Human Rights Committee

Ninety-eighth Session

2687^th & 2688^th Meetings (AM & PM)

Human Rights Committee Concludes Two-Day Consideration of Mexico’s Periodic Report;

Questions Raised on How National Law Reconciles with International Treaties

Experts Also Address Attacks on Journalists, Preventive House Arrest;

Delegation Says Significant Strides Taken, but Complex Challenges Remain

While recognizing measures taken by the Mexican Government to reconcile the country’s national legislation with its obligations under international human rights treaties, experts on the Human Rights Committee today expressed concern that the means of addressing incompatibilities between those treaties and laws below the constitutional level remained unclear.

As the Committee concluded its two-day consideration of Mexico’s fifth periodic report, which spilled over into an extra session this afternoon, several experts referred to two decisions by the country’s Supreme Court that seemed to contradict one another about the paths available to resolve differences between state laws that were not elaborated in the Mexican Constitution and human rights treaties.

Outlining those decisions, Sir Nigel Rodley, expert from the United Kingdom, said a 2007 Supreme Court decision indicated that international human rights treaties trumped national laws below the Constitution, but a decision last week by that Court said any apparent contradiction of a national law with an international treaty could not be challenged constitutionally.  Saying he did not understand that, he asked what other means existed to challenge a national law that did not seem to comply with the International Covenant on Civil and Political Rights, as well as other instruments.

Also perplexed by the apparent contradiction in the decisions -- which seemed to leave little recourse for challenging laws on the basis of the Covenant and other binding human rights agreements -- Abdelfattah Amor, expert from Tunisia, asked if a judge could simply set aside implementation of a law that seemed incompatible.

Alarmed by ongoing attacks on journalists and human rights defenders, several members of the panels drew attention to the role Mexico’s own libel and slander laws could play in stifling dissent or journalistic expression.  Others lamented that the Committee continued to hear about various programmes, but was provided very little information about actual measures being taken to ensure that journalists and human rights defenders were not killed for carrying out their work.  Had anyone been convicted for such attacks through judicial proceedings? one expert asked.

Expressing concern that any civic actor who stood up for the rights of minorities or who called for enhanced human rights protection could be killed, Christine Chanet, expert from France, said the matter was too serious for the Government to “wave the magic programme wand” and called for “very serious” measures to be taken to protect the rights of those persons.

Several members of the expert panel also pressed the Mexican delegation on the State’s use of arraigo, or preventive house arrest.  Questions ranged from the protections afforded the accused to the evidentiary burden in play for an order of arraigo to be issued to the circumstances surrounding and locations of pretrial detention.  José Luis Perez Sanchez-Cerro, expert from Peru, encouraged the State to eliminate matters regarding preventive detention that did not jive with the tenets of the Covenant.

Responding to those questions, Alejandro Negrín Muñoz, Director-General of Human Rights and Democracy in the Foreign Ministry, stressed that Mexico’s use of preventive detention did not go against international standards in human rights.  It was not used arbitrarily; rather, it was used only at the behest of the Ministry of the Interior through the judiciary and was time bound.  Moreover, its use was limited to organized crime.

Alejandro Gómez Sánchez, Judge of the Third Federal Criminal Court Specializing in Searches, Raids and Restraining Orders, further emphasized that at no time did a judge order such detention based on speculation or supposition.  Nor were such persons ever held in secret locations or denied communication with legal authorities and family members.  Because public authorities were generally under so much pressure to protect such persons, he said there was virtually no chance for abuse.  When abuse did occur, the Government moved swiftly to investigate the matter and prosecute those involved.

In closing remarks, Blanca Herdia Rubio, Commissioner for Political Development of the Ministry of the Interior, said that, while Mexico had made significant strides in the area of protecting human rights since 1999, it still faced complex challenges.  Those included speeding up a modern rule of law and meeting the security challenges posed by organized crime.  For its part, the Government was committed to all that was necessary to address the comments that had been raised during the dialogue and would certainly do more to eliminate the legal obstacles the prevented human rights protections from being fulfilled.

Other delegation members speaking today were José Antonio Guevara Bermúdez, head of the Unit for the Promotion and Defence of Human Rights, the Ministry of the Interior; Pablo Navarrete Gutiérrez, Coordinator of Legal Affairs of the National Institute of Women; Emilio Bernardo Fernández Del Castillo Sánchez, Director of Legal Affairs and Human Rights, Ministry of Health; Patricio Ballardos Villagómez, General Coordinator of the Presidential Advisers, Federal Electoral Tribunal; Janitzio Durán Ortegón, General Coordinator of Special Projects for the National Commission for the Development of Indigenous Peoples.

Also: Alberto Manuel Alcántara Martínez, Secretary of the Council of the Federal Judiciary; Yéssica de la Madrid, Director-General of International Cooperation in the Attorney General’s Office; Victor Hugo Pérez, Director-General for Human Rights of the Ministry of Public Security; General José Luis Chávez García, Prosecutor of Military Justice, National Defence Ministry; Carlos Natarén Nandayapa, Director-General of the Technical Secretariat for the Reform of the Judicial System, Ministry of the Interior; General Jaime Antonio López Portillo Robles Gil, Director-General for Human Rights in the National Defence Ministry; and Captain Álvaro Flores González, Navy Secretariat.

