The Commission and the representatives referred to several contextual facts, particularly, “the abuses committed by military forces based in the state of Guerrero,” some patterns in the use of torture in Mexico, and the impact this has on judicial proceedings, as well as the “use of the military jurisdiction in the investigation and prosecution of human rights violations.”
The State denied any link between this case with the context mentioned and pointed out that the latter is not part of the object of this case. It requested that the Court base its decisions solely on the case file of the criminal proceedings against the alleged victims for the purpose of determining what happened to Messrs. Cabrera and Montiel. It indicated that “any other characterization” of what occurred “is nothing more than an improper attempt to introduce into the litigation issues unrelated to the facts of the case.” Notwithstanding the foregoing, and in the event that the Court should decide to assess the said context, the State presented several arguments to refute what it considers to be unfounded generalizations that would have specific implications for the concrete facts of this case.
This Court has held that in cases involving highly complex facts, in which the existence of patterns or practices of massive, systematic or structural human rights violations are alleged, it is difficult to seek a strict delimitation of the facts. Thus, the case submitted to the Court cannot be examined piecemeal or trying to exclude those contextual elements that could inform the international judge about the historical, material, temporal and spatial circumstances in which the alleged facts took place. Nor is it necessary to specify or categorize each alleged fact, because the dispute submitted can only be settled based on an assessment of all the circumstances described,55 in light of the body of evidence.
Likewise, the Court has considered that, when assessing elements of context, in general terms, it does not seek to rule on overall phenomena related to a case, or to judge the various circumstances included in that context.56 Furthermore, it is not called upon to rule on the different facts alleged by the State and the representatives, or on public policies adopted at different times to counter such aspects outside the events of a certain case. On the contrary, the Court takes these facts into consideration as part of the arguments of the parties in their litigation.
The Court notes that the Commission, both in its report on the merits57 and in its application,58 presented the human rights violations that occurred in this case within a context of alleged abuses by the military forces in Guerrero, patterns related to the use of torture and their impact on judicial proceedings, as well as the use of military courts for the investigation of cases involving human rights violations. Therefore, this context is a subject of the present litigation and relates to the facts alleged. In analyzing the merits of the case and any possible reparations, the Court shall consider the scope of this alleged context and the respective arguments presented by the representatives.
VII
RIGHT TO PERSONAL LIBERTY IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS
General description of the domestic proceedings and jurisdictional levels that assessed the facts
In order to determine whether there was a breach of Article 7,59 in relation to Article 1(1)60of the American Convention, in the following chapters the Court shall set forth in detail the disputes between the parties and the steps taken in the proceedings related to the instant case. However, as a general introduction, the following aspects shall be explained: 1.1) undisputed facts related to the arrest of the alleged victims; 1.2) the criminal judicial proceeding that led to the conviction of the alleged victims; 1.3) the applications for amparo filed by Messrs. Cabrera and Montiel, and 1.4) the actions of the military courts and the National Commission on Human Rights regarding the allegations of possible torture.
Undisputed facts related to the arrest of Messrs. Cabrera and Montiel
On May 2, 1999, Mr. Montiel Flores was outside the home of Mr. Cabrera García, along with the latter and with three other people, as well as his wife and daughter,61 in the community of Pizotla, Municipality of Ajuchitlán del Progreso, in the state of Guerrero. That same day, at around 9:30 am, approximately 40 soldiers of the Mexican Army’s 40th Infantry Battalion entered the community, as part of an anti-drug trafficking operation,62 to confirm information regarding a gang or “gavilla”63 presumably led by Ramiro “N” and Eduardo García Santana.64 In this context, a shot fired from a soldier’s gun hit Mr. Salomé Sánchez, who died instantly.65 Messrs. Cabrera and Montiel hid among bushes and rocks and remained there for several hours. At approximately 4:30 pm that same day they were arrested.66
The soldiers kept Messrs. Cabrera and Montiel detained on the banks of Pizotla River until May 4th.67 That same day, after midday, they transferred Messrs. Cabrera and Montiel by helicopter to the base of the 40th Infantry Batallion, located in the city of Altamirano, state of Guerrero.68
Judicial proceedings that led to the conviction of Messrs. Cabrera and Montiel
As a result of the complaint filed by certain members of the Army against Messrs. Cabrera and Montiel69 for the alleged crimes of carrying weapons intended for the exclusive use of the Army and without a license, and for growing poppies and marijuana, the Public Prosecutor’s Office of the Common Jurisdiction of Arcelia, Guerrero, initiated a criminal investigation.70 On May 4, 1999, said office ordered the legal detention of Messrs. Cabrera and Montiel.71 Because these were federal offenses, the Public Prosecutor’s Office of the Common Jurisdiction of Arcelia, state of Guerrero, referred the inquiry to the Federal Public Prosecutor’s Office of Coyuca de Catalán.72 Due to its lack of jurisdiction, on May 12, 1999 the case was submitted to the First Instance Court of the Criminal Branch of the Mina Judicial District, which notified Messrs. Montiel and Cabrera of the formal order of imprisonment.73 The trial court of Mina declined its jurisdiction and the case was forwarded to the Fifth District Judge of the Twenty-First Circuit in Coyuca de Catalán (hereinafter “the Fifth District Court”).74 On August 28, 2000, this court handed down a conviction against Messrs. Cabrera and Montiel, sentencing them to prison terms of six years eight months and ten years, respectively.75
Mr. Montiel Flores was convicted of the crimes of possession of firearms intended for the exclusive use of the Army, Navy and Air Force, possession of a firearm without a permit and for a crime against health through the cultivation of marijuana.76 Mr. Cabrera García was convicted of the crime of carrying a firearm intended for the exclusive use of the Army, Navy, and Air Force.77 After filing the motions of appeal, on October 26, 2000 the First Single-Magistrate Court of the Twenty-First Circuit (hereinafter “the First Single-Magistrate Court) upheld the convictions of Messrs. Cabrera and Montiel.78 In 2001, they were released and kept under house arrest in order to continue serving the sentence, due to their health condition (infra para. 117).
