RIGHT TO JUDICIAL GUARANTEES AND JUDICIAL PROTECTION IN RELATION TO THE OBLIGATION TO RESPECT AND GUARANTEE RIGHTS, THE DUTY TO ADOPT DOMESTIC LEGAL EFFECTS AND THE OBLIGATIONS EMBODIED IN THE INTER-AMERICAN CONVENTION TO PREVENT AND PUNISH TORTURE
Regarding the alleged violation of Articles 8,209 25210 and 2211 of the American Convention, the Commission and the representatives alleged that in the criminal proceedings against Messrs. Cabrera and Montiel, evidentiary value was given to statements and self-incriminating confessions obtained under duress. The representatives also noted the following irregularities: the reversal of the burden of proof to the detriment of the accused; the presumption of guilt arising from the admission of a series of tainted or insufficient evidence and the lack of a proper defense and effective remedies. In this respect, the representatives argued that the appeal through the filing of a direct amparo was ineffective, among other reasons, because of the erroneous application of the principle of procedural immediacy, the failure to exclude evidence obtained under torture and because it was not possible to contest both the detention and the solitary confinement of Messrs. Cabrera and Montiel, since the court considered that “it was not the appropriate procedural moment.” Furthermore, the Commission and the representatives claimed that the victims’ accusations regarding the alleged torture committed against them did not lead to investigations ex officio; that the proceeding was conducted by a jurisdiction that was not competent, and within an unreasonable time; that essential procedures were not followed; and that an effective remedy was not afforded to the alleged victims to allow them to contest the exercise of the military jurisdiction.
The State argued that all judicial guarantees were strictly observed in the proceedings conducted against the victims, and that the defense had access to several simple and expedite remedies, which it used to the full. It added that these remedies were effective, insofar as some of the charges were withdrawn and some items of evidence that were not initially taken into account were assessed, thanks to the filing of such remedies. The State further indicated that “the fact that the appeals filed by the defense were not resolved, in general, favorably” does not imply that the victims “did not have access to effective remedies.” As to the investigation for the alleged torture, the State pointed out that the remedies filed by the defense before the competent, impartial and independent judicial bodies led to substantive discussions to shed light on the alleged torture. Moreover, it indicated that there is nothing to suggest that the court or any other state agent intended to delay the investigation.
Article 8(1) of the Convention establishes the guidelines of the so-called “due process of law,” which involves, among other aspects, the right of every person to be heard with due guarantees and within a reasonable time, by a competent, independent and impartial Court , previously established by law, for the determination of his rights.212
Moreover, Article 25(1) of the Convention establishes, in broad terms, the obligation of every State Party to provide, to all persons subject to its jurisdiction, an effective legal remedy against acts that violate their fundamental rights.213 In particular, this Court has established that States Parties have an obligation to provide effective legal remedies to victims of human rights violations (Art. 25). Such remedies must be substantiated in accordance with the rules of due process of law (Art. 8(1)), in keeping with the general obligation of States to guarantee the free and full exercise of the rights recognized by the Convention to all persons subject to their jurisdiction (Art. 1(1)).214
The Court has also pointed out that States have the responsibility to embody in their legislation and ensure full application of effective remedies and guarantees of due process of law before the competent authorities, which protect all persons subject to their jurisdiction from acts that violate their fundamental rights or which lead to the determination of the latter’s rights and obligations.215 The Court has likewise established that for a State to comply with the provisions of Article 25 of the Convention, it is not sufficient for such remedies to exist formally, but that these must be effective,216 that is to say, there must provide results or answers to the violations of rights enshrined in the Convention, in the Constitution or in the law.217 The Court has reiterated that this obligation implies that the remedy must be appropriate to combat the violation and that it must be applied effectively by the competent authorities.218
In this respect, the Court emphasizes that reference has been made to several general irregularities that would affect the aforementioned judicial guarantees.219 The representatives alleged that these irregularities relate to the evidence produced regarding the possession and use of firearms and drugs (inter alia, some expert opinions and a sodium rhodizonate test), and other items of evidence furnished in the initial statements by the victims. The Court deems it appropriate to review the final conclusions of the judicial bodies regarding these issues.