The Human Rights Committee will reconvene at 3 p.m. Wednesday, 10 March, to begin its consideration of Argentina’s fourth periodic report on compliance with the Covenant.

Background

The Human Rights Committee, the 18-member expert body which monitors global implementation of the International Covenant on Civil and Political Rights, met today to continue its consideration of the fifth periodic report of Mexico on that country’s compliance with the treaty (document CCPR/C/MEX/5).  (See also Press Release HR/CT/714 issued 8 March.)

Delegation’s Responses

Responding to questions posed by the expert panel yesterday, JOSÉ ANTONIO GUEVARA BERMÚDEZ, head of the Unit for the Promotion and Defence of Human Rights, the Ministry of the Interior, said the situation in Juarez was of the utmost importance to the federal Government.  Last year, an intervention plan called “We are all Juarez” had been implemented.  Among other things, it sought to remedy the roots of the problems there, channelling resources and incorporating citizens in its design and implementation in five areas: poverty and vulnerability; health; education; creation and recovery of public spaces; and economic development and employment.

Underlining the existence of legislation on violence against women, he said the Government also sought to bring redress in the case of violent events and to avoid their repetition.  It was also working towards a rights-protection regime that aimed at women’s rights particularly.  However, there had to be modifications throughout the country in the various provinces and local municipalities.  Reform was particularly needed in civil and criminal codes at the local level and specific changes had been proposed to the criminal code for each of the 32 states, to change laws that, among other things, prevented women’s access to justice.

PABLO NAVARRETE GUTIÉRREZ, Coordinator of Legal Affairs of the National Institute of Women, reiterated that it was only with the achievement of true equality between men and women that Mexico’s democracy would be complete.  To that end, violence against women was recognized as a human rights violation in the country and condemned both publicly and privately.  But, while Mexico’s legislative framework ensured women a life free of violence, it was clear that was not enough to address the “thousand tentacled monster” that was machismo.  The Government was, therefore, focused on eliminating the circumstances which fed the monster in the social context.

He said that, given the scope of the phenomenon, the State had, for the third year running, allocated historically large budgets to women’s matters on the order of 11 billion pesos.  That allocation was monitored via quarterly reports.  Special gender bodies had also been created in a number of the Government ministries and Mexico’s 32 states also had a coordinated work plan on women’s issues.

In addition, there were a number of efforts being made to promote women’s justice in the judicial branch, he said.  Judicial officials were being trained in gender and human rights issues.  Over the last three years, more than 1,500 people had been trained, from ministers to division secretaries to judges.  An additional 9,000 people had been trained in the administrative and auxiliary branches.  The Secretariat for National Defence had also opened all of the courses it operated to women, while courses in human rights and gender had been incorporated in the curriculum.  More than 30,000 troops had been trained in these topics in 2009.  Wages were also tweaked to eliminate gender discrepancies and paternity leave was developed.  After 111 years, women had finally been incorporated into the naval and engineering school.

He went on to say that there were two secretariats that had recently published a gender equality plan with clear indicators that measured gender mainstreaming and the promotion of women’s rights.  However, it would be irresponsible to assert that challenges no longer remained.  Thus, the Government was incorporating changes at all levels.  To that end, it recognized that law, as a creation of human beings, could be perfected.  Notably, the creation of the law against violence had come about in just more than two years.  In light of the fact that the domestic violence law had taken 10 years to develop, that could be considered a record.

Turning to concerns expressed yesterday on discrepancies between federal laws and state laws, he said the gender violence alert was within the fold of the national system, which initiates and implements it.  It was not, therefore, a problem that the state did not have that same law, since the alert had been declared on a federal level and the states must participate in it.  Specifically on the concerns about constitutional reforms that aimed to ensure the right to life in Mexico, he noted that there had been reform of 18 local constitutions that ensured the right to life from conception.  Of those, 10 noted expressly that they would preserve the principles that existed on the local level.  Eight of the 18 did not make an express mention of that topic.  Thus, 10 of the 18 believed that the legal provisions that were previously in place governing that topic were still in place.  On that issue, he further emphasized that the Government would use all measures available to bring care to women who were victims of violence or rape.

EMILIO BERNARDO FERNÁNDEZ DEL CASTILLO SÁNCHEZ, Director of Legal Affairs and Human Rights, Ministry of Health, pointed out that there was both federal and local jurisdiction when it came to health policies.  In recent years there had been a decentralization of the delivery of health services.  At the federal level, the Ministry of Health still established the rules to determine procedures.  However, in the cases of rape -- where complete information should be given to the woman vis-à-vis the effects she might experience and the services to which she was entitled -- power was located at the local level and did not fall into the federal jurisdiction.  Thus, he stated, the official Mexican standards were not new provisions.

PATRICIO BALLARDOS VILLAGÓMEZ, General Coordinator of the Presidential Advisers, Federal Electoral Tribunal, said the Tribunal had resolved dozens of challenges with respect to women’s participation by clarifying women’s access.  It placed at the Committee’s disposal a document which contained an academic analysis of rulings in that area.  In general, women’s access had undergone a positive change, he said, highlighting the large percentage of civil trials that were undertaken by women last year.

