ESTELA ACOSTA HERNÁNDEZ ET AL .
IN THE REFORMA DISTRICT OF GUADALAJARA)
On October 10, 1997, the Inter-American Commission on Human
Rights (hereinafter “the IACHR” or “the Commission”) received a
petition lodged by the Asociación Jalisciense de Derechos Humanos
(“AJDH”) and the Mexican Commission for the Defense and Promotion of
Human Rights (hereinafter, jointly, the “petitioners”) against the
United Mexican States (the “State” or the “Mexican State”).
The complaint alleges that the State is responsible for the April
22, 1992 explosions in the Reforma District of the city of Guadalajara,
state of Jalisco, and is therefore also responsible for the deaths of
María Estela Acosta Hernández and at least 223 other people, numerous
injuries and material damages. The
petitioners blame the State for the negligence of employees of the
State-owned Petróleos Mexicanos (PEMEX), whom they accuse of
having caused a leak of 1.2 liters of hydrocarbons into the sewer lines
of Guadalajara’s Reforma District.
It was that leak that purportedly set off the explosions.
They further contend that the State is responsible for the
subsequent failure to investigate the facts, for allowing the guilty to
go unpunished, and for acts of repression and harassment targeted
against those seeking justice for the explosions.
The petitioners assert that the facts reported in their complaint
are violations of the following rights protected under the American
Convention on Human Rights (hereinafter the “American Convention” or
the “Convention”): right to life (Article 4), right to humane
treatment (Article 5), right to personal liberty (Article 7), right to a
fair trial (Article 8), right to privacy (Article 11), right to freedom
of expression (Article 13), right of assembly (Article 15), right of
association (Article 16), right of property (Article 21), freedom of
movement (Article 22), the right to equal protection (Article 24), and
the right to judicial protection (Article 25).
The State, for its part, argues that the petition was filed after
the time period had expired, since the final judgment was handed down by
the Mexican courts on January 28, 1994, and that, moreover, the remedies
available under domestic law were not exhausted.
The State further contends that the facts do not tend to
establish human rights violations attributable to it and therefore asks
that the petition be declared inadmissible.
3. In this report
the Commission analyzes the available information in light of the
provisions of the American Convention and concludes that the petition
was lodged after the six-month time period provided for in Article
46(1)(b). It therefore
decides that the petition is inadmissible under Article 47(a) of the
American Convention; transmits the report to the parties; publishes the
report, and orders its publication in the Commission’s Annual Report.
PROCESSING BEFORE THE COMMISSION
4. During its in
loco visit to Mexico in July 1996, the IACHR received information of
a general nature from the AJDH concerning the facts under study.
After asking the State to provide information, the Inter-American
Commission filed the case.
The new petition, which the AJDH and the CMDPDH lodged on October
10, 1997, was registered as number 11.823.
On November 17 of that year, the Inter-American Commission
requested information from the State concerning the facts alleged by the
petitioners. On October 24,
1997, the petitioners submitted more documents, which were added to the
file on the petition. The
State’s response was submitted on February 13, 1998 and the pertinent
parts of it were forwarded to the petitioners on February 26 of that
The petitioners’ observations were sent to the IACHR on March
25, 1998 and forwarded to the State on April 29, 1998.
On April 30, 1998, the petitioners presented documents to
accompany their observations, which were added to the file on the
petition. At the State’s
request, the Commission granted it an extension, whereupon its
observations were filed on July 6, 1998.
7. On September
14, 1998, the Inter-American Commission forwarded to the State the
pertinent parts of the petitioners’ August 17, 1998 observations.
On October 20, 1998, Lic. Guadalupe Morfin Otero, President of
the Jalisco State Human Rights Commission, sent the IACHR more
information in connection with petition 11.823, which was added to the
On October 14, 1998, the Mexican State sent its observations, the
pertinent parts of which were forwarded to the petitioners on October 26
of that year. On April 14,
1999, the petitioners asked the Commission to “mediate” with a view
to reaching a settlement of the matter.
On June 11, 1999, the Jalisco State Human Rights Commission filed
a series of documents having to do with the explosions in the Reforma
District of Guadalajara. Those
documents were added to the file.