Applications for amparo filed by Messrs. Cabrera and Montiel against the decision of the First Single-Magistrate Court
On March 9, 2001, the alleged victims filed an application for amparo relief before the Second Collegiate Court of the Twenty-First Circuit (hereinafter “the Second Collegiate Court”), for the purpose of challenging the decision of the First Single-Magistrate Court.79 Among the various arguments included in the petition by the representatives, it was claimed that the appeal judgment did not take into account a medical report that concluded that Messrs. Cabrera and Montiel had been tortured. This medical report was issued by the forensic experts Christian Tramsen and Morris Tidball-Binz, for the Danish section of the organization “Physicians for Human Rights – Denmark.”80
On May 9, 2001, the Second Collegiate Court granted the appeal (amparo), and ordered the First Single-Magistrate Court to issue a new appeal judgment that admitted said expert evidence offered by the legal counsel.81 On July 16, 2001, after assessing said item of evidence, the judicial body upheld the condemnatory judgment of the Fifth District Judge against Messrs. Cabrera and Montiel.82 On October 24, 2001 the legal counsel of Messrs. Montiel and Cabrera filed a new application for direct amparo relief against this judgment.83
On August 14, 2002, the Second Collegiate Court issued its amparo ruling, and denied relief in relation to Mr. Cabrera García.84 With respect to Mr. Montiel Flores, the court turned down the amparo in relation to the alleged irregularities in the conviction for carrying a firearm; therefore, his conviction became final. However, the Collegiate Court determined that “the evidence provided to the competent court is neither effective nor sufficient to prove the essential elements of the crime” of marijuana cultivation and of carrying a firearm without a permit, specifically, a rifle.85
Investigation opened into alleged acts of torture against the presumed victims. Actions of the Military Courts and of the National Human Rights Commission
On August 26, 1999, as part of the criminal proceedings conducted against Messrs. Cabrera and Montiel, their legal counsel asked the Fifth District Judge to order the Public Prosecutor’s Office to investigate the allegations of torture, solitary confinement and unlawful detention to which they were subjected at the Army’s facilities.86 In response to this request, on August 31, 1999, the Fifth District Judge ordered the Public Prosecutor’s Office to investigate the facts denounced.87 On October 1, 1999, the Federal Public Prosecutor’s Office of Coyuca de Catalán, state of Guerrero, opened a Preliminary Inquiry into the complaints made by Messrs. Cabrera and Montiel.88 On November 5, 1999, the Attorney General’s Office of the Republic (hereinafter, the “PGR”) announced that it did not have jurisdiction to investigate the crime of torture and transferred the matter to the Office of the Prosecutor General for Military Justice (hereinafter “PGJM”),89 arguing that those potentially responsible were soldiers on active service.90 On June 13, 2000, the PGJM ordered the inquiry into torture to be closed under “writ of reserve of the file” (administrative suspension), based on the military investigator’s opinion that no evidence had been produced to prove torture.91
Concurrently with the above, on May 14, 1999 Messrs. Cabrera and Montiel filed a complaint in relation to the facts of the instant case before the National Human Rights Commission (hereinafter “CNDH”). On July 14, 2000, the CNDH determined that “military personnel violated the principle of legality and right to liberty of Messrs. Rodolfo Montiel and Teodoro Cabrera García, […] [and given] the continued silence [on the part of the PGJM]”,92 the CNDH presumed that the allegations of torture were true, in keeping with Articles 3893 and 7094 of the CNDH Law.95 Accordingly, it recommended that “the Inspection Unit and Office of the Comptroller General of the Mexican Army and Air Force institute an administrative investigation against the members of the Mexican Army who authorized, supervised, implemented, and executed the operation from May 1 to May 4, 1999.”96 It also recommended that the Attorney General’s Office launch a preliminary investigation into the members of the Mexican Army who authorized, supervised, implemented, and executed the operation. Likewise, it urged the Attorney General of Military Justice to hand down the measures necessary to determine and issue, as soon as possible, the corresponding judgment within the preliminary investigation on the alleged acts of torture.97
In response to the CNDH’s recommendations, the PGJM launched another Preliminary Inquiry on September 29, 2000 to investigate the allegations of torture, prolonged detention and other crimes. On November 3, 2001, the Military Prosecutor decided to refer the inquiry to the PGMJ “proposing that no criminal action be brought and that the inquiry be definitively closed, with the exceptions that the law provides,” on the grounds that the investigation did not find that acts of torture were committed against Mr. Cabrera and Mr. Montiel.98