Regarding the question about judicial power raised yesterday, he reiterated that the Electoral Tribunal had provided a list of its rulings.  Moreover, those rulings were also subjected to a process of dissemination throughout Latin America.  On electoral-political rights, the Tribunal had favoured any interpretation that furthered access to justice.

With respect to the question raised yesterday on the recommendations on the fourth report, the presence of the tribunals was quite varied, he said.  Pages 216 and 217 were related to issues such as proxies for indigenous communities.  He said those rules favoured indigenous citizens.  Among other things, those rules pointed out that elections stemming from customs of indigenous people must have guarantees for women.

JANITZIO DURÁN ORTEGÓN, General Coordinator of Special Projects for the National Commission for the Development of Indigenous Peoples, said indigenous women were trained in rights and gender mainstreaming.  He noted that the income of indigenous women had improved as a direct result of the strengthening of their rights.  Evidence showed that those women were increasingly participating in local public life.  Further, more than 1,000 workshops and training sessions on indigenous women’s rights had been held.

On women’s political participation, BLANCA HERDIA RUBIO, Commissioner for Political Development of the Ministry of the Interior, said that, while much remained to be done, solid strides had nevertheless been made.  Gender quotas were now in place and, among other requirements, 40 per cent of the candidates fielded by political parties must be women.  Currently, some 28 per cent of the Council of Deputies was now female.  While that was still far from the needed 40 per cent, it represented an increase since 2000, when the number had been barely 17 per cent.  “We are on the right track,” she said.

She said that a political reform initiative had been put forward last year, which independent analysts had hailed as the country’s most important exercise in that regard in 30 years.   Mexico was committed to expanding political participation at all levels.  The new plan aimed to provide a platform for citizens to express their views, as well as provide space for citizens to run for political office.

On constitutional reform, Mr. GUEVARA BERMÚDEZ said both chambers of congress must agree to move forward with such actions and then state-level municipalities had an opportunity to examine and comment before any reform proposal moved forward.  The overall exercise aimed to ensure protection for all human rights and to lay out the Government’s obligations and responsibilities to provide such protections.  Mexico was committed to providing its citizens the tools with which to protect their rights.

As for compliance with the rulings of the Inter-American Court, he said Mexico indeed complied with the decisions of that Court and the rulings had routinely been made public -- in print form or on the Internet -- at the relevant municipal levels.  Mexico was keen to harmonize its legislation on forced disappearance with the guidelines set out by the inter-American system.  Among other things, the Attorney General was working to create a database to identify missing persons, especially women and children, throughout the country.  That official was also creating a forensic database so that remains might be identified.

He went on to highlight efforts under way to disseminate information about human rights, and noted that the Government was coordinating on that exercise with international bodies and civil society groups.  He also said the Government was aware of the problem that human rights defenders faced in the country.  It was drafting a programme aimed at integrating the recommendations of the Human Rights Council’s Universal Periodic Review and the national Human Rights Programme 2008-2012.  That effort would also include the creation of a mechanism for the protection of journalists in the discharge of their duties.

Next, ALBERTO MANUEL ALCÁNTARA MARTÍNEZ, Secretary of the Council of the Federal Judiciary, said the judiciary acknowledged and recognized all the human rights treaties acceded to by the Government.  At the same time, he acknowledged that the tenets of such treaties were held above normal laws, but below the Constitution.

Mr. GUEVARA BERMÚDEZ said that discrimination based on sexual preference or orientation was against the law.  Since 2004, a programme on non-discrimination was aimed to protect the rights and address the concerns of Mexico’s lesbian, gay, bisexual and transgender communities.  The National Programme for Human Rights 2008-2012 included provisions to determine the legal status of transgender persons or transsexuals and to ensure that such persons were not discriminated against in the work place.

Mexico was committed to ensuring an open and tolerant society and, to that end, he noted that in specific cases a new birth certificate could be issued bringing that documentation in line with a person’s acknowledged gender.  On “hate crimes”, he said that all capital crimes such as murder were judged the same.  However, a special prosecutors’ office had recently been set up to investigate “wilful homicide based on sexual preference or orientation”.

YÉSSICA DE LA MADRID, Director-General of International Cooperation in the Attorney General’s Office, said Mexico was committed to tackling the issue of torture.  The Human Rights Programme 2008-2012 aimed to create, among other things, a database to track allegations of torture and to promote training among law enforcement, judiciary and medical professionals, in line with the Istanbul Protocol on Torture.  The Attorney General’s Office and all ministries had expressed full willingness to participate in such training programmes.

On other judicial matters, she said that the legal system now presumed the innocence of all accused.  On freedom of expression and press freedoms, she said the Government aimed to provide greater security for journalists.   Mexico believed that any journalist killed was a crime against democracy and was actively seeking to punish those that were responsible.  She requested the Committee to give the delegation the names provided by civil society groups of any journalists harassed or killed in Mexico, so that the Government might follow up.

VICTOR HUGO PÉREZ, Director-General for Human Rights of the Ministry of Public Security, said there was the “remote possibility” that some rights could be suspended in case of public emergency.  However, the Congress must approve such a move, with consensus of all secretaries of state and the Attorney General.  A state of emergency must be declared for only a limited time, and mechanisms for the protection of human rights must be in place.

