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REPORT Nº 42/00 I.
SUMMARY 1.
On December 23, 1992, the Inter-American Commission on Human Rights
(hereinafter “the Commission” or “the IACHR”), received a complaint
filed by the Fray Francisco de Vitoria Center
for Human Rights (hereinafter “the petitioners”), in which the United
Mexican States (hereinafter “the State,” “the Mexican State,” or
“Mexico”) is charged with international responsibility in the death of
citizen Pedro Peredo Valderrama, because of its failure to investigate the facts
surrounding the case and the resulting impunity of the perpetrators. On November 25, 1993, the Center for Justice and
International Law joined the case as a co-petitioner (CEJIL, hereinafter
included with the “petitioners”); Human Rights Watch/Americas joined as a
co-petitioner on October 17, 1996 (also included hereinafter with “the
petitioners”). The petitioners
allege the violation of several rights enshrined in the American Convention on
Human Rights (hereinafter “the American Convention”); namely, the right to
life (Article 4); to physical integrity (Article 5); to judicial guarantees
(Article 8); to compensation (Article 10); to equal protection of the law
(Article 24); and to judicial protection (Article 25). 2.
The report states that Pedro Peredo Valderrama was murdered on December
20, 1986, in the locality of Xochimilco, Federal District of Mexico, after being
attacked by three persons, who beat him until he became unconscious, and then
shot him three times at pointblank range as he lay on the ground. When the incident occurred, Pedro Peredo Valderrama was in
the company of his brothers Erick and Uriel, who reported to the Mexican
authorities that the brothers Israel Roberto, Pedro Horacio, and Sergio Aguilar
Díaz were the persons who actually carried out the murder, a charge that they
corroborated when they clearly identified these persons during the legal
proceedings. The prosecuting
authority of the Federal District (hereinafter “the Office of the Public
Prosecutor” or “the PGJDF”) started the investigation (preliminary) on
January 26, 1987, with the judicial inspection of the body, and submitted its
findings to the criminal court judge who issued a warrant for the arrest of the
Aguilar Díaz brothers, based on the available information that implicated them
in the crime. These orders were not
carried out until 1996, when Israel Aguilar Díaz was arrested in Switzerland
pursuant to an extradition request from the Mexican State; shortly thereafter,
Pedro Horacio and Sergio were arrested in Mexico.
During the proceedings before the Commission, this body highlighted the
importance of such actions, which were carried out within the framework of the
friendly settlement procedure. At
the date of approval of this report, Israel Aguilar Díaz is still in
prison--although his conviction is still subject to appeal--while the other two
presumed murderers are free. The
petitioners allege that the impunity enjoyed by the presumed criminals is due to
the political influence exerted by the Aguilar Díaz family. 3.
As a result of its analysis of this report, the Commission concludes that
the case meets the requirements for admissibility set forth in Articles 46 and
47 of the American Convention. With
respect to the merits of the case, the IACHR concludes that the State violated,
to the detriment of the relatives of Pedro
Peredo Valderrama, the right to judicial guarantees and to judicial protection
under Articles 8 and 25 of the American Convention, respectively, regarding the
general obligation to respect and guarantee rights, set forth in Article 1(1) of
this international instrument. However,
the IACHR concludes that there are no elements in the record to establish in
this case the responsibility of the Mexican State for violation of the right to
life, to humane treatment, to compensation for the miscarriage of justice, and
to equal protection of the law, as guaranteed by Articles 4, 5, 10, and 24 of
the American Convention. As a
result of these violations, the IACHR recommends that the State conduct a
serious, impartial, and exhaustive investigation in order to determine the
criminal responsibility of all those involved in the murder of Pedro Peredo
Valderrama; and in order to determine whether there are other offenses that
prevented a full investigation and sanctioning of those guilty of the act
described above. Also, the Commission recommends that, as appropriate, the
pertinent legal sanctions be imposed on those guilty of the illegal acts
established. Lastly, the Commission
recommends that the Mexican State adequately compensate the relatives of Pedro
Peredo Valderrama for the violation of their rights.
II.
PROCEEDINGS BEFORE THE COMMISSION 4.
On January 28, 1993, the Commission requested information from the State
on the pertinent parts of the complaint and assigned the number 11.103 to the
case. The response of the State was
received on April 28, 1993, and forwarded to the petitioners, who provided their
comments on July 22, 1993. On
August 19, 1994, the petitioners informed that they had filed a claim with the
Human Rights Commission of the Federal District, but “there was no favorable
response” from that institution. 5.
After the exchange of communications between the parties, whereby the
respective positions on admissibility and merits were defined, the Commission
made itself available to the parties on January 13, 1995 in order to begin the
proceedings described in Article 48(1)(f) of the American Convention.
The friendly settlement proceedings started when both parties gave their
consent in July 1995, and lasted until March 1999, when the petitioners
confirmed their decision to withdraw from these proceedings.
During the friendly settlement proceedings, there was a constant exchange
of information between the parties, and several meetings were held at the IACHR
headquarters and in Mexico. The
most notable progress that occurred within the framework of these proceedings
was the execution of warrants for the arrest of Israel Roberto, Pedro Horacio,
and Sergio Aguilar Díaz in 1996, which resulted in the completion of the
process of extradition to Mexico of Israel Roberto, who had been detained in
Switzerland. 6.
On April 10, 1996, the Commission asked the Mexican State to adopt
precautionary measures to protect the life and physical integrity of the Peredo
Valderrama family, when it was reported that they had received threats. On April 24, 1996, the State informed the IACHR that the
PGJDF took steps to provide surveillance of the family's home.
After the communications received from the parties, the IACHR has not
received any additional information regarding threats made to the Peredo
Valderrama family. 7.
The National Commission on Human Rights (hereinafter "the CNDH")
sent a note to the IACHR on July 2, 1996, that provides information on the
actions taken to carry out the arrest warrants for the Aguilar Díaz brothers.
On August 15, 1996, the CNDH sent a new communication with updated
information. 8.
