Remedies (Law)

(In  English)
The Ayotzinapa Investigation Commission
as an appropriate remedy in cases of complex human rights violations

(Part of this chapter is based in the amicus curiae written by the authors and signed by dozens of law professors and researchers, filed in January 2019 before the Mexican Supreme Court re the non-compliance proceedings related to the amparo ruling of May 31, 2018 (Amparos en revision 203/2017, 204/207, 205/2017 y 206/2017), issued by the First Collegiate Court of the XIX Circuit sitting in Reynosa, State of Tamaulipas. The non-compliance proceedings were registered initially as Incidente de Inejecución 4/2018, and currently, in the Supreme Court, as Incidente de Inejecución 154/2018 in the Supreme Court registers).

(“Introduction” of the chapter; footnotes omitted)

In September 2014, one of the most horrifying episodes in Mexican history occurred:  the aggression and forced disappearance of 43 students of the Ayotzinapa Rural School, as well as the execution of six people and the causation of serious damage to two other in the city of Iguala (State of Guerrero). The events at Iguala made a deep impact in Mexico and abroad. Not only they constitute an extremely serious violation of the human rights of the victims and their families, but also make visible the systemic inability of the Mexican state to protect those rights, to efficaciously and impartially investigate serious rights violations under its duty to guarantee the right to justice, truth, reparation and non-repetition. It also evinced the Mexican State incapacity to guarantee due process and the right not to be tortured of the individuals public authorities had identified as presumptively implicated in the commission of the events.     

In this context, on May 31, 2018, the First Collegiate Court of the Nineteenth Circuit (situated in the city of Reynosa, State of Tamaulipas) issued an amparo ruling that is extraordinarily important for at least three reasons: first, because it is in itself a contribution of invaluable importance to the clarification of the facts and the identifications of the rights violations committed over the course of the investigation by federal attorney general office (Procuraduría General de la República, PGR), illustrating profound problems of lack of immediacy, efficacy impartiality and independence. Those problems include, among others, convincing evidence that self-incriminating confessions were used in the investigations —very probably obtained by using torture— and operated as the main test hypothesis; the practice of scientific evidence was obstructed and the value of independent scientific evidence suggesting the weakness of the PGR line of investigation —in great part produced by an international expert group under an agreement signed with the Mexican state— was ignored, as were equally ignored the serious indicia pointing at public authorities involvement in the commission of the facts.

Second, the ruling identifies national and international standards to be respected in criminal investigations concerning serious human rights violations, including the prohibition of considering self-incriminatory evidence; the duty to investigate the possible acts of torture suggested by delay in the presentation of the suspects to the judge, among other elements; the need to assure that victims may participate throughout the entire process, provide evidence, suggest lines of investigation and be present in all procedural stages; the pursuing of different lines of investigation and possible theories of the case, even (and specially) if they involve state agents; and the practice of expert witness evidence to ascertain the support of the different hypothesis, among others. 

Third, on grounds that the aforementioned standards were violated in the investigation of the events involving the Ayotzinapa boys, the ruling not only requires the reinstatement of the criminal proceedings to allow for the full investigation of torture allegations: it also provides for the creation of an Special Commission of Investigation for Truth and Justice (Comisión Especial de Investigación para la Verdad y la Justicia, CEIVJ), composed of federal attorney general  (PGR), the National Commission of Human Rights (CNDH) and the representatives of the victims, as well as other international organizations such as the Inter-American Commission of Human Rights (ICHR) and the United Nations (UN), even recommending the return if the Interdisciplinary Group of Independent Experts (Grupo Interdisciplinario de Expertos Independientes, GIEI). This Commission will have the function of investigating the facts related to serious human rights violations and explore different investigation lines and theories of the case that have been up to now discarded by the PGR, but it would not deploy the tasks of criminal charge or indictment that are the province of the PGR.

The presence of the remedial order directing public authorities to create the CEIVJ has sparked controversy in the Mexican academic community. Some have wondered if the Reynosa magistrates might have overstepped their area of jurisdiction, if it implies the judicial creation of a new state institution or the disregard of the attorney general monopoly of accusation; others have suggested that, although the order rests on sufficient legal grounds, it is so innovative and politically bold that it should have been ordered by an international human rights court, not a national court —at least, not by one placed in the margins of the country

The purpose of this chapter is to underline the value of the First Collegiate Court ruling and specifically of the order of creation of the Ayotzinapa Investigative Commission, and show that it is perfectly admissible within the Mexican constitutional framework. For this, and after summarizing the litigation path of the case, we will argue that the rulings must be celebrated for its legal rigor and the way it satisfies important national and international legal standards, both procedural and substantive. Additionally, we will show that the remedial order providing for the creation of the Investigative Commission, though a novelty in the Mexican context, is fully grounded in Mexican law and inscribed in a regional Latin American tendency characterized by complex remedial orders directed to meet serious human rights violations that originate in structural problems.     

In our view, the order of creation of the CEIVJ is an adequate and proportional remedy on the face of the complex and structural nature of the multiple violations of human rights occurred in Iguala. Far from being simple or discreet violations that can be repaired simply by reinstating criminal proceedings or materially compensating the victims, the Tamaulipas collegiate courts understood that the problems of the investigation are related to a profound incapacity of the Mexican investigative authority to fulfill the standards of efficacy, immediacy, independence and impartiality of the criminal investigation, and inscribe themselves in a context of generalized impunity in the country. It is these extraordinary circumstances that justify the creation of an extraordinary mechanism capable of overcoming the deficiencies, as international standards on the matter recommend. Moreover, as we will argue in the last part of the text, the ruling implies an important step forward with regards one of the great pending tasks of the Mexican constitutional system: transforming the old amparo writ into an effective resource for the protection of rights —at least or, above all, in the most serious cases

Es para nosotros un agrado presentar al público esta obra, vigorosa y ambiciosa, resultado de un proyecto de investigación conjunto, adelantado por profesores italianos y colombianos, los cuales, en un encuentro académico en abril del 2019 en la Universidad Externado de Colombia, se centraron en analizar el tema del incumplimiento y el sistema de remedios contractuales, y también recogieron sus intervenciones, las ajustaron y las enriquecieron para convertirlas en estupendos capítulos de libro, los cuales fueron organizados para componer la presente obra bajo nuestra dirección. Además, fueron invitados otros colegas para enriquecer el contenido de la obra y fortalecer los objetivos nobles con los que inició el proyecto.

This case concerns a privatised refoulement operation carried out during the night between the 7th and the 8th of November 2018. In the course of the operation, the Maritime Rescue Coordination Centre (MRCC) Rome directed a Panamanian merchant vessel, the Nivin, to rescue a migrant boat adrift on the high seas in the Central Mediterranean. MRCC Rome also directed the Nivin to liaise thereafter with the so-called Libyan Coast Guard (LYCG). As the Italian MRCC, which was de facto acting as coordinator of the search and rescue (SAR) operation, knew or should have known, this was bound to lead to the disembarkation of the survivors in Libya, in breach of the survivors’ rights under the International Convention on Civil and Political Rights (ICCPR).