He went on to stress that at no time had the Constitution been suspended in Chihuahua and Juarez as a result of coordinated efforts to fight and prevent organized crime in those two states.  More generally, the Supreme Court had reiterated the responsibilities of military forces in ensuring public security, including emphasizing that there be “no disruption in public order” when such personnel carried out their duties.  Armed forces had kept their actions within the legal framework.  At no time had greater powers been bestowed upon military personnel -- either currently or before the current effort to root out organized crime.  There had been actions aimed at promoting a culture of respect for human rights throughout the military, he added.

Turing to respect for human rights in prison and detention centres, he acknowledged that Mexico’s penitentiary system was fraught with backlogs and inconsistencies.  The Government was promoting a re-socialization programme by partnering with the private sector to create a “penitentiary industry” for inmates.  Prisons were severely overcrowded and all 32 Mexican states were being urged to work towards a single standard that would be monitored at the national level and which respected human rights.  As for women in prison, he said each state had its own rules.

General JOSÉ LUIS CHÁVEZ GARCÍA, Prosecutor of Military Justice, National Defence Ministry, said he would answer questions on the changes to the code of military justice.  As had been noted by other speakers, the authorities were carrying out a constitutional reform that also involved military justice.  Those changes were being made to ensure the national codes complied with international standards.  On the question of whether victims of military tribunals could see their files, that was, in the military system, just the same as the ordinary legal system.  Victims were entitled to work with the public prosecutor to receive all the evidence that came up in the investigation and at trial.  They could also receive urgent medical and psychological care.  Further, they could ask for precautionary measures to ensure the preservation of their rights.

Experts’ Comments and Questions

KRISTER THELIN, expert from Sweden, said he would like to hear more on the procedural and legal requirements for cases in which torture was admissible, specifically with respect to cases of confessions.  Making a general comment, he noted that this meeting was a public meeting.  But, since it was held in New York, it was not a genuinely public meeting.  Those that wanted to get in should not be stopped by the United Nations bureaucracy.

He had noticed three themes running throughout the shadow report.  First, was the need for the Government to employ its military forces to do police work.  He believed one should be cautious in flat out criticizing the right of the State to use its strongest force to combat organized crime, but it was nevertheless incumbent on the State to ensure that rights were not violated.  He further shared concerns that human rights defenders were threatened.

If he understood the delegation correctly, evidence that had been gathered by torture -- in other words, coerced confession -- could not be introduced in court.  He took comfort in that, but wondered if that was in the Constitution, or was part of penal reform that would not take effect for several years.  He raised that question in light of the assertion that the Covenant’s status was inferior to the Constitution, but superior to lower-level laws.

Turning to article 14 paragraph 3(g) [which guarantees that no one should be compelled to testify against himself or to confess guilt], he noted the demand for confessions in Mexican jurisprudence.  Indeed, in an inquisitorial system such as Mexico’s, the jurisprudence took the position that the earlier a confession, the better.  If Mexico did change to an adversarial system, that would mean that demand would fall away, would it not?  For his part, he strongly urged that change.

CHRISTINE CHANET, expert from France,noted that, in terms of military justice, there was a commitment to modify article 57.  But, she did not think the military, which was trained to carry out war, was the correct institution to uphold law and order.  Indeed, it was difficult to trust it with the mission of rendering justice in matters concerning civilian life.

She further noted that the Mexican delegation had mentioned many action plans.  She hoped there were initiatives within those to train personnel in maintaining law and order during civil demonstrations, especially since methods in combating organized crime were different from those used when entering hostile environments.  She also pointed out that two of her earlier questions had not been answered.

Returning to several of his questions from yesterday, NIGEL RODLEY, expert from the United Kingdom, said that, in 2007, Mexico’s Supreme Court had issued a decision that had international human rights treaties trumping national law in the country’s legal hierarchy under the Constitution.  He was referring to paragraph 59 of the report.  The expert panel had been assured that had not changed.  But, last week’s Supreme Court decision said it was not possible to challenge constitutionally the apparent contradiction of a national law with an international treaty.  He did not understand that.  Were there other means by which the primacy of the human rights treaty obligations over an inconstant national law could be argued other than the way it had been argued by the National Commission for Human Rights in last week’s case?  He hoped some explanation on that could be provided.

On military justice and the Radilla case, he said the decision of the Inter-American Court did not just refer to the inappropriateness of using military justice in disappearances, but using it in any criminal responsibility related to human rights.  He wanted to be clear that that was what the State party accepted -- that military justice should not be applied in criminal cases involving human rights violations.  He was not sure he heard an answer to that question.  Moreover, even up to the Universal Periodic Review last year, Mexico had rejected that.  On torture, he wasn’t sure if there was an answer with respect to where the burden of proof lay.

LAZHARI BOUZID, expert from Algeria, said that some non-governmental organizations had received many complaints about the killing of innocents at the checkpoints set up by the army.  Could more information be provided?

FABIÁN OMAR SALVIOLI, expert from Argentina, said he had been greatly satisfied about the great amount of training provided in gender matters and human rights.  That training, he imagined, had had an effect on sentencing and gender matters. Could additional information be provided -- even in written form -- on the results of that training?  Could more information also be provided on the scope of the Supreme Court’s decisions on constitutional challenges regarding cases of international human rights law?  What actions could be taken to address incompatibilities?  Or did such means of recourse not exist?