THE PARTIES’ POSITIONS ON ADMISSIBILITY
In the communication that started the proceedings on this matter,
the petitioners describe the events that occurred after 10:00 p.m. on
the night of April 22, 1992, as “the worst tragedy in Guadalajara’s
history.” That day, the Colector Intermedio Oriente (part of
the city’s underground sewer system) blew up, causing damage to 12.5
kilometer of densely populated streets and avenues in the Reforma
District of the city. The
petitioners submitted five lists of victims:
one list naming 224 fatalities, based on official figures;
another list of 15 persons reported missing; another list naming 12
surviving victims; a fourth list of 30 affected persons and sympathizers
from the “Movimiento Civil de Damnificados 22 de abril A.C.,”
and a fifth list of names of nongovernmental organizations alleged to
have been the target of reprisals because they had claimed their rights.
The petitioners attribute “direct administrative, criminal,
civil and ecological responsibility” to the Jalisco Government
authorities because they failed to evacuate the civilian population from
Guadalajara’s Reforma District in the days and hours prior to the
explosions. The petitioners
believe that the authorities were fully aware of the “risks and
foreseeable eventualities” that could result from the hydrocarbons
leaking from the sewers. They
allege that the Federal Government is responsible by omission because it
failed to enforce the administrative standards and procedures of the
“General Law on Ecological Balance and Environmental Protection.” The petitioners also contend that the Mexican State is
responsible for the fact that justice has been denied, as the State
“refused to undertake its legal, administrative and humanitarian
obligations vis-à-vis the victims and the survivors, which is to
provide the victims and their families–without preferences or
exclusions of any kind-sufficient aid, restitution, compensation, and
access to the courts.”
The petitioners are invoking the provisions of the American
Convention and other international instruments that protect the right to
life, the right to humane treatment, the right to personal liberty,
judicial guarantees, the right to privacy, the right to freedom of
expression, the right of assembly, freedom of association, the right of
property, freedom of movement, the right to equal protection and the
right to judicial protection. The
Commission observes, however, that no specific allegations were made
concerning the purported violation of most of these provisions. They state, inter alia,
that “the dead and missing Jaliscans numbered in the thousands,
not the hundreds” and that “since April 22, 1992, we Jaliscans are
not the same: we have lost our sense of tranquility, unity, coexistence,
heritage and the peaceful and hospitable nature that was the
Jaliscans’ distinctive feature among the Mexican people”
(right to humane treatment). They
allege that “the right most violated in this case has been the right
to judicial guarantees,” for the following reasons:
victims we have named in this brief have been denied a fair, impartial
and rapid recourse that would enable them to protect themselves against
the violations and unlawful actions that the Mexican government has used
to evade its responsibilities vis-à-vis the population of the Reform
district of Guadalajara. Therefore,
this IACHR will have to establish the means that international human
rights law grants to all persons and groups.
We have doubts about the impartiality and independence of the
Mexican federal courts that heard the case, reason enough to lodge this
As for the requirement under Article 46(1) of the American
Convention, the petitioners initially argued that “both the
jurisdictional and non-jurisdictional remedies” had been “basically
exhausted” in Mexico; at the same time, they also argued that there
had been an unwarranted delay in rendering a judgment on the remedies.
After the State’s answer, the petitioners wrote the
is true that with dismissal of Case 70/92 by the aforementioned Third
Circuit Federal Court, the 9 PEMEX officials summoned to stand trial
were cleared of all charges. They
were ordered released, as were the lesser functionaries of SIAPA and
Guadalajara City Hall (21 months’ preventive detention pending trial).
However, when the only trial instituted thus far was dismissed,
justice was denied. The
merits of the case have never been decided.
When the Federal Prosecutor (hereinafter the MPF) decided not to
bring charges, the defendants were able to walk away; not so the
thousands of victims, plaintiffs, and the city of Guadalajara, who were
denied their right to swift and expeditious justice. 
The petitioners pursued and elaborated upon this line of argument
in their submissions concerning the applicability of the exceptions to
the rule requiring exhaustion of domestic remedies:
does one appeal or file for amparo
relief against a court ruling dismissing a case and ordering the
immediate release of the accused when one cannot see the text of the
ruling or its reasoning? How does one challenge decisions of the MPF or
the PGR [Office of the Attorney General of the Republic] that were
regarded at the time as unassailable?
