Rights of the child (Article 19 of the American Convention)
The petitioners allege that the facts established in this case
point to a violation of the rights of the child protected under the
American Convention. The
State did not specifically address this claim.
Article 19 of the American Convention guarantees that every child
right to the measures of protection required by his condition as a minor
on the part of his family, society, and the state."
The Inter-American Court has determined that "both the
American Convention and the Convention on the Rights of the Child form
part of a very comprehensive international corpus
juris on the protection of children" that serves "to
determine the content and scope of the general provisions contained in
Article 19 of the American Convention."
The Convention on the Rights of the Child was in effect in Mexico
on the date on which the events related to this case occurred.
Article 2 of this instrument states:
1. States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.
States Parties shall take all appropriate measures to ensure that
the child is protected against all forms of discrimination or punishment
on the basis of the status, activities, expressed opinions, or beliefs of
the child's parents, legal guardians, or family members.
The aforementioned instrument also states that "no child shall
be subjected to arbitrary or unlawful interference with his or her
privacy, family, home or correspondence, nor to unlawful attacks on his or
her honor and reputation," and that " the child has the right to
the protection of the law against such interference or attacks"
The States parties to the Convention on the Rights of the Child
undertake to ensure that no child is submitted to torture or other cruel,
inhuman, or degrading treatment or punishment or is illegally or
arbitrarily deprived of his liberty and, at all times, "is treated
with humanity and respect for the inherent dignity of the human person and
in a manner which takes into account the needs of persons of his or her
age;" and that in accordance with the obligations assumed under
international humanitarian law, "the States Parties shall take all
feasible measures to ensure protection and care of children who are
affected by an armed conflict" (Article 37).
The Committee on the Rights of the Child recommended that the
Mexican State "should intensify its action against all violence
resulting in cases of ill-treatment of children, in particular when
committed by members of the police forces and security services and the
military. The State party should ensure that cases of crimes committed
against children by members of the armed forces or the police are tried
before civilian courts."
Celia González Pérez was 16 years old at the time that the acts
described in this report took place.
In the view of the Inter-American
Commission, the illegal detention, followed by the physical abuse and rape
of the adolescent, as well as the subsequent and continuing impunity of
the perpetrators, is a clear violation of the duty of the Mexican State to
accord her the special protection guaranteed under the American Convention
and other applicable international instruments.
In light of the foregoing, the IACHR has determined that the
Mexican State is internationally responsible for the transgression
involving Celia González Pérez under Article 19 of the American
Convention, based on the general obligation to respect and guarantee
rights provided for in Article 1(1) of this international instrument.
The right to a fair trial and to judicial protection (Articles 8
and 25 of the American Convention) in the investigation of the acts of
torture (Articles 6 and 8 of the American Convention to
Prevent and Punish Torture)
The petitioners maintain that they fulfilled the requirement to
file the appropriate internal complaints offered under the Mexican system
to resolve the matter reported, and that the transfer of competence to the
military authorities was a violation of the Mexican Constitution and of
the duty to investigate the acts that involve the violation of rights.
In this regard, the petitioners state:
From the time of the transfer of competence to the military courts in September 1994, no significant progress has been made with the investigation, despite the fact that the civil court ordered the Office of the Public Prosecutor for Military Justice to continue the investigation. The case has been closed since February 1996, which represents a failure to fulfill the obligation to investigate.
fact that Mexican legislation stipulates that a military court will
prosecute common offenses committed by military officers while on duty or
as a result of acts related thereto, and the defense offered by the
government that a military court should prosecute this case implies that
the detention, torture, and rape of the victims were acts conducted while
these persons were on duty or conducting acts related thereto.
The victims in this case reported the acts of torture and rape,
which allegedly occurred while they were illegally detained, and which are
serious offenses in Mexico, to the Office of the Attorney General of the
Republic, and described the violation of the human rights guaranteed in
the American Convention.
The report, which is accompanied by a certificate issued by a
gynecologist, was confirmed and expanded upon before the PGR by Ana and
Beatriz González Pérez.
The petitioners add that this medical examination "indicates
that sexual intercourse had taken place at the time of the report, and
that the rape took place amidst great commotion."
This is borne out by "the statement of at least seven
soldiers, which corroborated the account provided by the victims, since
they explicitly or tacitly admitted that they had engaged in acts of
violence against the sisters and their family."
On September 2, 1994, the PGR decided to turn over Preliminary
Investigation 64/94 to the Office of the Public Prosecutor for Military
Justice "because it did not have jurisdiction over the matter."