On October 18, 1996, the Commission informed the parties that it had
decided to suspend temporarily the processing of the case pending the final
judicial decision in the matter. On
December 16, 1996, the IACHR requested updated information on the proceedings
from the Mexican State, which led to an exchange of observations between the
parties. 9.
On October 6, 1997, the parties went to a working meeting at the IACHR
headquarters at which the status of the friendly settlement procedure was
discussed. In its note of December
11, 1997, to the Mexican State, the Commission stated its interest in holding a
meeting in Mexico City in order to make progress in the friendly settlement
proceedings in several cases, including this one.
On January 14, 1998, the State indicated that "it takes the liberty
of proposing that the visit in question be postponed for the time being,"
yet it also noted, on that occasion, that it was interested in making headway at
the Commission's subsequent regular session. 10.
On February 2, 1998, the petitioners asked that the IACHR continue to
take cognizance of this case until the necessary conditions attain for arriving
at a solution based on respect for human rights.
On February 24, 1998, another working meeting was held in Washington,
D.C., with the presence of the parties and the IACHR. 11.
The petitioners reported on April 21, 1998, that Pedro Horacio and Sergio
Aguilar Díaz had been acquitted on April 10 by the judge in the case, and asked
that the State report to the IACHR any steps taken to prevent the case from
remaining in impunity. The Mexican State answered on May 29, 1998, asking that
the IACHR declare that the friendly settlement agreement had been carried out
with the arrest of the Aguilar Díaz brothers. 12.
In their observations of August 18, 1998, the petitioners considered that
the case "is still in a grave state of impunity," and so they asked
the Commission to declare that the State had not carried out the commitments it
took on in the friendly settlement, and to issue a report on the merits.
The State submitted its observations in this regard on September 23,
1998, indicating that "the efforts of the Mexican Government to solve this
case" should not be ignored. 13.
On December 1, 1998, a meeting was held on Mexican cases in which
friendly settlement was being sought, at the offices of the Ministry of Foreign
Relations of Mexico. On that
occasion, timelines were mapped out and meetings scheduled for continuing the
proceedings in this case under Article 48(1)(f) of the American Convention. 14.
During the hearings held on March 1, 1999, at the headquarters of the
IACHR, the petitioners stated their decision to withdraw from the friendly
settlement proceedings and asked the Commission to issue a statement on the
merits. The petitioners forwarded
their final observations on March 1 and 5, 1999.
The State did the same on April 13, 1999. III.
POSITIONS OF THE PARTIES A.
The petitioners 15.
The petitioners allege that the State of Mexico is responsible for
violation of the right to life of Mr. Peredo Valderrama and for the impunity of
the aggressors. They charge that
this situation is the result of a lack of will by the police authorities, who
waited for almost ten years to execute the arrest warrants, and of the violation
of the right to due process that resulted in the acquittal of the brothers Pedro
Horacio and Sergio Aguilar Díaz. 16.
In response to the State's argument on failure to exhaust domestic
remedies, the petitioners argue the following in their communication, which was
received on July 22, 1993: The
assertion that not all domestic remedies (regular) have been exhausted, put
forth by the representatives of the Mexican Government, is unfounded and
contrary to law, if one considers that the legal representative of the victims
is the Agent of the Public Ministry, who is the representative of the interests
of society at large (Representante Social)
and exercises a monopoly over the power to prosecute criminal offenses, as
provided by Article 21 of the Constitution.... It
is obvious that the Public Ministry, under the PGJDF, as representative of
society, is the one who should protect the interests and rights of victims and
take all steps necessary to be able to press criminal charges against the
murderers, for it is irresponsible and criminal to allow one or several
criminals to go free, and that merely by dint of being the children or relatives
of some government official, they have the right to take the life of whoever
they wish, with no fear that the Public Ministry will take any action against
them.
17. As
regards the State's position on reparations: Article
339 of the Code of Criminal Procedure ... indicates as it should that reparation
for damages is to be claimed with the PROCEDURE, and if not claimed there, may
be claimed in a civil proceeding, but once the procedure has concluded, when the
persons tried have been convicted, i.e. that they were found guilty of the
charges made by the representative of society (Representación
Social), for in the event that they were to press claims for reparation for
damages, before the accused were given the guarantee of a hearing, to be heard
and become the losing party at trial, it would be a violation of the guarantee,
and unlawful, for, while it is true that there are sufficient grounds for
imposing criminal liability on the individuals who go by the names of PEDRO
HORACIO, SERGIO, AND ISRAEL AGUILAR DIAZ, it is also true, according to Mexican
law, that they should be subjected to criminal proceedings, for it cannot be
considered that the Mexican Government is asserting that claims for reparations
for damages were not made pursuant to the legal rules cited for causes imputable
to the interested persons, if the criminal proceedings have not been initiated.
[sic] [upper case in the original]
18. In their
communication of May 11, 1994, the petitioners state: As we have been arguing since our initial written submission, in this
case, since our State is required to afford its citizens judicial protection,
offering effective remedies before judges and courts, and must guarantee that
the competent authorities carry out every decision where it has been considered
legal to do so in the exercise of such remedies. Such an opportunity, as has been shown, was not duly afforded by the
Mexican State, due, we repeat, to the negligence of the Public Ministry Agent
under the court, of the Judicial Police personnel, and of the judge in the case,
who by their conduct have kept justice from being done, and in particular have
violated the victims' guarantees of juridical security, depriving them of their
right to have justice done in this case. [sic]
19.
The position of the petitioners vis-à-vis
the proposed friendly settlement was that it should "necessarily include
the execution of arrest warrants for SERGIO, PEDRO HORACIO, AND ISRAEL ROBERTO,
all of them with the last names AGUILAR DIAZ, so as to prevent the consummation
of an act of grave impunity" (emphasis in the original).
The petitioners stated in the communication of October 4, 1995, that
carrying out these orders was "the first step in the friendly settlement
procedure accepted by the parties." They
added, on November 15, 1995, that "the negligence of the Judicial Police
and of the PGJDF, together with the lack of will of the Mexican authorities, has
resulted in impunity in the homicide of Pedro Peredo Valderrama almost nine
years after the crime occurred." 20.