And how does one defend oneself against a judge and a “public
solicitor” who behaved like a Government attorney and cleared the
accused of all charges, never giving the aggrieved parties any
forewarning so that they might be ready to use what resources they had,
and without ever telling them how much time they had to do so?
What could the NGOs do for the victims when they did not have
standing to act as a party in a legal proceeding whose purpose and
outcome were of concern to them but to which they were denied access?
The petitioners also maintain that because of the authorities’
negligence and cover-up, not all the crimes alleged to have been
committed were investigated and that there is no way of knowing how many
victims the catastrophe claimed. They
also point out that case 70/92 was flawed from the outset, and that when
assessing the conclusions of the Federal Prosecutor and ordering the
case closed, the judge acted unlawfully.
They analyze in detail the conduct of all the federal and state
prosecutors who acted in the proceedings, and that of the public
officials from various levels, including the Presidents of the Republic
and Governors of Jalisco who served in office between the time the
events occurred and 1998.
They ask the Commission to reject the arguments alleging that the
petition is time-barred, to declare it admissible, and to find that the
Mexican State bears international responsibility for the events of April
The State’s first response to the petition under consideration
begins with a request that the petition be declared inadmissible on the
grounds that it is time-barred. The
State argues that:
Sixth District Criminal Judge of the State of Jalisco dismissed criminal
case 70/92 on January 28, 1994, ordering defendants Juan Antonio Delgado
Escareño, José Adán Ávalos Solórzano, Ángel Bravo Rivadeneyra and
Roberto Arrieta Maldonado-Petróleos Mexicanos employees-released; in
other words, the petitioners lodged this complaint 45 months after
learning of the final judgment in which the charges against the
defendants were dropped. Under
the American Convention on Human Rights, complaints must be lodged
within no more than six months from the date of the final judgment
rendered. It is important
to note that from the information supplied by the petitioners, it is
clear that this court ruling was not appealed, which meant that it
In conclusion, the Government of Mexico considers that the main
legal issue in the petitioners’ brief are any omissions and negligent
conduct, provable in a court of law, that Petróleos Mexicanos may have
been guilty of in order for the tragedy of April 22, 1992 to occur; as
they were not proven in court, the presiding judge in the case ordered
the case dismissed and the suspects released. The petitioners tacitly accepted the court’s decision;
although third parties in the action, they did not ask the Public
Prosecutor’s Office to challenge the court decision at the prescribed
time and in the prescribed manner.
The State contends, moreover, that “there are domestic remedies
in the Mexican legal system that the petitioners did not exhaust at the
appropriate time if they wanted PEMEX to be found criminally at fault
for the events that occurred on April 22, 1992.”
The State goes on to say that in late 1996, the National Human
Rights Commission declared that Recommendation 57/94, which concerned
this matter, had been fulfilled; the petitioners’ complaint regarding
the conduct of the CNDH officials was filed 10 months after its
declaration certifying compliance.
The foregoing notwithstanding, the State addresses a series of
issues in its response, presented as “preliminary information.” It describes PEMEX’ legal nature and the body of laws that
apply to the petroleum industry. It
also makes a number of “clarifications concerning statements made in
the complaint regarding Petróleos Mexicanos.”
The State asserts the following:
opinions submitted by the experts offered by the defendants’ defense
team concluded that the cathodic protection system in the
Salamanca-Guadalajara polyduct system (where the Nova gasoline leak
occurred on April 22, 1992), was functioning normally up to the time the
(drainage) sewers exploded. They
also showed that the leak that occurred in that polyduct system was
subsequent to the closing, and subsequent to the explosions.
This was borne out by the results obtained on the water samples
taken in the sewers prior to 2:00 p.m. on the date in question.
presiding judge in criminal case 70/92 declared the examining phase
closed on November 3, 1993; he asked the Federal Prosecutor’s Office
to present its conclusions, which it did on January 5, 1994.
But the findings were not indictments; in other words, the
evidence compiled during the proceedings disproved the elements that, at
the time the facts were brought to the authorities’ attention and the
suspects arrested, appeared to be the aforementioned crimes.