The representative of the González Pérez sisters in Mexico were
opposed to the use of the military court since, in their view, "in
this case, the military court is synonymous with privilege, impunity, and
partiality, and they would have to subject themselves to a military legal
system after being sexually assaulted by elements of the same group."
To demonstrate the partiality of the military courts in this
instance, they cite Bulletin Nº 38 issued on July 3 by the Department of
National Defense (SEDENA), in which this authority "vigorously denied
the false charges made against military personnel, and reserved the right
to take legal action against persons or institutions who slander our
The State does a detailed analysis of the military preliminary
investigation, which includes statements provided by several persons
attesting to the good conduct of the men in uniform and denying that the
acts occurred. The Office of
the Public Prosecutor for Military Justice describes the proceedings in
the following manner:
obtained further testimony from the civilians who witnessed the events,
who in short said that at no time was there any physical or verbal abuse
by the military personnel against the alleged injured parties, much less
sexual assault. He obtained further testimony from the military personnel
involved in the presence of their respective court-appointed defense
counsel, who offered rebutting for the confrontation between his clients
and the alleged injured parties, it not being possible to compare that
evidence due to the nonattendance of the alleged injured parties. At the
request of the Military Prosecuting Attorney, staff from the National
Commission on Human Rights were present as observers of the way the
proceedings were put into practice, as were translation experts from the
National Institute of Indigenous Affairs, and experts in medical law
specializing in gynecology, all of whom are civilians and residents of the
area. He summoned Mrs. Martha Guadalupe Figueroa Mier and Mr. Roger
Maldonado Baqueiro, (emphasis in the original) alleged legal
representatives of the injured parties, of whom only the former appeared
in court, she being noticeably annoyed, haughty, and intimidating, but
with extreme nervousness (sic). By reason of the foregoing, the Head of
Preliminary Inquiries of Military Justice concluded that the charge
against the military personnel is totally and manifestly false.
The State’s analysis continues with a section entitled
“Considerations regarding the competence of the military courts to take
cognizance of the facts”. In this section, the State indicates that
“the existence of the War Court is in keeping with the very nature of
the Armed Forces institution and its unique way of life,” and explains
that the prerequisites for the involvement of that court are the
following: the perpetrator of the infraction is a member of the Armed
Forces; the military officer is carrying out his duty or engaging in acts
relating thereto; and that the infraction is a breach of military
discipline. The State then applies those prerequisites to the case under
There is considered to be no problem whatsoever with the first prerequisite since the complainants themselves expressly accept that the persons involved in the crime are members of the Armed Forces.
As to the second of these, regarding participation in the crime while on duty or engaging in acts relating thereto, duty should be understood as any act executed by military personnel, either individually or collectively, to carry out the orders they receive in the course of performing the tasks assigned, depending on their rank and in accordance with the laws, regulations, and provisions of the Army. (Article 37 of the Army Corps Service Regulations)
relation to the third element, that the infraction or offence must be in
breach of military discipline, Article 57 of the Code of Military Justice
is very explicit when it establishes that the following …are offenses in
breach of military discipline (…) II. Common or federal offenses in any
of the following circumstances: a) They were committed by military
personnel while on service or in the performance of acts thereof (emphasis
in the original)
The State concludes that this case "is based on vague
hypotheses and circumstantial evidence rather than on firm evidence, a
prime example of this being a newspaper article and a report filed with an
authority that has no jurisdiction over the matter."
The State has not disputed the filing of the complaint in Mexico or
the medical evidence that the victims enclosed therewith.
The Inter-American Commission notes that, in light of the serious
evidence submitted to the authorities, the Mexican State had an obligation
to undertake an prompt, impartial, and effective investigation, in
accordance with the guidelines stipulated in its own domestic legislation
and the international obligations freely assumed by this State.
The information available in this case file reveals that the
authorities in the Office of the Attorney General of Mexico transferred
their competence to the Office of the Public Prosecutor for Military
Justice, which in turn completely ignored the evidence submitted by the
victims and proceeded to order another gynecological examination for them.
examination as part
of the military investigation,
the PGJM closed the case on September 25, 1995, based on the evidence
provided by persons living in the area and the "lack of interest,
from a legal standpoint, of the victims and their representatives,"
because " the criminal evidence is not in any way credible, nor is
the probable liability of the military officers."
With regard the State's allegation of lack of interest on the part
of the representatives of the victims, CEJIL maintains that the medical
examination was done immediately after the events took place, and that the
results were submitted to the Office of the Attorney General and
subsequently confirmed through a statement provided by the victims.
Based on this, the petitioners allege that evidence exists of the
infractions that were committed, and that the failure to respond was due
to the difficulty in finding the women, who, as a result of the events,
were forced to leave their communities and families, and were rejected by
the indigenous culture, in accordance with its customs.