On finding out through the IACHR that Israel Aguilar Díaz had been
arrested in Switzerland, the petitioners said that it was an "extremely
encouraging" development, but that it "is insufficient," which is
why they requested specific information about the arrest and the extradition
proceeding. In the course of the
hearing held October 6, 1997, the petitioners argued that extradition is
"the first step towards reaching a solution in the case," but they are
of the view that it is not the last. In
the same regard, the petitioners stated as follows in their communication of
February 2, 1998: Thanks
to the intervention of the Inter-American Commission on Human Rights, the arrest
warrants, neglected for years, were executed, as it was taken into account that
insofar as the persons responsible for the murder of Pedro Peredo Valderrama are
not punished, the Mexican government is in breach of its international
obligations. Therefore,
we consider it of vital importance that this Commission continue to take
cognizance of the case, so long as the following conditions, necessary for
reaching a settlement of the case based on respect for human rights, do not
attain:
a. That
a fair resolution be issued, in keeping with due process guarantees, and that it
be administered impartially.
b. That
the Mexican authorities make a commitment to ensure that the statements issued
against the Peredo Valderrama family are studied in keeping with the law, and
that at the appropriate procedural moment they be declared unlawful. 21.
The petitioners argue that the judgment of April 10, 1999, that acquitted
Pedro Horacio and Sergio Aguilar Díaz is arbitrary, that it did not take into
account the criteria for weighing the evidence provided for in Mexican
legislation and case-law, and that it was issued under the pressure brought to
bear by the Aguilar Díaz family. In
the hearing held at IACHR headquarters on March 1, 1999, the petitioners
expressed their decision to withdraw from the effort to reach a friendly
settlement, as they consider the time elapsed since the underlying events to be
excessive, especially in view of the impunity that has prevailed in the case.
The petitioners state the following in their correspondence received on
March 6, 1999: Twelve
years and three months have gone by since Pedro Peredo Valderrama was murdered,
and to date the perpetrators have not been duly sanctioned and the relatives
have not been fairly compensated. Five
years and eleven months have gone by since the petitioners have appeared before
the Commission to report the violation of Articles 4, 5, 10, 24, and 25 of the
American Convention and the influence peddling that has prevented those
responsible from being punished, to request guarantees of protection for the
Peredo Valderrama family, as well as … the right to swift justice and to the
payment of compensation for damages. B.
The State
22. In its
initial correspondence related to the case, the State requested a declaration of
inadmissibility because, in its view, there was no proof of acts that violated
the American Convention, and because domestic legal remedies in Mexico had not
been exhausted. The State indicated
that the arrest warrant for the Aguilar Díaz brothers was not executed at first
because they filed an amparo action (recurso de amparo) suspending its effect, but that "once the
amparo was ruled on, the arrest warrant was modified and issued again, this time
for the crime of unaggravated intentional homicide."
The State adds: As
regards reparation for the damages, it should be noted that according to the
Code of Criminal Procedure for the Federal District, "civil liability for
reparations for damages may not be decreed other than by the offended party
taking the procedural initiative..." and this must be done "... before
the judge or court that has taken cognizance of the criminal action...."
(Articles 533 and 532 respectively.) The
Code of Criminal Procedure provides, at Article 539, that "when the party
in interest with respect to the civil liability does not file the motion ...
after the ruling in the respective proceeding, it may seek to enforce it by
filing a claim as per the requirements of the Code of Civil Procedure ... before
the civil courts."
23. In its
response to the petitioners' observations, the State reiterated its initial
arguments. In addition, it reported
that the CNDH had intervened in the matter and that on November 21, 1991, it
communicated to Mrs. Valderrama that "no acts violative of human rights
appear, based on the investigation, and, therefore, the case will be closed as a
concluded matter." Nonetheless,
it clarified that the CNDH "has stated that it is most willing to hear the
complainant once again and, as appropriate, reopen the case and carry out the
investigations needed to fully clarify the facts set forth in the
complaint."
24. In
response to the proposal to initiate the procedure provided for in Article
48(1)(f) of the American Convention, the State asks in its communication of May
31, 1995, that the IACHR "take into consideration the disposition of the
authorities and corresponding offices to reach a friendly settlement."
It further indicates that constitutional amendments have been adopted,
including the possibility of challenging the decision of the Public not to press
criminal charges. Another reform
the State highlights is the creation of the Office of Human Rights and Community
Services within the PGJDF, and it adds that "as evidence of the good faith
of the Mexican authorities to solve the case, a copy of Report Nº SGDH/3734/95
and its attachments shall be delivered to the Commission, which reflect the
interest of the authorities in carrying out the arrest warrants in
question." (sic)
25. On
December 7, 1995, the State informed the IACHR: On
October 16 of this year, a Special Group of the Judicial Police was formed whose
main objective is take the appropriate steps leading to execution of the arrest
warrants. This Special Group has
undertaken the task of collecting information that will make it possible to
determine with greater certainty the whereabouts of the accused Sergio, Israel
Roberto, and Pedro Horacio, all by the last names of Aguilar Díaz.
In addition, the Special Group has undertaken the task of trying to
determine whether these persons have changed identity.
In addition, one element that will no doubt be most helpful for the work
of the Special Group refers to the composites sketches that were prepared by the
experts of the PGJDF, in which Professor María Concepción Valderrama widow of
Peredo, the mother of the deceased, participated significantly.
26. In the
same communication, the Mexican State reiterates that "it has been possible
to confirm that the fugitives have not sought visas to the United States,"
yet even so "the Mexican authorities are remaining on the alert in this
respect, for as is publicly known, there is large-scale emigration to the United
States of America, and not having documents is no guarantee that one is not in
the country that neighbors Mexico to the north."
