Superior Court of Justice of the
Federal District, and by the First District Court for Criminal Matters
on October 15, 1992, August 31, 1994, and January 27, 1995,
respectively. At present,
Manuel Manríquez San Agustín is being held in the Santa Marta Acatitla
Penitentiary, serving the sentence he was imposed.
PROCEEDING BEFORE THE COMMISSION
On July 12, 1995, the Commission, pursuant to Article 34 of its
Regulations, forwarded the pertinent parts of the petition to the State
and asked it to provide information on the facts alleged and any other
information that would help it determine whether in this case all
domestic remedies had been exhausted, for which purpose it was given a
period of 90 days.
On October 6, 1995, the State requested an extension of 30 days
to assemble the documentation necessary to make an adequate response;
the Commission acceded to this request on October 10, 1995.
On November 7, 1995, the State requested a second 30-day
extension to gather information for an adequate response; the extension
was granted by the Commission on November 8, 1995.
On December 7, 1995, the State presented its response regarding
the case in progress.
On December 14, 1995, the Commission forwarded to the petitioners
the pertinent parts of the State's response regarding the case.
On January 29, 1996, the petitioners requested a 30 day extension
to prepare comments on the State's response, as they were waiting for
relevant information; on January 31, 1996, the Commission granted
On March 7, 1996, the petitioners forwarded to the Commission
their comments on the response of the State.
March 21, 1996, the Commission sent the State the pertinent parts of the
April 29, 1996, the State forwarded its final comments to the
May 22, 1996, the petitioners sent the Commission additional information
on the case under reference.
June 10, 1996, the Commission forwarded to the State the additional
information submitted by the petitioners.
July 8, 1996, the State sent the Commission its comments on the
additional information provided by the petitioners.
October 9, 1996, a hearing was held to discuss aspects related to the
admissibility of the case.
POSITION OF THE PARTIES
Position of the Petitioners
petitioners maintain that there has been an unwarranted delay, since the
process of investigating the torture suffered by the accused has been
extremely slow and drawn-out. They
add that the pretrial investigation process began on November 17, 1992
-—two and a half years after the incidents occurred—- and it took
more than 3 years to issue the respective arrest warrants, a delay not
based on any excessive conscientiousness in the investigation, since,
for most of the time, the investigation was discontinued.
stated that the Office of the Attorney General for the Federal District
declared itself incompetent on December 17, 1992, forwarding the case to
the Office of the Attorney General of the Republic, which refused
jurisdiction and remanded the case on January 27, 1993, no investigation
has occurred to this date, denoting unwillingness to investigate and
clarify the case.
add that the National Commission of Human Rights, in its recommendation
35/94 of March 17, 1994, determined that Manuel Manríquez San Agustín
was the victim of torture and arbitrary and prolonged detention,
pointing out the need to conclude the investigation into these
incidents, institute the corresponding criminal action, request arrest
warrants, and ensure their immediate service.
also point out that it was not until the petition was submitted to the
Commission that the investigations into the torture went forward and
some results were obtained, such as the arrests of some of the officers
responsible for the torture; however, as yet, Mr. Manríquez has not
been indemnified nor materially or morally compensated for the
violations of which he was the victim, as the action against the police
officers for inflicting torture has also been delayed, inter alia by
the declaration of incompetence issued November 29, 1995 by the 63rd
Judge of the Federal District.
to Articles 5.2 and 8.3 of the American Convention, the use of torture
is prohibited and any information obtained by using such methods must be
barred as evidence, including not only torture but any other form of
coercion. In the case under
reference, it was proved that torture was inflicted, which the Office of
the Public Prosecutor itself admits; consequently, said confession must
be barred as evidence.
also stated that according to the principle of presumption of innocence
established in Article 8.2 of the Convention, any individual who is the
subject of a criminal investigation must be treated as innocent so long
as his guilt has not been proven; thus, if there is any doubt concerning
the individual's guilt, it must lead to acquittal.
Accordingly, they add that Mr. Manríquez continues to be
deprived of liberty for the crime of murder, in which the only proof of
his involvement in the crime is a confession to the investigative
police, obtained through torture.
they stated that it is the State's duty to investigate criminal charges;
therefore, it is the State which should have investigated and collected
evidence, not the accused. Moreover,
as the State itself points out, the accused has exhausted all legal
remedies available for petitioning the courts to reject as evidence the
confession obtained through torture; however, all of his efforts have
Position of the State
State affirmed that, under the Mexican legal system, establishment of
the subjective element of the crime and the liability of the accused
requires full and direct evidence giving rise to direct charges against
specific persons, which specify circumstances of place, time, and method
of execution of the criminal act. Contrary
to the allegation of the petitioners, the judiciary found that evidence
other than the confession and the documentary evidence substantiate the
involvement of Manuel Manríquez in the crime for which he was
further states that according to the supposed violation of the Principle
of Presumption of Innocence in the proceeding alleged by the
complainant, no violation of the individual guarantees embodied in
Articles 16 and 20 of the Political Constitution of the United Mexican
States is established or suggested, because in fact the competent
judicial authority applied said legal precept throughout the proceeding
in accordance with Article 8.2 of the Convention; only at the conclusion
of the proceeding was the guilt of the accused established, based on the
evidence presented by the Office of the Public Prosecutor in the
investigative stage of the proceeding.