The Mexican State notes that in accordance with Mexican
legislation, the investigation of the events was the responsibility of the
PGJM since the military officers allegedly committed the acts of abuse of
It adds that the Office of Complaints and Citizen Affairs conducted
an investigation based on the article published in La
Jornada newspaper on June 17, 1994, and informed SEDENA of the
statements made by several persons with respect to the facts.
It further states that the military authorities ordered an
investigation on June 25, 1994 "in order to determine whether, based
on the facts in question, a breach of military discipline occurred.
The Inter-American Commission must determine whether the actions
undertaken by the Mexican courts in this case meet the human rights
guidelines that guarantee the right to a fair trial. Article 8(1) of the
American Convention guarantees each person the right "to a hearing,
with due guarantees and within a reasonable time, by a competent,
independent, and impartial tribunal" in the determination of his
rights and obligations of a civil, labor, fiscal, or any other nature.
This guideline is compatible with Article 25 of the American
Convention, which states:
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 recognized by the
constitution or laws of the state concerned or by this Convention, even
though such violation may have been committed by persons acting in the
course of their official duties.
The States Parties undertake:
to ensure that any person claiming such remedy shall have his
rights determined by the competent authority provided for by the legal
system of the state;
to develop the possibilities of judicial remedy; and
to ensure that the competent authorities shall enforce such
remedies when granted.
The Inter-American Court has indicated that pursuant to Articles 8
and 25 of the American Convention, the States parties have an obligation
to provide effective judicial remedies to victims of human rights
violations and to support them in accordance with the rules of due
is included in the general obligation of these States to guarantee the
free and fair exercise of rights recognized under the Convention with
respect to each person under their jurisdiction.
Rape is an aberrant act, which, because of its very nature,
requires evidence that is different from other crimes.
Subjecting the victim to another episode of humiliation or one that
causes that person to relive the events involving the most private parts
of the person's body in the form of review proceedings should be avoided.
Consequently, the IACHR holds the view that the investigating
authorities should analyze the circumstances surrounding the case and all
available elements such as statements, circumstantial evidence,
presumption, and other legal elements.
In the absence of evidence, the medical examination must provide
all the guarantees for fully respecting the dignity of the person and for
considering that individual's mental and psychological condition.
In the case of the González Pérez sisters, it has been noted that
the medical examination was duly conducted; however, because of an
unreasonable and arbitrary decision of the Mexican authorities, it was not
The document quoted in this report serves as solid evidence, and is
certainly more convincing than the documentation usually available to
victims and their representatives in rape cases, for the reasons explained
The European Court of Human Rights has established that when an
individual files a complaint claiming that he/she has been tortured by
State agents, the concept of effective remedy includes, in addition to the
payment of compensation where appropriate, an investigation that permits
identification and punishment of the guilty parties.
In analyzing a case similar to the one described in this report,
this court added:
requirement related to a complete and effective investigation of a
complaint alleging the rape of an individual while in detention by State
agents also calls for an examination of the victim, with due consideration
being shown by medical professionals specializing in this area whose
impartiality is not affected by the instructions issued by the Office of
the Public Prosecutor regarding the scope of the investigation.
The United Nations Commission on Human Rights has formulated a
series of principles, mentioned above, on the manner in which an
investigation into acts of torture should be conducted.
Particularly relevant to this analysis is the principle stipulating
that "States shall ensure that complaints and reports of
torture or ill-treatment shall be promptly and effectively
investigated…. the investigators, who shall be independent of the
suspected perpetrators and the agency they serve, shall be competent and
Also, it should be noted that point 5(f) of the Draft Declaration
of the Independence of Justice (known as the Singhvi Declaration) states
that the competence of military courts shall be limited to military
In its report on Mexico, the United Nations Special Rapporteur for
Torture has stated that "military personnel seem to enjoy immunity
from civil courts and are in general protected by military justice …
neither the National Commission on Human Rights nor the Office of the
Public Prosecutor for Military Justice informed the Special Rapporteur
that proceedings related to torture had been instituted against specific
Based on this report, the United Nations independent expert
recommends that "the serious offenses perpetrated by the military
against civilians, in particular torture or other cruel, inhuman, and
degrading treatment should be reported to the civil courts, whether or not
they occurred in the discharge of their duties."
In this case, the internal complaint filed for the purpose of
investigating the rape and torture of the González Pérez sisters was
transferred from the regular courts to the military courts.