As regards the controversies over the weapons, the Court notes that the judgment issued by the Second Collegiate Court rejected each of the arguments put forward by the defense counsel of the victims indicating, inter alia, that:
in relation to the expert opinion concerning the identification of the alleged firearms, “although [the expert witnesses] did not prepare their report in written form,”220 “this does not imply that it is invalid” in view of their appearance and their description of the firearms;
“it is legally irrelevant that [...] the expert witnesses [...] dedicated a short amount of time,” “which is surely the result of the expertise they posses” since they work for the Federal Judicial Police”;
“in general, firearms have [their] data engraved” which “facilitates their legal classification without the need to present the operations or tests on which their opinions were based;”
“it is not possible to accuse the military personnel for not having brought the detainees [before a judge] without delay,” “it was less feasible to make available the instruments and objects of the crime,” and
“in no way” can the alleged negligence “imply the inexistence of the weapons.”221
The Court emphasizes that this Second Collegiate Court acquitted Mr. Montiel Flores of the crime of carrying a ”22 caliber Remington rifle,” given that, in one of his statements he “emphatically denied” carrying such a rifle and because Mr. Cabrera’s testimony did not incriminate him in this respect. Nevertheless, the Second Collegiate Court confirmed Messrs. Cabrera and Montiel’s criminal responsibility for carrying firearms intended for the exclusive use of the Army, Navy and Air Force, with respect to the firearms that they did admit to carrying in their statement of May 6, 1999.222
As regards the sodium rhodizonate test that showed positive on the victims’ hands,223 the First Single Magistrate Court indicated that this test was performed in accordance with legal requirements and that it had not been “invalidated.”224 Regarding the fact that “the [defendants] were lying in the river water,” the trial court indicated that “only they stated this, but there is no data to confirm this fact, since while the soldiers indicate that they were lying down […], they in no way indicated that they had been in contact with the water in that river during that time.”225 Subsequently, the same court reiterated that only the victims had mentioned that they had been in contact with the river water while they were detained that day.226
Also, in relation to the crime of possession and planting of narcotics, the First Single Magistrate Court found various irregularities regarding the existence and destruction of the marijuana plantation. The court found that “no solid evidence was provided that proved its material and juridical existence, and instead the confession made by the accused […] was invalidated,227 together with the remaining evidence produced in the natural proceeding.”228 Finally, the court concluded that “there is no solid evidence in the court records to prove that the procedures ordered by the preliminary inquiry were ‘prefabricated’ without the intervention of the accused; instead, what happened in this case is that the measures taken as a result of the preliminary inquiry were inadequate.” Bearing in mind the foregoing, the conviction against Mr. Montiel for the crime of planting of marijuana was revoked.229
In addition to the alleged irregularities related to the possession and use of firearms and narcotics and the sodium rhodizonate test, the representatives requested that the statements rendered by the victims on May 4 and 6, 1999 be disregarded, arguing that Messrs. Cabrera and García never left the premises of the military battalion where they were allegedly detained during those days. In this respect, their argument implies that, apart from other possible irregularities with respect to the firearms and the sodium rhodizonate test, the issue of in flagrante delicto had allegedly been proved on the basis of statements that were allegedly false and, moreover, obtained under torture. For this reason, the representatives criticized the Recommendation made by the CNDH, asserting that it “accepted, without any analysis, the version narrated by the soldiers concerning the reasons for the arrest [of Messrs. Cabrera and Montiel],” “disregard[ing] all evidence [to the contrary], without providing an assessment or explanation, to reaffirm the version of the agents mentioned as responsible [in this case].”
In addition to the alleged torture, the Court notes that the specific irregularities mentioned by the representatives in relation to those statements are the following:
the alleged absence of an ex officio defense, that is, that the court-appointed counsels signed those statements, thereby endorsing those irregular documents. This alleged irregularity will be analyzed by the Court in the chapter concerning the right to defense (infra paras. 152 to 162);
one of the witnesses who attested to the statement made on May 4, 1999 before the Prosecutor’s Office, and who was recognized by Mr. Montiel as one of his alleged torturers and who, during the confrontation hearing conducted within the framework of the criminal proceedings, carried a note containing the specific details of both the ministerial statement and the way in which to identify Messrs. Cabrera and Montiel.230 Regarding this irregularity, the domestic courts stated that this did not call into question the truthfulness of the witness because Mr. Montiel had indeed recognized him and the witness is one of the employees of the Public Prosecutor’s Office of Arcelia;231
the alleged contradictions between two soldiers who participated in the arrest and whose answers do not coincide when asked whether the victims were handed over to the Office of the Public Prosecutor of Arcelia, and about the caliber of the weapons seized. In this regard, the domestic courts considered that although the soldiers did not agree on whether the victims were transferred to Arcelia, the case file contains records of the proceedings carried out that day by the Public Prosecutor’s Office,232 and
the alleged formal language used by Messrs. Cabrera and Montiel, even though, at the time of the facts, they could not read or write, for which reason those statements could not be attributed to them.233 The domestic courts made no specific reference to this argument.
In its analysis of the right to personal liberty, the Court previously indicated that it is not appropriate to make any statement on the causes that motivated the arrest of the alleged victims (supra para. 102). The Court will now proceed to analyze, where applicable, the specific impact that these alleged irregularities might have had on some guarantees.
In order to analyze the alleged violations of Articles 8 and 25 of the American Convention and the alleged non-compliance with the obligations established in other Inter-American treaties related thereto, the Court will examine the following points in relation to the criminal proceeding undertaken against Messrs. Cabrera and Montiel, 1) the right to defense; 2) the obligation not to consider evidence obtained under duress and 3) the principle of presumption of innocence. As regards the investigation process into the alleged torture conducted by the military criminal justice system, the Court will examine: 1) the ex officio investigation; 2) the competence of the military criminal courts; 3) the effective judicial remedy of the military criminal justice system, and 4) adaptation of Mexican domestic law to the intervention of the military criminal justice system.