In addition, the State indicates that the petitioners "do not take
into account the physical impossibility, recognized by the legislation and by
the doctrine, of carrying out the arrest warrants when the persons named therein
have not been located." (sic) It adds that "the Government of Mexico
has accorded priority to executing these arrest warrants and is making every
effort within its reach to achieve this." 27. Once the three Aguilar Díaz brothers had
been detained and turned over to the Mexican judicial authorities, the Mexican
State maintains that it made every effort to sanction the perpetrators, and, for
this reason, it asked the IACHR on numerous occasions to declare the case
resolved and to close it. On July
11, 1996, the State expressed that "the alleged murderers of Pedro Peredo
Valderrama have been pursued for nine years with tenacity and perseverance by
members of the judicial police of the PGJDF," and that the petitioners'
argument on the possibility of the
Aguilar Díaz brothers evading judicial action is "baseless and without
support." It adds that
"there should be no concern on the part of the petitioners, for the
authorities, in this matter as in all cases under its jurisdiction, will apply
the principle of impartiality, legality, and justice."
The State argues that: As
a result of the intense inquiries made in the case of the homicide of the young
man Pedro Peredo Valderrama in Xochimilco, at this time none of the arrest
warrants issued against the Aguilar Díaz brothers is pending execution.
Consequently, this matter is ripe for solution pursuant to Article 49 of
the American Convention on Human Rights.
28. With
respect to the delay in the proceedings against Israel Aguilar Díaz, the
Mexican State indicated on January 3, 1997 that "if there has been a delay,
it is only attributable to the defense that was presented by Mr. Aguilar Díaz,
which is within due process." On
September 3, 1997, he reported to the IACHR that the Swiss government granted
extradition of the alleged murderer, and it considers that with this, "the
mutually agreed upon bases for arriving at a friendly settlement have been
carried out." Consequently, the State asks the Commission "to consider
this matter to have been reached a satisfactory conclusion."
This position was put forth in the following communications, as well as
in the hearings and meetings held on the case.
29. On May
29, 1998, the Mexican State informed the IACHR that the case against brothers
Sergio and Pedro Horacio Aguilar Díaz was dismissed by the court that took
cognizance of the case on appeal. It
clarified that the Ministry of Foreign Relations "does not have powers to
intervene in the investigation and prosecution of crimes, nor may it urge any
judge to issue his or her rulings in one or another direction," but that
"it has stated its positive disposition to reach a friendly settlement in
this case, in the terms agreed upon before the IACHR; it has closely followed
the case, and will be awaiting the final outcome."
It once again asks that the Commission "declare that each and every
one of the commitments taken on by the Government of Mexico in the friendly
settlement that was pursued in Case 11.103 has been carried out."
30. In
response to the petitioners' position, that the agreement was not carried out
because of the persistence of impunity, the State indicates that they
"claim to be unaware of the efforts made by the Government of Mexico to
solve this case." With respect
to the role of the PGJDF, it states: The Public Ministry, in carrying out its constitutional function as the
entity entrusted with criminal indictments, with the means available to it, the
responsibility of the accused, and it took recourse to the challenges afforded
it by the law of criminal procedure, thanks to which, in the end, two of the
accused were found guilty. From
that point on, actions were undertaken to carry out the judicial warrants for
them to be arrested again.
31. During
the hearing held on March 1, 1999, in the course of which the petitioners
requested that a report be adopted on the merits in this case, the State opposed
such a measure, insisted on its good faith displayed during the effort to reach
a friendly settlement, and noted that "there is good will to continue
advancing." Furthermore, it
argued that the conviction is a sine qua
non for discussing reparations in this case.
32. In its
final comments submitted on April 13, 1999, the State “expressed its regret
over the decision of the petitioners to end the friendly settlement
proceedings” and stated that “the process had been complex and had come up
against a number of stumbling blocks.” Despite
this, the State noted that the persons accused of the homicide had been
detained, prosecuted, and sentenced. Furthermore,
it added: It
is well-established that the State was not involved in the events that led to
the loss of life by Mr. Peredo Valderrama; that a serious, exhaustive, and
effective investigation had been launched immediately; and that the appropriate
action had been taken through the appropriate legal organs, which had led to the
apprehension of the perpetrators, to their prosecution, and to their conviction. The
friendly settlement agreed to on the basis of the proposal of March 1995 cited
as a main point execution of the warrants for the arrest of the alleged
perpetrators, which took place in 1996. The
decision regarding their guilt is one to be made exclusively by the judiciary. IV.
ANALYSIS A.
Admissibility
33. The
practice of the Commission in recent years has been to rule beforehand and
separately on the admissibility of petitions related to individual cases.
However, the IACHR has also made exceptions to this practice in those
cases, such as this one, when the charge of the violations of the right to
judicial guarantees and judicial protection is linked to the analysis of the
exhaustion of domestic remedies within a reasonable timeframe, as well as its
effectiveness.[1]
To that end, the Commission will analyze below compliance with the
requirements set forth in Articles 46 and 47 of the American Convention.
a.
Competence
34. The
State argued that in this case, there was no proof of human rights violations.
As seen above, the allegations in this case describe acts that would
constitute a violation of the rights recognized and enshrined in the American
Convention, and which took place when the obligation to respect and guarantee
the rights established in this instrument was in effect with respect to Mexico.[2]
For this reason, the IACHR has rationae
personae, rationae materiae, and ratione
temporis competence to hear the merits of the complaint.
b.
Exhaustion of domestic remedies
35. Among
the exceptions to the rule on the exhaustion of domestic remedies, Article
46(2)(c) of the American Convention makes provisions for the unjustified delay
in decisions related thereto. The
murder of Pedro Peredo Valderrama occurred on December 20, 1986, and after 13
years, the domestic legal bodies still have not made a definitive determination
of how the incident occurred, nor has any final sentence been imposed on the
killers.
36. Taking
into account the time period that elapsed since the murder, the IACHR considers prima
facie that the exception of Article 46(2)(c) applies to the instant case.
The unreasonable delay in the proceedings alleged by the petitioners
shall be the subject of a more complete analysis in the section of the report
pertaining to the investigation into the murder of Pedro Peredo Valderrama.
c.
Time period for submission
37. The
State did not avail itself of the exception set forth in Article 46(1)(b) of the
American Convention, nor did it analyze it in this report, since the parties
agree that proceedings in the Mexican legal system have not yet been concluded. d.