In the past, the Inter-American Commission has maintained that
"when the State permits investigations to be conducted by the
entities with possible involvement, independence and impartiality are
clearly compromised," as a result of which it is "impossible to
conduct the investigation, obtain the information, and provide the remedy
that is allegedly available," and what occurs is de facto impunity, which "has a corrosive effect on the rule of
law and violates the principles of the American Convention."
In particular, the IACHR has determined that, as a result of its
nature and structure, military courts do not meet the requirements of
independence and impartiality imposed under Article 8(1) of the American
In that regard, the Inter-American Court ruled:
a democratic State governed by the rule of law, the scope of authority of
criminal military courts must apply on a limited and exceptional basis and
be aimed at the protection of special legal interests that are tied to the
function assigned by law to the military forces.
Consequently, the prosecution of civilians cannot fall under
military jurisdiction and military officers must be prosecuted for the
commission of only those offenses and infractions that, because of their
nature, have an adverse effect on the assets of the military.
The acts of abuse committed by the members of the Armed Forces that
deprived the four victims of their liberty and the rape of the González Pérez
sisters, one of whom was a minor at the time of the incident, cannot in
any way be considered acts that affect the legal assets of the military,
nor does this case pertain to offenses committed while military officers
were discharging legitimate functions entrusted to them under Mexican
legislation, since, as has been noted, this was a chain of acts of
violation that began with the arbitrary detention of the four women.
In other words, even if there was no evidence of common offenses
that constitute human rights violations (and this is not the case here),
there is no link to an activity by the Armed Forces that can justify the
involvement of the military courts.
The Inter-American Convention stresses that torture in all its
forms is categorically prohibited by international law,
and, for this reason, the investigation into the facts related to this
case by the military courts is completely inappropriate.
The American Convention imposes on States the obligation to
prevent, investigate, identify, and sanction the perpetrators of and
accessories to human rights violations.
As the Inter-American Court has indicated:
25 in relation to Article 1(1) of the American Convention obliges the
State to guarantee to every individual access to the administration of
justice and, in particular, to simple and prompt recourse, so that, inter
alia, those responsible for human rights violations may be prosecuted
and reparations obtained for the damages suffered.
As this Court has ruled, Article 25 "is one of the fundamental
pillars not only of the American Convention, but of the very rule of law
in a democratic society in the terms of the Convention."
Because of the obligations mentioned above, the State has an
obligation to investigate human rights violations, prosecute those
responsible, compensate victims, and avoid impunity.
The Inter-American Court has indicated in this regard that the
State must combat impunity, since this encourages the chronic repetition
of human rights violations and strips the victims and relatives of the
ability to defend themselves.
In the case under analysis, the Inter-American Commission holds the
view that the State has failed to fulfill its obligation related to
guarantees under Article 1(1) of the American Convention, which
establishes the obligation of the States parties to guarantee the exercise
of the rights and freedoms recognized in that instrument with respect to
persons under their jurisdiction.
This obligation includes the duty to organize the government
apparatus, and, in general, all structures through which State power is
exercised, in such as way that they are capable of ensuring the full and
free exercise of human rights in a legal context.
As a result of this obligation, the States parties have a legal
duty to prevent, investigate, and sanction the violation of all rights
protected under the American Convention.
The Inter-American Court has maintained that:
the State apparatus allows this violation to go unpunished and fails to
re-establish, insofar as possible, the full exercise by the victim of his
rights, then it can be said to have failed in its duty to guarantee the
free and full exercise of rights by persons under its jurisdiction.
Impunity has been defined as "the failure by States to fulfill
their obligation to investigate the violation of rights and to impose the
appropriate measures on the perpetrators, in particular from a legal
standpoint, so that they can be prosecuted and receive the appropriate
penalties; to guarantee victims effective resources and remedy for
prejudice suffered; and to take the measures necessary to avoid the
repetition of these violations."
In its report on the human rights situation in Mexico, the IACHR
concluded that "torture and cruel treatment continue to be used in
some sectors of the security forces in that country, in particular during
the preventive detention and preliminary investigation phases, as a way of
obtaining confessions and/or intimidation," and that "the
impunity of torturers is commonplace."
