The representatives argued “that the right to personal security, which is closely related to personal liberty, has a specific content” inasmuch as it “creates a favorable and adequate environment for the peaceful coexistence of people.” According to the representatives, “[w]hile subsections 2 to 7 of the aforementioned Article 7 constitu[te] specific guarantees that establish guidelines regarding how an individual may be validly deprived of liberty, the right to security protec[ts] the conditions under which physical liberty is ensured, or is free of threats.” In this respect, the representatives stated that “the role played by the Army in public security tasks […] fostered an environment contrary to an effective protection of human rights.” The representatives therefore argued that “the manner in which the Mexican Army operated in Guerrero at the time of the events of this case, implied a State action or policy that created a risk to the physical liberty [of the alleged] victims, […] infringing both Articles 1(1) and 7(1) of the American Convention.”
The Commission and the State did not submit arguments regarding the violation of the right to personal security. Nevertheless, the State argued that the armed forces’ participation in the comprehensive security strategy is supported by the Mexican legal framework, which has determined that “this participation is subsidiary, temporary and only upon request of the civil authorities,” so as to “prevent, discourage, investigate, and prosecute high-impact crimes such as drug trafficking, organized crime and the use of heavy firearms.”
The Court recalls that, with regard to Article 7 of the American Convention, it has reiterated that it contains two types of well-differentiated provisions, one general and one specific. The general provision is contained in the first subparagraph: “[e]very person has the right to personal liberty and security.” Meanwhile, the specific provision consists of a number of guarantees that protect the right not to be deprived of liberty unlawfully (Art. 7(2)) or in an arbitrary manner (Art. 7(3)), to be informed of the reasons for the detention and the charges brought against him (Art. 7(4)), to judicial control of the deprivation of liberty (Art. 7(5)), and to contest the lawfulness of the arrest (Art. 7(6)).99 Any violation of subparagraphs 2 to 7 of Article 7 of the Convention necessarily entails the violation of Article 7(1) thereof.100
Furthermore, the Court has held that security should also be understood as protection against all unlawful or arbitrary interference with physical liberty.101 Likewise, the protection of liberty safeguards both an individual’s physical liberty and his or her personal safety, in a context in which the lack of guarantees may undermine the rule of law and deprive detainees of the basic forms of legal protection.102 For its part, the European Court of Human Rights has declared that the right to personal security implies protection of physical liberty.103 In turn, the United Nations Human Rights Committee has pointed out that the right to security cannot be construed in a restrictive way, which implies that the State cannot ignore threats to the life of persons who are arrested or otherwise detained.104
The facts of this case occurred in a context of a heavy military presence in the state of Guerrero in the 1990s,105 as an official response to drug trafficking and to emerging armed groups such as the “Ejército Zapatista de Liberación Nacional” (Zapatista National Liberation Army) (EZLN) and the “Ejército Popular Revolucionario” (Popular Revolutionary Army) (EPR).106 This response involved the deployment of armed forces in the states where these groups operated and where drug trafficking activities took place.107 Consequently, and taking into account some of the disputes between the parties (infra paras. 90 to 92), the Court deems it relevant to explain the scope of some of the treaty obligations under such circumstances.
In the abovementioned context, during that decade, the Armed Forces took on public security roles and tasks in some states, including Guerrero, patrolling highways and roads, setting up roadblocks, occupying towns, arresting and interrogating people and searching homes in search of uniforms, weapons and documents.108 Guerrero is “one [of] the few [states] with two military zones out of 41 in total" and also includes a military region, "IX, out of XII regions; the budget for this region had a percentage increase of 50.14 per cent from 2000 to 2009, an increase greater than that for all the other regions except for region I.”109
In this specific case, the Court notes that in the military operation carried out in the community of Pizotla on May 2, 1999, prior to the arrest of Mr. Cabrera and Mr. Montiel, the military group involved was made up of 43 soldiers.110 In this regard, the CNDH verified that the military unit went to this location to confirm information regarding a gang ("gavilla") (supra para. 67). The CNDH considered it proven that “the town […] was besieged,” “was under surveillance,” and that “military personnel […] fired their weapons, terrorizing the civilian population of the community of Pizotla, and treated the women and children brutally. They kept the entire community incommunicado for two days.”111 The CNDH established that “the conduct displayed [by the military forces] ordered to direct, supervise and authorize this operation violated the human rights of the inhabitants of the community, […] by preventing them from exercising their right to freedom of movement […].”112
For their part, the defense counsels of the alleged victims in the domestic proceedings pointed out that the Mexican Army is not a competent authority to investigate and prosecute crimes, and that “it will be the Public Prosecutor’s Office, the Judicial Police under its command or the assistants of the Social Representative himself who may verify [the] inconveniences [and deprivation of liberty].”113 In this regard, the Second Collegiate Court considered that the Army was authorized to arrest the alleged victims “based on their carrying firearms intended for the exclusive use of the Armed Forces.”114
Taking these elements into account, the Court considers that this case is related to previous jurisprudence where, based on an official State document,115 it was confirmed that the presence of the Army carrying out police work in the state of Guerrero has been a controversial issue with respect to individual and community rights and freedoms, and has placed the population in a vulnerable situation.116
In this regard, the Court considers that, in some contexts and circumstances, a heavy military presence accompanied by the intervention of the Armed Forces in public security activities may imply a risk to human rights. Thus, for example, international organizations, such as the United Nations Human Rights Committee and the Special Rapporteur on the Independence of Judges and Lawyers, have considered the implications of allowing military units to act as judicial police and have expressed concern at the fact that the military carry out the tasks of investigation, arrest, detention and interrogation,117 and have stated that “[t]he functions of the judicial police should be carried out exclusively by a civilian entity.” […] This would ensure the independence of investigations and would greatly improve access to justice for victims and witnesses of human rights violations, whose complaints currently tend to be investigated by the very institutions they accuse of perpetrating those violations.”118
Moreover, this Court has held that "even though […] the State has the right and obligation to guarantee its security and maintain public order, its power is not unlimited, since it has the duty, at all times, to apply procedures according to Law and respectful of the fundamental rights of all individuals under its jurisdiction.”119 In that respect, the Court has emphasized the extreme care which States must exercise when they decide to use their Armed Forces as a means of controlling social protests, domestic disturbances, internal violence, public emergencies and common crime.120
As this Court has held, States must restrict to the greatest extent the use of Armed Forces to control domestic crime or internal violence, since they are trained to defeat a legitimate target and not to protect and control civilians, a training that corresponds to police forces.121 The strict fulfillment of the duty to prevent and protect endangered rights must be assumed by the domestic authorities, observing a clear demarcation between military and police duties.122
The Court considers that the possibility of assigning the Armed Forces tasks aimed at restricting the personal liberty of civilians, in addition to meeting the requirements of strict proportionality in the restriction of a right, must respond, in turn, to strict exceptional criteria and due diligence in the protection of treaty guarantees, bearing in mind, as indicated (supra paras. 86 and 87), that the system of the armed forces, from which it is difficult for members to remove themselves, is not compatible with the functions of civilian authorities.