Duplication of proceedings
38. The
Mexican State did not avail itself of the exception provided for in Article
46(1)(d) of the American Convention, nor is it apparent based on the information
contained in the case file.
e.
Friendly settlement
39. The
proceedings provided for in Article 48(1)(f) of the American Convention were
instituted in July 1995, as soon as both parties expressed agreement on that
matter. In the course of efforts to reach a friendly settlement,
which lasted almost four years, several meetings and hearings were held between
the parties, with the Commission present. Finally,
the IACHR ended the friendly settlement stage at the express request of the
petitioners, made during a hearing that took place on March 1, 1999.
In view of the fact that most of the
developments related to this case occurred while these friendly proceedings were
taking place, details on the information received during that period will be
analyzed together with the merits of the case.
B.
Merits
40. After
establishing that the complaint is admissible, the Commission will proceed with
an analysis of the arguments on the basis of fact and law related to the merits
of this complaint.
a.
Right to life (Article 4)
41. Article
4(1) of the American Convention states: Every person has the right to have his life respected.
This right shall be protected by law and, in general, from the moment of
conception. No one shall be
arbitrarily deprived of his life.
42. In the
case under analysis, the petitioners have not accused State agents of being
directly responsible for the murder of Pedro Peredo Valderrama.
However, in their view, it results from the failure on the part of the
authorities to investigate the facts. In
that regard, the Inter-American Court has stated An
illegal act which violates human rights and which is initially not directly
imputable to a State (for example, because it is the act of a private person or
because the person responsible has not been identified) can lead to
international responsibility of the State, not because of the act itself, but
because of the lack of due diligence to prevent the violation or to respond to
it as required by the Convention.[3]
43. Based on
the information provided in the complaint, Pedro Peredo Valderrama was killed
when he was attacked by armed individuals on a public road.
The information in the IACHR file does not reveal that Peredo Valderrama
had been threatened before by the alleged killers or by other persons, or that
his life had been in danger for any reason.
For this reason, it is not possible to find that the Mexican State failed
to do its duty by preventing the murder of Pedro Peredo Valderrama.
44. The
IACHR does not have any basis on which to establish responsibility of the
Mexican State for violation of the right to life of Pedro Peredo Valderrama.
However, the question of whether the investigation into this homicide was
conducted in accordance with the rules of due process and whether the right of
his relatives to effective judicial protection was guaranteed will be analyzed
later on.
b.
Right to humane treatment (Article 5)
45. Article
5(1) of the American Convention guarantees that “every person has the right to
have his physical, mental, and moral integrity respected.”
The analysis of this case shows that the petitioners reported, on various
occasions, both to the Mexican courts and to the IACHR, that the family of Pedro
Peredo Valderrama had been harassed from the time they
accused the Aguilar Díaz brothers of his murder.
For its part, the Mexican State indicated from the start of the
proceedings before the IACHR, its willingness to investigate and settle this
case.
46. The
Commission requested precautionary measures from the Mexican State on April 10,
1996, in regard to which the State responded that it had ordered protection of
the home of the Peredo Valderrama family. The
petitioners disputed the effectiveness of these measures and charged that the
State had not treated the matter with due seriousness.
47. The
information contained in the record does not show direct responsibility on the
part of State agents in events that may have jeopardized the physical, mental,
or moral integrity of the Peredo Valderrama family members.
In this case, it is also not possible to charge the State with violation
of this right by individuals acting with the protection of government officials,
or what may have happened because of their negligence.
The IACHR therefore concludes that the Mexican State bears no
international responsibility for violation of the right protected under Article
5 of the American Convention, which, according to the petitioners, occurred in
the case of Mrs. Concepción Peredo de Valderrama and her family.
48. The
foregoing notwithstanding, in the view of the Commission, there are sufficient
factors to analyze, in the relevant part of this report, whether the State
failed in its duty to investigate the threats made against the Peredo Valderrama
family.
c.
Right to equal protection of the law (Article 24)
49. Article
24 of the American Convention states: All persons are equal before the law.
Consequently, they are entitled, without discrimination, to equal
protection of the law.
50. The
petitioners charge that the right of the family of Pedro Peredo Valderrama to
equal protection of the law has been violated.
They argue that the political power of the Aguilar Díaz family provided
its members with an unfair advantage in relation to the relatives of the victims
in this case. In its
correspondence, the State makes no reference to this claim.
51. The
Commission reiterates what it stated earlier, after analysis of the alleged
violation of the right to life, regarding the ways in which States can bear
international responsibility for the violation of human rights.
The Inter-American Court of Human Rights has maintained the following: Accordingly,
no discrimination exists if the difference in treatment has a legitimate purpose
and if it does not lead to situations which are contrary to justice, to reason
or to the nature of things. It follows that there would be no discrimination in
differences in treatment of individuals by a state when the classifications
selected are based on substantial factual differences and there exists a
reasonable relationship of proportionality between these differences and the
aims of the legal rule under review. These aims may not be unjust or
unreasonable, that is, they may not be arbitrary, capricious, despotic or in
conflict with the essential oneness and dignity of humankind.[4] 52.
The IACHR notes that in this case, no State agent was accused of engaging
in discriminatory conduct with respect to any member of the Peredo Valderrama
family, and that it is also impossible to establish that responsibility based on
negligence of the authorities. Furthermore,
the petitioners have not provided the most basic evidence to establish a
standard for comparison[5]
and, for this reason, the Commission concludes that there is no colorable claim
of a violation of the right to equal protection of the law. d.
Right to compensation because of a miscarriage of justice (Article 10)
53. Article
10 of the American Convention states that every
person “has the right to be compensated in accordance with the law in the
event he has been sentenced by a final judgment through a miscarriage of
justice.” The Commission notes that although the petitioners in this
case cited this provision, neither the facts nor the charges indicate that the
victims were sentenced through a miscarriage of justice.