On January 27, 1994, the Attorney General of the Republic
confirmed that the findings that not all the elements essential for a
given conduct to constitute a crime were present.
a consequence, the judge presiding over the criminal case ordered the
case dismissed on January 28, 1994.
There was no longer a criminal case since the elements essential
to find the accused criminally liable were not present.
Petróleos Mexicanos was not found to be at fault in the events of April
22, 1992; the PEMEX employees, who had been mistakenly charged with
allegedly criminal acts, were released when the criminal case was
dismissed. This decision
became final, with all its legal effects.
According to the State, there were some 21,750 businesses in
metropolitan Guadalajara, engaged in activity that “increased the flow
of waste into the sewers.” Compounding
the problem was the presence of some 900,000 vehicles in the city at
that time. It alleges that “the storage and distribution facilities of
Petróleos Mexicanos cannot be blamed for all the hydrocarbons leaking
into the sewer water and contaminating it.”
The State also points out that PEMEX’ attitude was one of
“cooperation with the affected community,” as it made contributions
to the fund set up for damage repair and compensation.
The State adds that “PEMEX made these gestures of solidarity
with those affected in good faith, as it was under no legal obligation
to do so.”
In that same communication, the State lists the civil actions
currently under way against PEMEX.
It also summarizes how the National Human Rights Commission
responded to a complaint filed by the AJDH, having to do with abuses
that a group of demonstrators from the “Movimiento Civil de
Damnificados 22 de abril” allegedly suffered on June 1, 1992.
The Commission’s response to this incident resulted in
Recommendation Nº 57/94, which recommended to the Governor of Jalisco
that all necessary measures be
taken to ascertain the facts and identify those responsible and bring
them to justice. The
suspects are all from the Jalisco Public Security Bureau.
Finally, the State contends that the petition lodged with the
IACHR is intended “to show that the public servants affiliated with
that para-State agency were directly responsible for the tragedy that
occurred on April 22, 1992.” The
dismissal of criminal case 70/92 disproves that position, as well as the
underlying motive of the petition.
The Commission’s competence ratione
materiae, ratione personae and ratione
Under Article 44 of the American Convention, the petitioners are
authorized to lodge petitioners with the IACHR. The petition names as
alleged victims persons whose rights under the American Convention
Mexico pledged to respect and to guarantee.
The facts alleged in the petition would have occurred at a time
when the obligation to respect and ensure the rights established in the
American Convention was already binding upon Mexico.
The Commission is, therefore, competent ratione
personae to examine the present petition.
The IACHR is competent ratione
loci to take up the petition inasmuch as it alleges violations of
rights protected under the American Convention, purported to have
occurred within Mexican territory, which is a State party to the
The Commission is also competent ratione
temporis inasmuch as the obligation to respect the rights protected
by the American Convention and to ensure their free and full exercise to
all persons subject to its jurisdiction was already binding upon the
State on the date the events claimed in the petition allegedly occurred.
Finally, the Commission is competent
ratione materiae because the petition alleges violations of human
rights protected by the American Convention.
In the matter before the Commission for consideration, one of the
disputed points concerns fulfillment of the admissibility requirements
provided for in Article 46(1)(a) and (b) of the American Convention.
The State further contends that the facts do not tend to
establish violations of Convention-protected rights.
Exhaustion of domestic remedies
The Inter-American Court of Human Rights has held that “the
rule of prior exhaustion of domestic remedies allows the State to
resolve the problem under its internal law before being confronted with
an international proceeding. This is particularly true in the
international jurisdiction of human rights..”.
Such remedies must be adequate, i.e., “adequate domestic
remedies are those which are suitable to address an infringement of a
legal right.” 
The IACHR must begin by determining what the adequate domestic
remedy was in Mexico to remedy this matter.
The explosions that occurred in Guadalajara’s Reforma District
on April 22, 1992, raised a very complex question, impacting many of
that city’s residents. The
petitioners attribute responsibility to the Mexican State in those
events, owing to the negligence of its authorities, particularly the
officials and employees of the State-owned PEMEX who were responsible
for managing the hydrocarbons.
According to information in the case file the Office of the
Attorney General decided to exercise federal authority and launched an
investigation that served as the basis of criminal case 70/92.