The State’s recognition of the need to eradicate violence against women was healthy, he said.  He presumed the statement by Mr. del Castillo that the State’s commitment to the implementation of norm 046 in all cases where women were raped applied to all Mexican states.  As he understood it, all Mexican states recognized rape as an exception to all abortion laws.  Was that correct?

ABDELFATTAH AMOR, expert from Tunisia, thanked the Mexican delegation for their responses, but said he remained perplexed.  He was not sure what article 33 in the Constitution covered.  Given article 33, when there was inconsistency between Mexican law and international treaties, could a judge set aside implementation of that law?  Had that happened?  If so, could examples provided? He raised that in addition to the question of whether parties could contest such an incompatibility.

Committee Chair YUJI IWASAWA, expert from Japan, said the panel appreciated it if the delegation could respond immediately, but itcould provide answers in the remaining second part.  Or, the delegation could submit the answers in writing after the conclusion of the dialogue.

Delegation’s Responses

In response to questions on the matter of torture, ALEJANDRO GÓMEZ SÁNCHEZ, Judge of the Third Federal Criminal Court Specializing in Searches, Raids and Restraining Orders, said that in article 7 of the Covenant, the right to not be tortured was absolute.  There was no allowance for an interruption in its effect.  At no point and under no circumstance was a confession obtained by torture considered to be acceptable.  Among judges, that criteria was absolute.

He further stated that the burden of proof was not on the accused, since that would put the accused at a disadvantage when facing prosecution.  The judge had mechanisms to determine if a confession was obtained through torture or not.  Referring to the specific question on the greater validity given to an early confession, he said it was true that the Supreme Court and other courts had issued opinions indicating that all initial statements could be afforded greater value, since the accused did not have time to reflect.  But, that was not absolute and the judge could consider all parts of the file to determine weight.  In short, the judge could include other statements.

On the non-enforcement of a secondary law in the case of incompatibility with a treaty or some other law, a judge did have the power to set aside a law that was not compatible with the Constitution.  However, when a party believed there was an incompatibility, there was the possibility of bringing a writ of amparo and a first-level court decision could be set aside in cases of such writs.

Next, CARLOS NATARÉN NANDAYAPA, Director-General of the Technical Secretariat for the Reform of the Judicial System, Ministry of the Interior, said there were deep constitutional reforms under way that had effectively redesigned the judicial system.  No effort had been spared to close gaps in human rights protection, especially regarding the treatment of defendants and collection of evidence.

At the same time, he acknowledged that it was proving difficult to harmonize the new framework in all 32 states, but the Government was committed to ensuring broad institutional reform and reorganization throughout the entire country.  A specialized body had been created in the Interior Ministry to provide technical assistance in rolling out the changes.

General JAIME ANTONIO LÓPEZ PORTILLO ROBLES GIL, Director-General for Human Rights in the National Defence Ministry, said Mexico was committed to bolstering its judicial and military procedures.  It had taken on board the recommendations of the Human Rights Council and was, among other things, taking allegations of torture very seriously.

ALEJANDRO NEGRÍN MUÑOZ, Director-General of Human Rights and Democracy in the Foreign Ministry, said Mexico was pressing ahead with the ratification of international instruments, including on the rights of persons with disabilities, and the Optional Protocol to the Covenant on Social, Economic and Cultural Rights.  As for reservations to the Covenant on Civil and Political Rights, he said the constitutional reforms under way would allow the Government to remove its reservations to article 13 [protection against arbitrary expulsion of aliens].  Other reservations or exceptions were being reviewed.

Following that intervention, Mr. ALCÁNTARA MARTÍNEZ said the Council of the Judiciary was the body charged with training the country’s legal officials, and its focus was always on ensuring the protection and promotion of human rights.  The constitutional reforms under way were not whittling away at protections, merely clarifying their extent and harmonizing them with Mexico’s national and international obligations.

On allegations of torture, Ms. DE LA MADRID said the Public Prosecutor’s Office had the duty to perform an investigation prior to the official start of a case.  On the Istanbul Protocol, she highlighted the specialized training that was under way to inform judicial personnel about that set of guidelines for the assessment of persons who alleged torture and ill treatment, for investigating cases of alleged torture and for reporting such findings to the judiciary and any other investigative body.

Next, Captain ÁLVARO FLORES GONZÁLEZ, Navy Secretariat, said the country’s defence bodies were aware of public policy and legislation aimed at protecting human rights.  Administrative bodies had been created within the army and the navy to follow up on implementation of the 2008-2012 Human Rights Programme.  Some of the areas covered included conduct of armed forces personnel, treatment of prisoners and the use of force, all of which were in line with resolutions and decisions adopted by the United Nations.

Mr. NEGRÍN MUÑOZ, responding to written questions, said that, with respect to articles 9 and 14 [liberty and security of person and due process], he would like to underscore that the constitutional reform of 18 June 2008, which assured accusatorial justice and the right to face different parties, also strengthened certain rights for both the accused and the victim.  He said the implementation was a gradual process to be concluded over 8 years and by the end of 2016.  The central aspect of the reform targeted normative structures that needed to be modified and included changes to a number of laws in every state.  The design for that reform included training and budgetary changes.  Thirteen states were already fully immersed in the reform process and, in a number of states, oral trials were already being held.