Therefore, in the view of the IACHR,
a ruling in this report on the right protected by Article 10 of the American
Convention would not be appropriate. e. Right to judicial
guarantees (Article 8) and to judicial protection (Article 25) in relation to
the obligation to respect and guarantee rights (Article 1(1))
54. Fulfillment
of the obligations imposed under Articles 8 and 25 of the American Convention is
linked to the applicability of the exceptions related to the exhaustion of
domestic remedies.[6]
This is the determination made by the Commission with respect to this case, in
concluding that the application of the exception to the exhaustion of domestic
remedies set forth in Article 46(2)(c) of the American Convention is admissible.
55. The
right to judicial guarantees and the right to judicial protection are tied to
the obligation set forth in Article 1(1) of the American Convention.
The following assessment made by the IACHR should be borne in mind: The
obligation contained in Article 1 (1) is a necessary corollary of the right of
every individual to recourse to a tribunal to obtain judicial protection when he
believes he has been a victim of violation of any of his human rights. If this
were not so, the right to obtain effective recourse set forth in Article 25
would be absolutely without content. (…) The
Commission considers that the right to a recourse set forth in Article 25,
interpreted in conjunction with the obligation in Article 1(1) and the
provisions of Article 8(1), must be understood as the right of every individual
to go to a tribunal when any of his rights have been violated (whether a right
protected by the Convention, the constitution or the domestic laws of the State
concerned), to obtain a judicial investigation conducted by a competent,
impartial and independent tribunal that will establish whether or not a
violation has taken place and will set, when appropriate, adequate compensation.
[7]
56.
The Inter-American Court, in analyzing the duty to investigate human
rights violations, makes it clear that this is difficult to determine in certain
circumstances. However, it is defined as a duty in terms of means or conduct,
which “must be undertaken in a serious manner and not as a mere formality
preordained to be ineffective.” According
to the Court, the obligation to investigate “must have an objective and be
assumed by the State as its own legal duty, not as a step taken by private
interests that depends upon the initiative of the victim or his family or upon
their offer of proof, without an effective search for the truth by the
government.”[8]
In a decision relevant to the analysis of the instant case, the Inter-American
Court established: It
is evident from Article 8 of the Convention that the victims of human rights
violations or their next of kin should have substantial possibilities of being
heard and acting in the respective proceedings, both in order to clarify the
facts and punish those responsible, and to seek due reparation…. It is clear
that those responsible have not been punished, because they have not been
identified or penalized by judicial decisions that have been executed.
This consideration alone is enough to conclude that the State has
violated Article 1.1 of the Convention, since it has not punished the
perpetrators of the corresponding crimes. In
this respect, there is no point in discussing whether the defendants in the
domestic proceedings should be acquitted or not.
What is important is that, independently of whether or not they were the
perpetrators of the unlawful acts, the State should have identified those who
were responsible, and it did not do so.[9]
57. The
obligation to investigate, prosecute, and punish the persons liable for human
rights violations is a non-delegable duty of the State, especially when its
penal system makes it solely responsible for criminal proceedings.[10]
This is the case of Mexico, where the execution of criminal proceedings
are assigned exclusively to the State in its domestic laws.[11]
58. The
Commission will proceed with an analysis of the information available in the
record regarding the investigation into the violation of the right to life of
Pedro Peredo Valderrama, and of the investigation into the threats and
harassment of the members of the family when they reported the homicide, in
order to determine whether they meet the aforementioned requirements of the
American Convention. i.
Investigation into the murder of Pedro Peredo Valderrama
59. The
obligation to investigate human rights violations in a complete, independent,
and impartial manner is inherent in the duty to protect human rights, recognized
in the American Convention.[12]
The investigation must meet all the requirements for due process, defined
in Article 8(1) of the American Convention: Every person has the right to a hearing, with due
guarantees and within a reasonable time, by a competent, independent, and
impartial tribunal, previously established by law, in the substantiation of any
accusation of a criminal nature made against him or for the determination of his
rights and obligations of a civil, labor, fiscal, or any other nature. 60.
As stated earlier, another fundamental element of an investigation is
effectiveness. Under the terms of
Article 25 of the American Convention: “Everyone has the right to simple and
prompt recourse, or any other effective recourse, to a competent court or
tribunal for protection against acts that violate his fundamental rights.” This case involves the right of the Peredo Valderrama family
to ensure that the facts are investigated, the perpetrators are punished, and
they are compensated for damages suffered.
61. With
regard to the duration of the legal proceedings, consideration must be given to
the fact that Pedro Peredo Valderrama was killed on December 20, 1986, that is,
almost thirteen years as of the date of this report, and no determination has
yet been made regarding how the incident occurred, the perpetrators have not
been definitively identified or punished, and compensation has not been paid for
the consequences of these violations. The
Commission already established above, with regard to the admissibility of the
case, that this time period is unreasonable. In this section, consideration will
be given largely to the factors established for this purpose by the
Inter-American Court: the complexity of the case; the procedural action of the
interested party; and the conduct of the judicial authorities.[13]
An analysis will be done of the effectiveness of the investigation later
in this report.
Complexity
62. It has
already been seen that the facts and documentation available indicate that this
case is not a complex one. There is
only one victim, the events took place in a public road and in the presence of
several eyewitnesses, and the persons alleged to have actually committed the
crime were identified by these witnesses.
63. The
complaint was filed by the Peredo Valderrama family with the PGJDF on January 2,
1987, a few days after the murder. The
Office of the Public Prosecutor started preliminary investigation 27A/2343/986
after judicial inspection of the body of Pedro Peredo Valderrama. As part of the proceedings, when the alleged killers went to
the PGJDF, they were protected by a writ of amparo
that prevented their detention at that time.[14]
However, when the preliminary investigation was turned over to the
judiciary, the competent judge issued warrants for the arrest of the Israel
Roberto, Pedro Horacio, and Sergio Aguilar Díaz, brothers, on February 4, 1987.
64. In the
view of the IACHR, one of the central issues of this case is the failure to
execute the arrest warrants from early 1987 to March and June 1996 when Israel
Aguilar Díaz was arrested in Switzerland, and Pedro Horacio and Sergio Aguilar
Díaz were arrested in Mexico, respectively.
According to the petitioners, non-execution was linked to the influence
exercised by the Aguilar Díaz family over the local authorities.