The purpose of this proceeding was to determine whether the PEMEX
employees and executives named as defendants in the preliminary phase
were at fault. The facts
were investigated. Both the
State and the petitioners concur that civil lawsuits and other
proceedings associated with the April 22, 1992 events in Guadalajara
were also instituted at the same time.
As previously observed, the petitioners originally maintained
that the domestic remedies had “basically been exhausted” and that
they turned to the inter-American system because there were no other
avenues to exhaust in Mexico. When
the State responded by alleging that the petition was filed after the
allowed time period, the petitioners elaborated upon their arguments and
alleged that the exceptions provided for in Article 46(2) of the
American Convention were applicable.
They further asserted that they were not allowed to see the case
file because they were acting as a civil society organization and not as
the victims’ legal representatives.
Having been denied access to the case file, they claimed they had
no knowledge of the outcome of the investigation and were thus prevented
from filing a petition of amparo to
challenge the Public Prosecutor’s decision to drop all charges against
those alleged to be responsible for what happened.
The IACHR observes that the petition was lodged on behalf of all
the fatalities, the injured, and the other inhabitants of
Guadalajara’s Reforma District who sustained any other form of damage
or loss as a result of the explosions on April 22, 1992. The petitioners
do not build their arguments around the particular situation of each
individual alleged victim or each of the events taken separately.
Therefore, the adequacy of the remedy to be exhausted has to be
determined on the basis of the facts alleged, taken as a whole, and the
totality of persons that the petitioners claim as victims.
The main issue in this matter, in the judgment of the
Inter-American Commission, concerns the investigation into whether the
PEMEX employees and executives bore direct responsibility for what
happened and whether any other state and federal officials were at fault
subsequent to April 1992. The proceeding instituted by the PGR, which led to criminal
case 70/92, had all the necessary elements of suitability and
effectiveness required under the jurisprudence of the inter-American to
ascertain the facts, identify the responsible parties, punish them and
redress the victims.
The information available to the Inter-American Commission in the
case file reveals that none of the other civil suits, proceedings and
out-of-court measures initiated by private parties or by the petitioners
addressed all of the facts analyzed here.
Therefore, none of them could have resulted in a finding that the
Mexican State was responsible for all the facts that the petitioners
denounced or secure compensation for the victims named on the lists the
petitioners submitted. The
petitioners’ arguments as to the exceptions to the rule requiring
exhaustion of local remedies basically concern the delay and
ineffectiveness of these parallel proceedings.
The Inter-American Commission therefore finds that the exceptions
to the prior exhaustion rule do not apply in this case.
For these reasons, the IACHR concludes that in this matter, the
remedies under domestic law were exhausted on January 28, 1994, with the
ruling of the Sixth Criminal Judge, who dismissed criminal case 70/92.
Time period for lodging a petition
The IACHR has written that the six-month time period provided for
in Article 46(1)(b) of the American Convention “has
a twofold purpose: to ensure legal certainty and to provide the person
concerned with sufficient time to consider his position.”
Because this time period is established by convention, its strict
observance is of unquestioned importance within the individual petitions
system. However, because
the purpose of the American Convention is to protect the fundamental
freedoms of the individual, the jurisprudence of the inter-American
system has allowed certain leeway in regard to procedural time periods,
depending upon the circumstances of a given case and within certain
In the instant case, the six-month time period must be counted
from the date of notification of the judgment that exhausted domestic
remedies; in other words, the date on which the petitioners learned of
it. The judgment was
delivered on January 28, 1994, and the case file reveals that the
petitioners learned of it immediately:
city was shocked when it learned the news; for one year and nine months
it had been awaiting the outcome of the criminal lawsuit that the
President [Carlos Salinas de Gortari] had brought in the Judiciary. (…) Hoping for
more details, a number of
civilian groups–including our NGO-and representatives of a number of
political parties went to the PGR Building in Guadalajara on January 29
Furthermore, on February 7,1994, the petitioners filed a brief
with the National Human Rights Commission in which they complained about
the conduct of the court authorities and the Public Prosecutor’s
Office in the investigation of the explosions.