Based on the conclusions of this report, the IACHR made the
following recommendations to the Mexican State, several of which are
particularly applicable to this case.
should adopt the measures necessary to ensure that acts of torture are
classified and sanctioned as such by the appropriate judicial organs, in
accordance with the international definition of violation of the right to
should issue the pertinent instructions so that the public agents that
make arrests inform the detainees at the time of their arrest of the
reasons for the deprivation of their liberty, and of their rights and
guarantees thereof, in a manner that is comprehensible to them, in keeping
with their education and cultural level and in their language.
should investigate and sanction persons responsible for acts of torture.
should take the measures necessary to rehabilitate and compensate, fairly
and adequately, the victims of torture.
appropriate authorities should pay special attention to and monitor the
activities of state agents (army and police) in zones of conflict, in
order to avoid torture.
criminal acts committed against members of indigenous communities,
particularly by public agents or with their consent or approval, should be
investigated and sanctioned under the law, and the victims of these crimes
or their relatives should be provided with compensation, including
should investigate and sanction officials who sexually abuse female
This case is characterized by complete impunity, since, more than
six years after the date of the human rights violations established herein
were committed and reported, the State has failed to fulfill its duty to
prosecute and sanction those responsible for violation of the right of the
González Pérez family to humane treatment, and has not provided
compensation for the injuries or loss caused as a result of these
violations. On the contrary,
the investigation was transferred to the military courts, which clearly
has no competence with respect to the matter and lacks the impartiality
necessary to establish the facts in accordance with due process.
The Inter-American Convention to Prevent and Punish Torture, which
was in effect in Mexico when the events took place,
accordance with the terms of Article 1, the States Parties shall take
effective measures to prevent and punish torture within their
States Parties shall ensure that all acts of torture and attempts to
commit torture are offenses under their criminal law and shall make such
acts punishable by severe penalties that take into account their serious
States Parties likewise shall take effective measures to prevent and
punish other cruel, inhuman, or degrading treatment or punishment within
States Parties shall guarantee that any person making an accusation of
having been subjected to torture within their jurisdiction shall have the
right to an impartial examination of his case.
if there is an accusation or well-grounded reason to believe that an act
of torture has been committed within their jurisdiction, the States
Parties shall guarantee that their respective authorities will proceed
properly and immediately to conduct an investigation into the case and to
initiate, whenever appropriate, the corresponding criminal process.
all the domestic legal procedures of the respective State and the
corresponding appeals have been exhausted, the case may be submitted to
the international fore whose competence has been recognized by that State.
The IACHR concludes that the State has failed to fulfill its
obligation to investigate the deprivation of liberty, rape, and torture of
victims and to prosecute the perpetrators in accordance with the
provisions of Articles 8(1) and 25 of the American Convention.
It has also failed to ensure fulfillment of its obligations in
accordance with the provisions of Article 1(1) of the above-mentioned
The failure to conduct an impartial investigation of the complaint
related to torture and the complete impunity of the perpetrators thus far
constitute, in addition, a violation of Articles 6 and 8 of the
Inter-American Convention to Prevent and Punish Torture.
ACTIONS TAKEN AFTER REPORT N° 79/00
On October 4, 2000 The Inter-American Commission approved Report N°
79/00 on this case, pursuant to Article 50 of the American Convention, and
forwarded it to the Mexican State on October 16, 2000 with the pertinent
The State requested an extension to submit information on the
measures of compliance with the recommendations, which was granted by the
IACHR until January 18, 2001.
On that date, the State submitted a letter to the Commission, which
expresses the following:
Government of Mexico informs that it has decided to abide by the
recommendations in Report [79/00].
Accordingly, and pursuant to Recommendation 1, the competent
authorities shall reopen preliminary investigation A.5.F.T.A./03/94/E.
this has concluded, the Government of Mexico shall proceed to take
measures pursuant to Recommendations 2 and 3, which are directly linked
with the exhaustion of the respective criminal proceedings.
the above into account, the Government of Mexico requests that the
Commission establish a reasonable time period for the appropriate
processing of the investigation.
To that end, the Government shall report periodically to the IACHR
on the advances in the case.
the Government considers it important that the victims cooperate fully, in
order to facilitate the tasks of investigating and prosecuting which the
competent authorities must carry out.
The State has requested the extension in a way that links
compliance with Report N°
79/00 to the reopening of Preliminary Investigation A.5.F.T.A./03/94/E.
The Commission notes that such investigation was initiated by the
Office of the Military Prosecutor in Mexico, after the Office of the
Public Prosecutor declined its competence to investigate the facts, and
which was later closed by said military organ.
this regard, the IACHR must reiterate what is stated in this report when
analyzing the violations of the right to effective judicial protection and
the obligation to investigate allegations of torture, especially in
paragraphs 82 and 88 supra.
In Report 79/00 the IACHR issues two recommendations to the Mexican
first one pertains to the “complete, impartial, and effective
investigation, within the regular criminal courts in Mexico”
(emphasis added) to determine responsibility for the violations
established in this case, and the second one deals with reparations for
In view of the considerations set forth in this report, the IACHR
finds that reopening the military investigation into these facts in no way
can constitute compliance with the recommendations but rather that it is
contrary to the objectives of justice and reparations for the violations.