He said that on preventive detention, or house arrest, the normative framework for fighting organized crime was governed by the federal law against organized crime, which addressed all phases of investigation and prosecution of organized crime.  The constitutional reform set forth house arrest as a means of combating organized crime.  Its goal was detaining the person who was probably responsible for a crime and did not go against international standards in human rights.  Indeed, it was not used arbitrarily; rather, it was used only at the behest of the Ministry of the Interior through the judiciary and was time bound.  Special judgeships had been set up, as had procedures for the defence of the accused.  Moreover, the use of house arrest was limited to organized crime.

Noting that the Committee had asked about torture in the context of house arrest, he said that detention had different oversight mechanisms that ensured the prevention of torture.  First, there was judicial oversight.  Moreover, the individuals in such detention were visited by representatives of the national mechanism to prevent torture.  The accused also had the possibility of bringing allegations of torture before the judge who granted house arrest.

Turning to the issue of the military justice system, he stressed that Congress had five initiatives to bring reform to that system.  On the question related to article 10 [overcrowding of penal facilities], he said the relevant authority had provided information on that, while underscoring that the penitentiary system had suffered one of the greatest deteriorations of any Government institution.  A centrepiece of the new focus on that area was the rebuilding and renovation of infrastructure and facilities.

He reported that there was a process for ensuring that migratory stations used Global Positioning System (GPS) tools.  The Government also sought to make the process dignified.  Regarding the expulsion of aliens, he stated that the recent changes in Mexico in that area were a clear indication of the State’s commitment to international norms.  There was also full openness to actions of protagonists, including human rights organizations.  Indeed, article 33 was no longer used in Mexico.

Continuing on article 18 [freedom of thought, conscience and religion], he said Mexican legislation did not recognize that persons required to serve military duty could invoke conscientious objection as a form of exemption.  At the same time, however, the Ministry of Defence was allowed to release those persons that did not meet the requirements to serve in the military, including on mental, physical or moral obstacles.

Turning to matters related to freedom of expression, assembly or association [articles 19, 21 and 22], he said the Government had been discussing alternatives that would, among other things, strengthen the work of the National Commission for Human Rights, and the possibility of federalizing offences that infringed on the rights of journalists.  Further, the Senate was reviewing an amendment to the penal code which would punish those that “interfered with the exercise of freedom of expression”.

The Government had been implementing programmes regarding attacks on journalists and human rights defenders, with the cooperation of civil society groups, aiming to strengthen mechanism for the protection of those persons.  Congress had approved a measure to ensure the right of secrecy for journalists and, in 2006, a special prosecutor had been appointed to investigate crimes committed against journalists.  As of last year, that official, with a staff of 24 civil servants, had dealt with 325 cases.

On matters regarding the rights of the child, including migrant children [article 24], he said human trafficking was a crime in each and every one of Mexico’s states and special measures were taken to ensure the protection of children.  The Government had also appointed child protection officers that were posted at the borders and at migration stations.  That was a programme that could be considered by other countries.  Those officials made recommendations on medical treatment, examined the general condition of migrant children and, in some cases, accompanied them to their final destinations.  Also on that point, he highlighted the efforts of the “From the Street to life”, which, as of 2008, had dealt with 23,000 boys and girls, and had financed initiatives under way at some 2,300 civil society organizations working with street children.

On the rights of indigenous peoples and minorities [articles 25 and 27], he noted constitutional reform, under way since 2001, to bolster the rights of such persons.  The federal Government had a nationwide programme aimed at enhancing the participation of indigenous communities in making decisions that affected them.

Next, he turned to efforts to disseminate information about the Covenant and the work of the Committee.  Spreading word about Mexico’s actions and obligations under international human rights treaties had been driven by three things: its appointment of a national commissioner for human rights; its involvement in the inter-American human rights system; and the fact that it had issued an open invitation for regional and international human rights procedures and mechanisms to visit the country.

Indeed, Mexico fully supported the international human right system and that commitment had led to a wide dissemination of relevant information on Mexico’s compliance with global norms throughout the country, including through cooperation with civil society groups and several universities.  In drafting its current report, Mexico had drawn on the expertise of 15 institutions, many of which had sent their representatives to New York.   Mexico was a very open country with a very active civil society and that had allowed it to make solid progress on its international obligations.

Experts’ Questions and Comments

Opening the panel’s first round of comments on the delegation’s presentation on the second half of the Covenant’s articles, Mr. RODLEY said that, despite the whole array of practices that were supposed to prevent torture, it still happened.   Mexico had not been deprived of recommendations on methods that would “pretty much ensure” torture did not happen.  It was, therefore, necessary to ask why some of those ideas had not been adopted.  Indeed, unless there had been a change since the Committee against Torture adopted its concluding observations [to Mexico’s fourth periodic report] in 2007, there was concern on that front.

Referring to the delegation’s response to his earlier question on the burden of proof, he said he had not heard what he wanted to hear.  Rather, he had heard that the judge “somehow worked out” whether torture had or had not occurred and that was not necessarily wholly encouraging.