The State writes in its correspondence of October 12, 1993, that “thus
far, it has not been possible to execute the arrest warrant because the
whereabouts of the alleged perpetrators are unknown.”
Procedural activity by the Peredo Valderrama family
65. The
complaint processed by the IACHR contains copious documentation, the validity or
relevance of which has never been disputed by the Mexican State, regarding the
procedural activity conducted by the Peredo Valderrama family to ensure
execution of the arrest warrant. These
documents include a large volume of correspondence and reminders to the PGJDF,
to the competent judge, and to the Director General of the Investigative
Police for the Federal District (entity directly responsible for executing the
arrest warrant). The petitioners
mention in the initial complaint that, as a result of their actions, the judge
sent official reminders pertaining to execution of the arrest warrant to the
Federal District Investigative Police on June 2, 1987, March 18, 1988, June 9,
1988, February 26, 1989, and May 3, 1991. 66.
Mrs. Concepción Peredo de Valderrama also went to the PGJDF on many
occasions to report negligent conduct on the part of the investigative police,
who, according to her, had gone as far as to prepare false reports on
proceedings that had never been held. For
example, mention should be made of the correspondence of April 24, 1990, by Mrs.
Valderrama to the PGJDF, summarizing the actions taken to date, which produced
no results, and which included very specific information on the movements of the
alleged killers. Mrs. Valderrama
mentions in her correspondence three homes frequented by the Aguilar Díaz
family, the business activities of the bothers who were fugitives from justice,
and the vehicles that they were driving, with the respective tag numbers.
According to her, several relatives and witnesses had seen the Aguilar Díaz
brothers personally conducting activities related to these businesses.
67. The
State has indicated on several occasions that Mrs. Peredo Valderrama had not
cooperated with the authorities, and that the delay and ineffectiveness of the
investigation was attributable to her. In
the view of the Commission, not only did the victim’s family refrain from
obstructing the process but rather it cooperated actively with the investigation
into the murder. It should not be
forgotten that States cannot transfer to individuals the obligation to
investigate imposed on them by the instruments of the inter-American human
rights system.[15]
Proof of this lies in the fact that the members of the Peredo Valderrama
family provided important information and personally participated in the search
operations, despite alleged threats from the Aguilar Díaz family.
Conduct of the judicial authorities and the PGJDF 68.
it must be stressed that the Mexican State has not disputed the fact that
Pedro Horacio Aguilar Díaz was identified in 1988 in the Xochimilco, Federal
District area by the uncle of Pedro Peredo Valderrama, but fled with the
complicity of the agents of the investigative police, who had been called to the scene to arrest him.[16]
The seriousness of this incident, together with the failure to punish the
perpetrators, are enough to establish the responsibility of the Mexican State in
its failure to perform its duty to investigate the facts related to this case. 69.
It is perhaps not surprising therefore, that several years have gone by
without anything being achieved by the domestic legal system. During its on-site visit to Mexico in July 1996, the
Commission was informed by the authorities of the Federal District on the
advances in the extradition proceedings, as well as on the investigation and the
prosecution of the alleged murderers. While
the case was being processed by the Commission, particularly during the friendly
settlement stage, very significant progress was made in the judicial
investigation, with the arrest of the three alleged killers in 1996. In its letter of April 23, 1996, the Mexican State indicated: Israel Roberto Díaz Aguilar (sic), for whom an arrest warrant has been
issued in the murder of young Pedro Peredo Valderrama, was located and detained
in Switzerland, and proceedings have been instituted for his extradition. 70.
On July 11, 1996, the State informed the IACHR that: Messrs.
Sergio and Pedro Horacio Aguilar Díaz, 30 and 31 years old respectively, were
detained on June 27, 1996 in Mexico, D.F. after an exhaustive investigation by
members of the investigative Police of the PGJDF, pursuant to arrest warrants
issued for the murder Pedro Peredo Valderrama. 71.
However, at no time did the State inform the IACHR whether the Mexican
authorities had investigated certain matters that were very important in
establishing the truth about this case. It
did not provide any information on how the three brothers were able to elude the
Mexican justice system for such a long time.
It did not provide information on how Israel Roberto Aguilar Díaz was
able to travel to Switzerland when an arrest warrant had been issued for him,
whether an investigation had been carried out to determine how the three
brothers remained fugitives all that time, or whether an effort had been made to
determine whether there had been complicity on the part of the authorities,
apart from the incident already related involving Pedro Horacio Aguilar Díaz,
to block execution of an arrest warrant for nine years. 72.
Execution of the arrest warrants in 1996 did not lead to definitive
clarification of the facts surrounding the case, let alone the punishment of
those responsible, since the alleged killers were freed less than two years
after their arrest. On April 21,
1998, the petitioners provided the following information:
Last April 10, the Judge of the Thirty-second Criminal Court of the
Federal District, Sebastián Moreno Olin, by operation of law,
handed down a ruling acquitting Pedro Horacio and Sergio Aguilar Díaz,
against whom criminal proceeding 111/97 had been instituted for the aggravated
homicide of Pedro Peredo Valderrama…This decision of the Mexican State, handed
down through its judiciary, is yet another act of grave impunity that has come
to characterize this case, since more than ten years have gone by without the
imposition of any criminal sanctions on the persons responsible for the homicide
of Pedro Peredo. With this
decision, the fears that we, the petitioners, have expressed regarding the
arbitrary acts committed by the Judge processing the case, the failure to
respond to various claims, and the indifference of the Executive have been shown
to be well-founded. 73.
The petitioners submitted detailed information regarding irregularities
allegedly committed by the first instance judge who handed down this decision,
such as the fact that he confused the name of one of the witnesses (Hernández
instead of Fernández); he referred to the statement of another witness (Carlos
Rioja Walber) who did not appear; he referred to expert topographical evidence
that had not been included in the mass of evidence entered in the proceedings;
he referred to the expansion of the statement of another witness (Fidelia López
Sánchez) who was already dead on the date of the alleged proceedings, and whose
death certificate had been included in the case file; and he quoted from sworn
statements provided by Araceli Contreras Díaz, Ernesto Aguilar Cordero, Pedro
Aguilar Cordero, and Juan Manuel Peña Jiménez as if these statements had been
provided for the defense of Pedro Horacio and Sergio Aguilar Díaz, when, in
reality, this evidence had been provided in defense of the other person charged,
namely, Israel Roberto Aguilar Díaz. The
petitioners charge that all of this “suggests that the judge a
quo has absolutely no knowledge of the evidence pertaining to criminal case
111/97,” “the result of which is the violation of Article 17 of the
Constitution of the United Mexican States, since his conduct is hindering
justice from being duly dispensed in a prompt manner.” 74.