During its 110°
sessions, the Inter-American Commission decided that it would not be
possible to grant the extension and, accordingly, it approved the instant
report pursuant to Article 51 of the American Convention.
In this report, the Inter-American Commission has assessed all the
information available in the case file based on the human rights
provisions of the inter-American system and other applicable instruments,
case-law, and legal doctrine, in order to make a decision on the merits of
The IACHR therefore ratifies its conclusions in that the Mexican
State violated the following rights of Delia Pérez de González and her
daughters Ana, Beatriz, and Celia González Pérez, which are enshrined in
the American Convention: the right to personal liberty (Article 7); the
right to humane treatment and to privacy (Articles 5 and 11); the right to
a fair trial and to judicial protection (Articles 8 and 25); and, in the
case of Celia González Pérez, the rights of the child (Article 19); all
in keeping with the general obligation set forth in Article 1(1) of that
international instrument to respect and guarantee rights.
The Inter-American Commission also establishes that the Mexican
State is responsible for violation of Article 8 of the Inter-American
Convention to Prevent and Punish Torture.
The four victims in this case are members of the Tzeltal community
When addressing the general situation of human rights in that
country, the IACHR reminded the Mexican State of its obligation to respect
indigenous cultures and it specifically alluded to the impact suffered by
those communities in the state of Chiapas.
In the instant case, the Inter-American Commission highlights that the
pain and humiliation suffered by the women was aggravated by their
condition of members of an indigenous group.
First of all, because of their lack of knowledge of the language of
their aggressors and of the other authorities; and also because they were
repudiated by their own community as a consequence of the violations
Based on the conclusions of fact and of law set forth in this
INTER-AMERICAN COMMISSION RECOMMENDS THAT
Conduct a complete, impartial, and effective investigation, within
the regular criminal courts in Mexico, to determine the responsibility of
all persons who violated the human rights of Ana, Beatriz, and Celia González
Pérez, and Delia Pérez de González;
Adequately compensate Ana, Beatriz, and Celia González Pérez and
Delia Pérez de González for the human rights violations established in
On March 19, 2001, the Commission forwarded Report Nº 32/01--the
text of which is in the preceding paragraphs--to the Mexican State and to
the petitioners, pursuant to Article 51(2) of the American Convention; and
it established a period of fifteen days to supply information on
compliance with the above recommendations.
On April 3 2001 the Mexican State sent a letter in which it
reiterated its "commitment to carry out the actions necessary to
solve the case with fairness for the victims and expressed that it would
"keep the Commission informed of the advances in the investigation of
On April 4, 2001 the State sent to the IACHR document 001739 issued
on March 30, 2001 by the Human Rights Unit of the Office of the Public
Prosecutor of the Republic, which includes an analysis of Mexican law, and
the first place, the investigation shall be carried out by Military
Justice, which is competent in this case, and which is the institution
that may guarantee an adequate and serious investigation; in second place,
the reparation of the damage will result form a process to determine
responsibility of the persons involved, in which case the Mexican
government may cover such reparation.
The letters presented to the Inter-American Commission by the
Mexican State have no information pertaining to any initiative or measure
to comply with the recommendations of Report 32/01, as it should in the
current stage of the proceedings.
Accordingly, the IACHR shall not make any considerations additional
to those set forth in the preceding paragraphs of this report.
Accordingly, and pursuant to Articles 51(3) of the American
Convention and 48 of the Commission’s Regulations, the Commission
decides: to reiterate the conclusions and recommendations contained in
Chapter VI supra; to publish
this report; and to include it in the Commission’s Annual Report to the
General Assembly of the OAS. Pursuant to the provisions contained in the
instruments governing its mandate, the IACHR will continue to evaluate the
measures taken by the Mexican State with respect to those recommendations,
until the State has fully complied with them.
Done and signed in Santiago, Chile by the Inter-American Commission on Human Rights on April 4, 2001. (Signed) Claudio Grossman, Chairman; Juan E. Méndez, First Vice-Chairman; Marta Altolaguirre, Second Vice-Chair; Hélio Bicudo, Robert Goldman, Peter Laurie and Julio Prado Vallejo, Commissioners.
Inter-American Court, Villágran Morales case cited above, paras.
Mexico deposited the instrument of ratification for the Convention on
the Rights of the Child on September 21, 1990.
Nations, Concluding observations of the Committee on the Rights of
the Child: Mexico. CRC/C/15/Add.
13, February 7, 1994, para. 17. The
Committee also recommended to the authorities that that State allocate
resources to children, " particularly children living and/or
working in the streets, children belonging to minority groups or
indigenous communities and other vulnerable children." (para. 16)
Correspondence from the petitioners of May 27, 1999, page 4.