Noting that both the issue of constitutional changes and military justice had been very well discussed, he turned to issue 15, which dealt with arraigo, or house arrest, and warned the delegation that the Committee’s interpretation of article 9 [liberty and security of person and due process] was more sceptical of preventive investigative detention than the Mexican delegation.  If he understood correctly, a judge could order an issue of arraigo up to 40 days without the presence of the accused.  Was that correct?  What protection did the accused person have, particularly when, for example, they were detained for up to five days by the military before the arraigo order was even sought?  Further, what evidence did the judge require -- both in principle and in practice?

Continuing with the question of house arrest, he said that, while the delegation stated no complaint had been received nor any investigation made by Mexico’s own National Human Rights Commission as to instances of torture in arraigo cases, there were cases that had been referred to the Inter-American Court.  How did that impact on the delegation’s description of the mechanism preventing torture in such cases?

On prison overcrowding, he noted that, according to the international ranking of penal studies, Mexico ranked sixth in the world in terms of the number of people incarcerated per thousand.  Moreover, he was shocked to see the information on the rates of overcrowding in women’s prisons, which stood at 229.39 per cent overpopulation, with one prison in the federal district at over 800 per cent.  That latter rate suggested that people were basically having to sleep in shifts.  He invited the delegation to reassure him on that front, particularly that work was being done to address that matter.

Mr. SALVIOLI asked if anyone had been convicted through judicial proceedings for the large number of attacks on journalists in Mexico.  Also, on indigenous people, he wanted to know if there were consolidate plans or merely a theoretical framework for the protection of indigenous people.

RAFAEL RIVAS POSADA, expert from Colombia, thanked the Mexican Government’s efforts to clarify many of the points which the panel members had raised.  In particular, in its written response to issue 19 [right to privacy], the delegation had not been clear and Mr. Negrín Muñoz had provided further information that helped alleviate the Committee’s concerns.

Regarding military service under article 18 [freedom of thought, conscience and religion], he said the possible violation of that right constituted an attack not just on the right of privacy, but on a failure to respect conscientious objection.  It was important to recognize the right to object conscientiously one way or another.  He reiterated the Committee’s interpretation that it was not necessary to justify objections for religious reasons, but simply from freedom of conscience.  The recognition of conscientious objection should also be based on the fact that alternative services, civil or otherwise, could be employed.

Taking the floor again, Ms. CHANET fully supported expert Rivas Posada’s comments on conscientious objection.  She hoped the Mexican delegation would heed his recommendations and work to create legislation that would allow such objections to be invoked as a cause for exemption from military duty.  Turning to other matters, she asked for further information about the occurrence of honour killings in the country, as well as for more information about laws penalizing slander and libel.

She was also very concerned about what she perceived as ongoing persecution and harassment of journalists and human rights defenders.  She called for “very serious” measures to be taken to protect the rights of those persons.  Indeed, it appeared that any civic actor that stood up for the rights of minorities or indigenous people, or which called for enhanced human rights protection for citizens at large, could be killed.  Could the delegation please provide more information on that issue?  It was too serious a matter to just “wave the magic programme wand”, and think that it had been effectively addressed.

IULIA ANTOANELLA MOTOC, expert from Romania, was also concerned about laws penalizing slander and asked for more information.  She also echoed the concerns of other experts regarding the treatment of indigenous people.  There seemed to be a lot of “measures in play”, but very little progress.

The final expert in this round of comments and questions, JOSÉ LUIS PEREZ SANCHEZ-CERRO, from Peru, encouraged the State to eliminate matters regarding preventive detention that did not jive with the tenets of the Covenant.  He was also concerned about impunity from crime committed in Mexico.  On freedom of expression, he believed that the country’s libel and slander laws could stifle dissent or journalistic expression.  He also stressed the need for the Mexican Government to work harder to ensure that laws and programmes touted at the national level were fully implemented at the state and municipal level.

Delegation’s Responses

Mr. GÓMEZ SÁNCHEZ said Mexican judges were fully aware of the laws regarding torture and the extraction of evidence by force.  The country’s legal framework gave value only to testimony provided by a lawyer to a judge and in the presence of a public prosecutor.  On other judicial matters, he said that at no time did a judge order pretrial detention based on speculation or supposition.  The Government guaranteed the protection of the rights of all persons subjected to such detention.  For example, such persons were never held in secret locations and they were never denied communication with legal authorities.  Generally, public authorities were under so much pressure to protect such persons that there was virtually no chance for abuse.  But, when abuse did occur, the Government moved swiftly to investigate the matter and prosecute those involved.

Mr. PÉREZ said that article 16 of the federal police law granted the possibility of inspection during transit, but such inspections had to employ the relevant manuals and protocols.  He pointed out the efforts being made to prevent abuse that violated human rights in those cases in federal agreements.  He noted further that the armed forces’ participation in the maintenance of law and order was circumscribed to organized crime, while the police continued to deal with civil demonstrations.

On prison overcrowding, he reiterated that the main way the Government was working to reduce prison overcrowding was building new structures.  Fifteen new prisons were currently under construction, with 29 already having been finished.  Pre-release facilities were also being bolstered as part of prevention efforts.  He also added that the new police model proposed by the Ministry of Public Security was based on scientific principles, as well as on strict professional standards.  That new police model also assessed police activity through civic participation.