State also maintains that in accordance with Recommendation 35/94, the
Office of the Attorney General for the Federal District conducted the
pertinent investigations, at the end of which it concluded that the
investigative police officers, Fernando Pavón Delgado and José Luis Bañuelos
Esquivel, exceeded their authority and committed acts of torture against
Mr. Manríquez San Agustín. On
November 15, 1995, said office issued the corresponding complaint to the
63rd Criminal Court, which drew up the respective arrest warrants, which
were served November 24, 1995 by the Office of the Attorney General for
the Federal District.
State believes that in the petition in question, the remedies under
domestic law have not been exhausted, since a criminal trial is in
progress against the investigative police officers, in addition to which
the petitioner has not exercised the right to receive compensation
through the Office of the Public Prosecutor pursuant to Article 20 of
the Constitution, which establishes as an individual guarantee the right
of a victim "to be compensated for damages, when appropriate."
the State maintains that there was no unwarranted delay in the
investigation carried out by the Office of the Public Prosecutor, as the
pace of the inquiries was consistent with the need for an exhaustive and
meticulous investigation such as the one conducted in this case:
therefore the exception referred to in Article 37(2)(c) of the
Regulations of the Inter-American Commission is not applicable.
Considerations regarding the competence of the Commission
Commission is competent to hear this case as the pleas concern rights
recognized and established in the American Convention: Article 1.1 on
the obligation of the State to respect and guarantee the rights of
persons subject to its jurisdiction; Article 5, on personal integrity;
Article 7 on the right to personal liberty; Article 8, right to judicial
guarantees; and Article 25, right to judicial protection, as provided
for by Article 44 of said Convention, to which Mexico has been a party
since April 3, 1982.
Considerations regarding the formal requirements of admissibility
petition under reference satisfies the formal requirements of
admissibility set forth in Articles 32, 37, 38 and 39 of the Regulations
of the Commission. In fact,
the petition contains information on the petitioners, an account of the
alleged facts, an indication of the responsible State, and detailed
information on the exhaustion of remedies under domestic law.
In addition, the petition was lodged within the time allotted for
its presentation, it is not pending in another international proceeding
for settlement, nor is it substantially the same as a petition pending
or previously examined and settled by the Commission.
the requirement of exhaustion of domestic remedies, Article 46.1.a. of
the American Convention states that "admission by the Commission of
a petition or communication lodged in accordance with Articles 44 or
45" shall require "that the remedies under domestic law have
been pursued and exhausted in accordance with generally recognized
principles of international law."
2 of said article states that the provisions on the exhaustion of
remedies under domestic law shall not be applicable when:
the domestic legislation of the state concerned does not afford
due process of law for the protection of the right or rights that have
allegedly been violated;
the party alleging violation of his rights has been denied access
to the remedies under domestic law or has been prevented from exhausting
there has been an unwarranted delay in rendering a final judgment
under the aforementioned remedies.
petitioners have stated that the pretrial investigation began on
November 17, 1992--two and a half years after the incidents
occurred--and that it took more than three years for the respective
arrest warrants to be issued.
this regard, the State contended that there was no unwarranted delay in
the investigation conducted by the Office of the Public Prosecutor, as
the pace of the inquiries was consistent with the need for an exhaustive
and meticulous investigation, which culminated with the arrest and
criminal prosecution of the investigative police officers, Fernando Pavón
Delgado and José Luis Bañuelos Esquivel.
this subject, the Inter-American Court of Human Rights has stated that
"the rule of prior exhaustion should in no case lead to resistance
or delay until international action becomes futile."
Commission has also stated in this regard that "the right to a
hearing within a reasonable time, as established by the American
Convention, is based, inter alia, on the necessity of avoiding
unwarranted delays which result in an abridgement or denial of justice
injurious to persons alleging the violation of rights protected by said
records show that more than 6 years have passed since the incidents
occurred, and that it was not until 1995 that the respective warrants
were issued for the arrest of the alleged torturers, and, to date, no
judgment has been delivered concerning them.
Thus, the Commission believes that a period of more than 6 years
constitutes an unwarranted and unusual delay in the investigations and
proceedings, especially when it is alleged that the victim was sentenced
to punishment depriving him of his liberty for a crime confessed under
Commission also wishes to state that it recognizes the progress made in
the investigation of the incidents of torture and in the prosecution of
the alleged perpetrators thereof, which is yet another indication of the
willingness of the Mexican authorities to comply with the
recommendations of the NCHR. However,
the Commission believes that in the case under reference, the reasonable
time established in Article 8 of the Convention has been exceeded.
Commission also believes that the records contain sufficient proof that
there is no appeal that can be filed seeking reconsideration of the
decision whereby Manuel Manríquez San Agustín was convicted, an issue
which the State has never disputed.
the foregoing reasons, the Commission concludes that the exception to
the exhaustion of remedies under domestic law established in Article
46.2.c of the Convention is applicable to this case and, therefore,
exempts the petitioners from complying with said admissibility
on the foregoing considerations, de facto and de jure,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
declare admissible the claim presented in case 11.509, pursuant to
Articles 46, 47 and 48 of the American Convention.
transmit the present report to the State and to the petitioners.
place itself at the disposal of the parties concerned, pursuant to
Article 45 of the Commission's Regulations, with a view to reaching a
friendly settlement of the present case. The parties shall notify the
Commission, in writing, of their wish to accept the friendly settlement
procedure, within the thirty (30) days following notification of the
continue its consideration of the questions of law raised in the present
publish the present report in the Annual Report to the General Assembly
of the OAS.