The case was also documented by Amnesty International in a report on
Mexico entitled "Three Tzeltal sisters raped by Mexican soldiers
in Chiapas." This
report states that "the soldiers reportedly hit the women with
their weapons and kicked them to extract information…they were then
reportedly raped by about 10 soldiers before being released free of
charge on that same day." Amnesty
International, Overcoming Fear: Human rights violations against
women in Mexico, AMR 41/009/1996 of March 3, 1996.
Correspondence from the petitioners of May 27, 1999, page 8.
from the petitioners of January 16, 1996.
In that correspondence, they state:
General Mario Guillermo Fromow, responsible for criminal proceedings
in the military court, stated, in correspondence addressed to Ms.
Mercedes Barquet of the College of Mexico A.C. on August 1, 1994, in
providing her with information on this case, that the victims have
been summoned, through the civil authorities, to appear before the
military authorities. In
that correspondence, he demonstrates a complete lack of familiarity
with the case, confusing the names of the victims with other names
that are completely different. Surprisingly,
he alleges that no complaint whatsoever had been filed but goes on to
state: "the Preliminary Investigation conducted into the events
that were publicized contained no report of the events, and they have
not been proven. Therefore,
to date, the criminal acts have not been proven, let alone the
possible responsibility of any member of the military." (sic)
pages 10 and 11.
that regard, the petitioners state:
is inconceivable that these women, who had endured torture at the
hands of the members of that institution, could feel comfortable
providing a statement (for the third time) to that entity.
The petitioners had, on several occasions, informed the
government attorney's office for civil affairs of the fear and trauma
of the victims, which made it difficult for them to appear in a civil
court, since this would have required them to pass through the
military checkpoint. Consequently,
it was impossible for them to appear before the military authorities.
should be noted that, due to the nature of the case, it was logical
that the victims would be terrified to appear before a military
the entities involved, in this case the Army, would be the ones
responsible for conducting the investigation.
victims, who had already provided a statement to the appropriate
court, had no obligation to subject themselves once more to the
psychological torture that another round of questioning and
gynecological examination would entail, particularly before the entity
representing the persons responsible for the torture, illegal
detention, and rape of the victims.
foregoing implies a violation and form of aggression that is the same
or worse than that experienced on June 4, 1994.
For this reason, the recommendation of military that the
investigation be reopened cannot be considered valid, since this would
mean ignoring the investigation already conducted by the Federal
Public Prosecutor's Office. This is all the more true since they have already obtained
the testimony of their own soldiers who "interrogated" the
victims and they admitted that they were at the location and had the
opportunity to commit the acts of aggression.
The only thing that they do not admit to in their testimony is
raping them. However,
they admitted that they detained and interrogated them, among other
contradictory statements suggest that the deponents are telling the
truth and the soldiers are lying.
However, all this information was ignored and none of them was
from the petitioners dated May 27, 1999, pages 5 and 6.
State further questions the delay on the part of the petitioners to
submit information to the IACHR on the case, and states that: "in
this regard, a delay of this magnitude cannot be justifiable under any
circumstances, particularly with respect to the events that allegedly
from the State of July 14, 1999, page 1, adds that "even the CNDH
… closed the file precisely because of the inactivity and lack of
cooperation of the plaintiffs, "but that despite this "they
reiterated the willingness to continue with the investigation if the
petitioners were willing to cooperate with the authorities."
In this regard, the State adds:
July 2, 1994, the Department of National Defense issued a public
statement, by means of press release Nº 38, that the investigation
conducted into the alleged rape of three indigenous Tzeltal women by
military officers had proven this charge to be completely false and
that there was no breach of military discipline, based on Preliminary
from the Mexican State of October 24, 1996, page 2.
Court, Velásquez Rodríguez Case, Preliminary Exceptions, Judgment of
June 26, 1987, para. 91.
The Beijing Platform establishes several strategic objectives and
actions for ensuring equality and combating discrimination in the area
of women's rights, one of which is particularly relevant in this case:
national laws, including customary laws and legal practices in the
areas of family, civil, penal, labour and commercial law in order to
ensure the implementation of the principles and procedures of all
relevant international human rights instruments by means of national
legislation, revoke any remaining laws that discriminate on the basis
of sex and remove gender bias in the administration of justice;
Nations, Fourth World Conference on Women, Beijing Declaration and
Platform for Action, para. 232(d).
European Court, Aydin v. Turkey, cited above, para. 107.
United Nations, E/CN.4/2000/L.54 cited above, Principle Nº 2.