Mr. DURÁN ORTEGÓN said that, while article 2 empowered state legislatures to expand on indigenous rights, there was a challenge in harmonizing federal laws with local ones to ensure indigenous people’s rights were guaranteed.  He would forward a number of reports on that issue to the expert panel, although a number of reforms had already taken place.  Indeed, the Mexican State believed it was important for indigenous communities to be consulted on issues that affected them and on projects that took place where they lived.  Beyond consultation, the State also fostered mechanisms to ensure the participation of indigenous peoples in other areas, such as the evaluation of projects.  To that end, a pilot project was under way by which indigenous people directed some programmes.  Also under way was a consultation on traditional knowledge.

Following the United Nations Declaration on the Rights of Indigenous Peoples, Mexico had disseminated information on and copies of the Declaration, he said.  Moreover, the Declaration had been translated into 18 indigenous languages.  The Government also aimed to expand programmes to support indigenous children.  Notably, Mexico excelled in providing school shelters, which was not limited to physical infrastructure, but extended to programmes that provided different kinds of care.  Health caravans provided medical care to indigenous populations in remote locations.

Taking up the questions related to mandatory military service and conscientious military objectors, General CHÁVEZ GARCÍA said military service had been a changing concept in Mexico.  Currently it was “military” in name only, given that the forces provided a number of other community services.  Although Mexico did not recognize military objectors in a strict sense, it recognized certain cases, such as those based on religious objections and duties.  So far, he noted, there had been no case in which the exception had been used and should it be raised, there were a number of avenues the person could take to fulfil their duties.

Mr. GUEVARA BERMÚDEZ said the State sought to protect human rights defenders and journalists.  It investigated crimes against such groups as a federal crime. It recognized that not all laws regarding slander and libel in the 32 states had been repealed.  However, there was a mechanism between the states and the federal Government that provided the means to recognize concerns in those areas.

Next, Ms. DE LA MADRID reiterated that any confession or testimony given without the presence of legal assistance had no probative value.  When alleged torture victims appeared before the court, the Public Prosecutor had a constitutional obligation to open an investigation into the matter.  As for the work of the Special Prosecutor dealing with crimes against journalists, she said that, before bringing a case, that official must establish the quality of the journalist and establish that the crime committed abrogated freedom of expression or opinion.  The Special Prosecutor was also charged with safeguarding the property, as well as the persons of journalists, so they would be able to carry out their work.  She added that he Government was working with civil society on a protocol for the protection of journalists.

Experts’ Comments and Questions

Mr. RODLEY said he was pleased to hear that judges did not just issue an order of pretrial detention on the basis of mere speculation, or allegation.  At the same time, he would like to know what level of information would have to be provided.  While he was also pleased to hear that pretrial detainees were not being held in secret locations, he wanted more information about where they were detained.  There had been reports that such persons were being held in military bases.  Was that true?

Next, Ms. MOTOC asked questions about the practice of “preliminary consent” before projects were carried out that might harm indigenous lands.  Was that just a cursory consultation, or did the Government actually seek the views of indigenous communities?  What happened if an indigenous community objected to a proposed Government-backed project?

RAJSOOMER LALLAH, expert from Mauritius, said that the Committee continued to hear about programmes, but was provided very little information about measures being taken to ensure that journalists and human rights defenders were not being killed for carrying out their work.  He was also concerned about what appeared to be a fusion of the military and civilian authorities.  He was very confused, especially about who was in charge of such personnel -- military or civilian authorities -- when they carried out their work in civilian areas.  He said that a serious attempt should be made to address that issue in Mexico’s next report.

Delegation’s Responses

Responding, Mr. GÓMEZ SÁNCHEZ said the Government was very demanding about the standard of evidence required to authorize a pretrial detention.  The order was not triggered by an anonymous compliant; there must be clear evidence that the person of concern had committed the crime alleged.  As for the location where detainees were held, he said such persons were generally placed in federal detention centres and they were allowed to communicate with legal authorities and family members, among others.

In addition, detainees with special medical needs had also been held over in hospitals to ensure they had proper care.  His office could provide specific figures to give the Committee a complete picture of how the measures taken fell within the ambit of constitutional provisions.

Continuing on that point, Ms. DE LA MADRID said detainees could be moved from one location to another, but only to address medical, security or logistical concerns.  The Centre for Federal Investigations monitored such transfers to ensure high international standards.  It was “totally unlikely” that detainees could be abused, even during such transfers, because the detention process was closely monitored by a host of Government agencies.

Mr. DURÁN ORTEGÓN said the consultation with indigenous groups was a thorough process and included broad participation with concerned people and groups.  At the same time, he said, the entire process was being examined at many levels to ensure that the rights of indigenous people were respected and promoted.

Next, General CHÁVEZ GARCÍA said 18-year-olds served a mandatory year in the military, as a way to introduce them to social work, enhance their respect for institutions and build admiration for their country.

Returning to the issue of protecting journalists, Mr. GUEVARA BERMÚDEZ said the Government moved swiftly to investigate allegations of harassment or killing of journalists or human rights defenders.  The Government would also provide protection for such individuals when it received complaints from civil society groups.

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For information media • not an official record