(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

We identify and evaluate a legal instrument hitherto ignored in analyses of the Inter-American Human Rights System: compliance agreements. These agreements emerged as a tool to negotiate the implementation of recommendations made by the Inter-American Commission on Human Rights once the Commission has found states responsible for human rights violations. In the first part of the paper, we document the emergence of this legal instrument and its novel role in the system. In the second part, we provide statistical evidence from event-history and difference-in-differences models showing that agreements increase the probability of compliance and cut the expected time to compliance by half. Agreements thus contribute to a potential solution for the perceived crisis of compliance in the Inter-American Human Rights System.

This chapter examines the interaction between constitutional law and international human rights law in three Latin American countries: Argentina, Chile, and Colombia.  The chapter discusses these countries as exemplary because they reveal the varying levels of integration between domestic and international law in Latin America.  In Argentina and Colombia, courts rely extensively on international human rights treaties in local adjudication. In contrast, Chilean courts’ use of international human rights standards is inconsistent.  Several Latin American countries have adopted the block of constitutionality doctrine, whereby national judges must not only consider domestic norms when deciding cases involving fundamental rights, but also international treaties and the interpretation of such treaties by international courts.  In other countries, such as Argentina, constitutional amendments specifically incorporate a large number of international human rights treatises into the constitution.  These three case studies—followed by a set of questions directed to instructors and students—enrich a broader legal debate, namely, how domestic courts interpret and enforce international human rights norms.

Este libro sistematiza en gráficos los resultados obtenidos por los
autores en el marco del Proyecto de Investigación Científica y Tecnológica UNPAZ 2018 B0043/18.
La idea de publicar algunas estadísticas del Sistema Interamericano de Protección de los Derechos Humanos en las peticiones contra la República Argentina que han sido publicadas desde 1971 hasta el 1º de octubre de 2020 obedeció a la necesidad de contar con datos reales sobre el número de denuncias que se han tramitado y obtuvieron
algún tipo de respuesta por la Comisión Interamericana de Derechos Humanos y la Corte Interamericana de Derechos Humanos. Hasta el momento no existe una publicación que recoja la información aquí brindada, por lo que creemos que podrá ser de suma utilidad para estudiantes de derecho y profesores/as e investigadores/as que trabajan cuestiones vinculadas al Sistema Interamericano de Protección
de los Derechos Humanos. [Extracto de la Introducción]

After the Second World War, human rights moved away from the margins and became an important aspect of international law. This new paradigm was based on human person at the centre of international human rights law. That is, instead of the state-centric Westphalian system, international human rights law is based on the human person as the source and end of law. Human rights instruments are created, interpreted and applied taking into account the human person. This pro homine framework flows from human rights instruments and was created by states themselves. The Universal Declaration of Human Rights and the American Declaration of the Rights and Duties of Man established this pro homine framework, which was later crystalized by following international treaties and strengthened by decisions from the European Court of Human Rights, the Inter-American Court of Human Rights and the International Court of Justice.