Furthermore, the petitioners allege that the judge,
“in handing down a sentence for an acquittal, is flagrantly violating
the guiding principles pertaining to the assessment of evidence” for the
following reasons: [The
judge] is rejecting the mass of evidence contained in criminal case 111/97 that
is prejudicial to those being prosecuted individually and separately; contrary
to the stipulations of Article 261 of the Code of Criminal Procedure; that is,
jointly and after weighing in a natural and logical manner the mass of evidence
entered during the preliminary proceedings.[17] The Examining
Magistrate is giving full consideration to the evidence of the sole witness for
the defense, who, in this case, is none other than the father of the defendants,
namely Pedro Aguilar Cordero. Therefore,
the judge assigned to the case is
once again violating the guiding principles pertaining to the assessment of
evidence, since, at no time has there been compliance with the provisions of
Article 255(III), given the fact that Pedro Aguilar Cordero, because of his
family ties to the accused, was incapable of acting with complete impartiality.
Furthermore, his testimony for the defense was provided more than 10 years after
the occurrence of this act. In other words, the testimony provided by the father of the
persons who have now been convicted is, beyond a doubt, testimony designed to
provide an alibi, the aim of which is to disassociate the defendants from the
acts with which they have been charged. 75.
According to the petitioners, Erick and Uriel Peredo Valderrama, “fully
and fearlessly identified the individuals who have now been prosecuted for
beating and killing their brother, Pedro Peredo Valderrama.”
The Mexican case law provided by the petitioners to the IACHR notes, one
the one hand, the evidentiary force of the statements of the relatives of
victims, and reduces, on the other hand, the value of the statements by
relatives of the accused. For
example, it is pointed out that the Mexican Supreme Court has maintained that
“the statement of the victim of a crime casts a strong presumption of
responsibility on the person accused of causing the prejudice, since it is
logical to assume that the person who suffered the prejudice has an interest in
ensuring that the perpetrator is punished rather than a third party.”[18] 76.
Despite this, the
petitioners stress that the judge acquitted Pedro Horacio and Sergio Aguilar Díaz
precisely because he rejected the testimony of Erick and Uriel Peredo Valderrama
because they are the victim’s brothers, which he alleged makes them unable to
“view the situation dispassionately.” 77.
The State reported on May
29, 1998 that the PGJDF had appealed the acquittal of Pedro Horacio and Sergio
Aguilar Díaz before the Tenth Division of the Superior Court of the Federal
District, and added: The
prosecution is fulfilling its duty by insisting on the punishment of the alleged
perpetrators by referring the matter to the court above the one that handed down
the first instance ruling, which means that the matter remains sub
judice, thanks to the appeal filed by the Office of the Public Prosecutor. It
should be noted that if the Tenth Division determines the existence of
irregularities that are established from the ruling, which means that the
proceedings were not dealt with in an impartial and objective manner by the
judge handling the case, this ruling will be changed or overturned. Israel
Roberto Aguilar Díaz is still at the Southern Temporary Detention Center, since
proceedings 111/97, which are being handled by the thirty-second criminal court,
instituted against him for the crime of homicide, is still in the preliminary
investigation phase.
Furthermore, the PGJDF has started an investigation to determine the
possible commission of a crime related to this case by the judge of the first
instance court, the clerk of the court, and one witness, in addition to the
complaint before the Federal District Judicature Council for possible
administrative irregularities in the decision related to this case.
The foregoing is being conducted in accordance with the mechanisms set
forth by the Mexican legal system for that purpose, safeguarding at all times
judicial independence. 78.
With regard to the analysis and case law provided by the petitioners, the
State indicates that “this information could have been added to the arguments
submitted by the Office of the Public Prosecutor when the aforementioned ruling
was being appealed, if it had been provided in a timely manner.”
The State makes it clear that “The Department of
Foreign Relations does not have the authority to intervene in the
investigation into and prosecution of crimes, nor can it urge a judge to hand
down rulings favorable to one party or another. Thus, there is no basis for the request of the petitioners in
this regard.” Finally, it
stresses that the accused have been detained, and, for this reason, it asks the
IACHR “to rule that all the commitments assumed by the Government of Mexico in
the friendly settlement that started with case Nº 11.103 had been fulfilled.” 79.
Finally, in its correspondence of April 13, 1999, the Mexican State
informed the IACHR that the Superior Court of Justice of the Federal District
had overturned the acquittal sentence of Pedro Horacio and Sergio Aguilar Díaz,
pursuant to which the Judge of the thirty-third criminal court issued warrants
for their rearrest on June 12, 1998. These
warrants were not executed due to the fact that the Aguilar Díaz brothers
instituted direct amparo
proceedings against the judicial decision. 80.
The petitioners note that they had asked the authorities to execute the
arrest warrant immediately, in light of the distinct possibility of the
institution of direct amparo
proceedings; however, “regrettably, although this request was filed two months
after the aforementioned decision, no steps were taken to execute these
warrants.” The petitioners add
that Israel Aguilar Diaz was sentenced to 22 years 6 months in prison on March
3, 1999, and they claim that “although this is favorable in terms of solving
the case, there is no guarantee of full compliance,” since the ruling was
handed down by a court of first
instance, and it may appealed and later be the subject of direct amparo
proceedings, which may lead to a delay of more than six months before an
enforceable ruling is obtained. Finally,
they indicate the following: During the process, various irregularities were noted, which should have been reported. For this reason, the intervening party thought it necessary to file appeals that were not supported by the PGJDF, which was an in |