United Nations, E/CN.4/Sub.2/1998/Add.1.
The United Nations Commission on Human Rights recommended in
Resolution 1989/32 that member States be mindful of the principles
listed in that document.
Nations, Question of the human rights of all persons subjected to
any form of detention or prison and, in particular, torture and other
cruel, inhuman, or degrading treatment or punishment.
Report of Special Rapporteur Nigel Rodley, submitted pursuant
to Resolution 1997/38 of the Commission on Human Rights,
E/CN.4/1998/38/Add.2, January 14, 1998, para. 86.
Idem, para. 88(j).
IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580, Manuel
Stalin Bolaños Quiñonez), Ecuador, para. 48.
The unsuitability of military courts to investigate, prosecute, and
impose sanctions in cases of human rights violations has been the
subject of rulings of the Inter-American Commission:
military penal system of justice has several unique characteristics
that bar access to effective and impartial judicial remedy within this
military courts cannot even be considered a true judicial system.
Military justice is not part of the Colombian Judiciary.
This court is run by the public security forces and, for that
reason, is included in the Executive.
Career judges of the judicial system do not hand down rulings
and the Office of the Attorney General does not play a prosecutorial
role in the military system of justice.
Third Report on the Situation of Human Rights in Colombia (1999),
pages 175-186. In that
regard, the Constitutional Court of Colombia has indicated:
an offense is to fall under military criminal jurisdiction, there must
be a clear link, from the outset, between the offense and the military
service activities. In
other words, the punishable act must represent an abuse of power that
occurred within the scope of an activity directly linked to that
person's functions within the Armed Forces.
The link between the criminal act and the activity related to
military service is broken when the offense is extremely serious, such
as offenses against humanity. In
such cases, the case must be transferred to the civil courts.
Court of Colombia, Decision C-358, August 5, 1997.
Inter-American Court, Case of Durand and Ugarte, Ruling of August 16,
2000, para. 117. The case
pertained to the forced disappearance of two persons accused of
terrorism in Peru, which occurred in the context of the recapture of
"El Frontón" penitentiary by the military forces of
that country in June 1986. In
its ruling, the Inter-American Court stated that the military officers
"used excessive force that went well beyond the limits of their
functions, resulting in the deaths of a large number of inmates,"
and that, as a result, "the acts that led to this denouement
cannot be considered military offenses, but rather common offenses.
Therefore, the investigation into these acts and the
sanctioning thereof must take place in the regular courts, whether or
not the alleged perpetrators were military officers (para. 118).
In that regard, see the Inter-American Court, Case of Cantoral
Benavides mentioned above, paras. 95-103.
Inter-American Court, Loayza Tamayo Case, Judgment of November 27,
1998, para. 169.
Court, Paniagua Morales et al.,
Judgment of March 8, 1998, para. 173.
Inter-American Court, Velásquez Rodríguez Case, Judgment of July 29,
1988, para. 166.
Idem, paras. 174 and 176.
United Nations, Expert on the question of the impunity of persons who
violate civil and political rights, as defined by the United Nations,
Amnesty International has also referred to the scope of
investigations into human rights violations, stating that "the
impunity of the act…can occur when the authorities fail to
investigate human rights violations, or
even when they conduct an investigation, but fail to do so in a prompt
and diligent manner and in accordance with international standards in
this area" (emphasis
Amnesty International. Amicus curiae legal brief submitted to the
Inter-American Court of Human Rights in the case of Consuelo Benavides
Cevallos-Ecuador, December 18, 1997, para. 68 page 23.
IACHR, Report on Mexico cited above, para. 688,
Idem, paras. 717,
719, 725, 726, 727, 746, and 754.
deposited the instrument of ratification of the American Convention to
Prevent and Punish the Crime of Torture on June 22, 1987.
See footnote 3 supra, pára.
Recommendations 1 and 2 of Report 79/00 are identical to those
contained in paragraph 95 of the instant report.
In its report on Mexico, the IACHR stated:
is the obligation of the State of Mexico, based on its constitutional
principles and on internationally recognized principles, to respect
indigenous cultures and their organizations and to ensure their
maximum development in accordance with their traditions, interests,
and priorities. The Commission considers that the State should conduct
a study of the observance of the human rights of indigenous peoples
and their organizations, having regard to the fact that article 4 of
the Mexican Constitution recognizes that "Mexico is a
multi-cultural country whose foundations are its indigenous
peoples" and that Mexico has also ratified ILO Convention 169, on
indigenous and tribal peoples.
IACHR, Report on the situation of human rights in Mexico supra, pára. 577. See, in the same report, paragraphs 540 to 564.