In that brief, the petitioners express their confidence in the
National Human Rights Commission’s intervention, although they also
noted that “because the matter is so serious, we are already preparing
the brief for the international forums.”
Despite the foregoing, the petition that was the origin of
petition 11.823 was received at the headquarters of the Inter-American
Commission on October 10, 1997, by which time the six-month period,
counted from notification of the final ruling in the domestic courts,
had long since passed. Therefore,
the petition does not satisfy the requirement stipulated in Article
46(1)(b) of the American Convention.
In the present report, the IACHR has established that while the
domestic remedies were exhausted, the petition was lodged after the time
period stipulated in the American Convention for filing.
Once the Inter-American Commission has concluded that the case is
inadmissible because of a failure to comply with one of the requirements
stipulated in the Convention, it need not decide any other facts.
The Commission concludes that the petition is inadmissible under
Article 47(a) of the American Convention.
Based on the foregoing arguments of fact and of law,
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
To declare the present case inadmissible.
To notify the petitioners and the State of this decision.
To publish this decision and include it in the Commission’s
Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American
Commission on Human Rights, in the city of Washington, D.C., the 20th
day of the month of February 2003.
(Signed): Juan E. Méndez, President; Marta Altolaguirre, First
Vice-President; José Zalaquett, Second Vice-President; Robert K.
Goldman, Julio Prado Vallejo, Clare K. Roberts, and Susana Villarán,
from the petitioners dated October 10, 1997, pp. 21 to 23.
As to the right to personal liberty, the petitioners argue
that “since the mass killing, the victims have been left to heal
their wounds, confined to their beds, their wheelchairs, their
hospitals and psychiatric wards, no longer able to amble down the
streets of the physically “rebuilt” Reforma district; right to
privacy: “when that fire and dust exploded through Reforma
district’s homes, churches and schools, smashing windows and
breaking down doors in its path, the private lives of persons,
newlyweds and families were destroyed; we entered another world in
which no premium is attached to people’s privacy”; right to
freedom of expression: “the funeral and protest marches have been
muted because so many have moved away and by the low blows in the
press. If at the outset
we were the victims of the authorities’ negligence and
patrimonialism because we demanded that our pain and our urgent
needs be addressed, now no one seeks us out; our voice has been lost
amid all the silence, indifference and impunity”; right of
assembly: “… before
the disaster struck, neighbors gathered to celebrate birthdays,
graduations, weddings; now, none of that happens, because our
neighbors no longer exist. And as we have no desire to be left alone with our
misfortune, we have moved elsewhere and now live among people with
different ideas and customs and who will never begin to understand
our pain; with every day that passes our lives are shorter and
to private property: “Like an alchemist, [the then Governor of
Jalisco] Cosio and his cronies transformed our tangibles and
intangibles into dust. Private
belongings in homes were looted by the very people sent in the
aftermath of the explosions to protect what remained of our homes,
which the explosions had gutted from foundation to roof.
Who was there to protect us from the plundering of the
crooked police and military?”; right of access to the courts:
“The Fund forced
many victims to sign–several times, just in case-release forms
under which they had to waive any right to file civil suit or a
criminal complaint. The extreme poverty, urgent needs and ignorance in which the
explosion left them were exploited.
Every April 22 in Guadalajara, people gather and shout:
“We want justice!” Young people paint their names on
walls and in vacant places. Justice
had fled the country and is surely in hiding, far out of the Mexican
people’s reach. We
yearn for her and long for the day when she will return and lead
Idem, p. 48.
from the petitioners, March 25, 1998, p. 4.
pp.10 to 19.
from the State, February 13, 1998, pp. 1 and 2.
pp. 6 and 7.
Mexico approved the instrument acceding to the American Convention
on March 2, 1981, and deposited it with the OAS General Secretariat
on March 24, 1981.
Court of Human Rights, Velásquez Rodríguez Case, Judgment of July
29, 1988, Series C Nº 4, par. 61
Case 11.230 - Francisco Martorell, Chile, Annual Report 1996, Report
Nº 11/96, par. 33.
Communication from the petitioners, October 10, 1997, p. 35.
from the petitioners to Lic. Jorge Madrazo Cuéllar, Chairman of the
National Human Rights Commission, February 7, 1994, p. 7.