By Michael Evans and Jesse Franzblau
Evans and Franzblau work at the National Security Archive. This report first appeared May 29 in Migration Declassified.
Can the Mexican government continue to hide evidence from the public about grave human rights atrocities? A pair of access to information cases now moving through the Mexican justice system may put an end to the practice.
In a landmark decision in support of the right to the truth, a Mexican federal judge for the first time has ruled that three horrific migrant massacres from 2010-2012 constitute clear violations of human rights and said the Attorney General’s office (Procuraduría General de la República-PGR) is required to release a public version of its investigatory files on the cases. The investigations have long been shrouded in secrecy amid charges that state agents in some cases may have collaborated with the criminal groups responsible for the killings.
The cases stem from a shocking series of mass murders in northeastern Mexico that took the lives of hundreds of migrants. The victims, mainly Central Americans kidnapped from intercity buses while traveling north to the U.S.-Mexico border, were pawns in a brutal conflict between criminal organizations, who murdered them with impunity, in some cases simply to prevent them from falling into the hands of their rivals. In one case, the corpses of 49 victims were completely dismembered before being dumped along the side of the road in the town of Cadereyta Jiménez, Nuevo León, making identification of the corpses especially difficult.
The ruling comes in response to an access to information request brought by Mexico’s Fundación para la Justicia y el Estado Democrático de Derecho (FJEDD) on behalf of the families of victims from those cases.
The court’s decision is a crucial breakthrough for efforts to obtain official information on gross abuses against migrants in Mexico and the latest in a growing body of important legal precedents in Latin America affirming the right to information as a fundamental human right. Migrant victims, their family members, and broader society have the right to know the truth behind such acts of violence, according to the 60-page decision.
“Avoiding impunity and the repetition of such acts in the future”
The Mexican attorney general’s office had refused to divulge the files under Mexico’s freedom of information law citing exemptions in Article 14 (I) and (II) of the Transparency Law, and Article 16 of the Federal Code of Criminal Procedure, allowing the government to withhold information related to “averiguación previa” (“preliminary investigation”). But that exception, the judge asserted, is in these cases trumped by the last paragraph of Article 14 of the Federal Transparency Law, which says that the government can in no case withhold information about grave human rights violations and crimes against humanity. (See Article 14, final paragraph of Mexico’s Transparency Law)
Citing international court decisions, United Nations declarations, and the Mexican Constitution, Judge Fernando Silva García said transparency in such cases is key to “avoiding impunity and the repetition of such acts in the future.” The sensitive nature of investigatory files is precisely why it is so important to make them public, since they “affect society as a whole.” Mexico’s access law, he wrote,
… foresaw an exception to withholding files on preliminary investigations in those extreme cases in which the crime being prosecuted is of such gravity that the public interest in maintaining the preliminary investigation files in secrecy is superseded by the interest of society as a whole in knowing of all the actions that are being brought to bear for the timely investigation, detention, judgment and sanctioning of those responsible.
State complicity
Key to Judge Silva García’s determination that the cases qualified as a grave violations of human rights is the abundance of evidence that state officials may be connected to the murders. State participation or acquiescence in the act is one of three criteria required to establish that violations are grave abuses under guidelines established by the Inter-American Court of Human Rights and approved by the Mexican Supreme Court.
His decision cites multiple authorities, including the United Nations and Mexico’s National Human Rights Commission (CNDH), which have found evidence of Mexican officials’ complicity in targeted abuses against migrants, particularly in the wave of kidnappings and murders that overtook the states of Tamaulipas and Nuevo León during those dark years. Other reports cited the state’s failure during that time to take the steps necessary to prevent further abductions.
Declassified documents obtained by our organization and shared with the plaintiffs in this case underscore charges that state officials collaborated in migrant abuses. One U.S. Embassy cable highlights the arrest of 16 police officials in connection to the 2010 massacre of 72 migrants in San Fernando, Tamaulipas, and the fact that state officials were “trying to downplay both the San Fernando discoveries [of mass graves] and the states [sic] responsibility for them.” Embassy officials said they did so despite being “fully cognizant of the hazards of highway travel in this area.” Another U.S. report described a state of “near total impunity” for criminal organizations operating in that region “in the face of compromised local security forces.” (See previous post on U.S. documents on San Fernando massacre).
While a number of people have been arrested in relation to the crimes, there has been little information available on the cases against them. The presumed authors of the violence, Édgar Huerta Montiel (“El Wache”) and Martín Omar Estrada Luna (“El Kilo”) remain in detention. Miguel Ángel Treviño Morales, the top leader of the Zetas, was arrested by Mexican authorities in July 2013. More recently, Mexico reported the arrest of an alleged human smuggler (pollero) said to be linked to the case.
Information commissioners violated rights of victims
In denying the information, Mexico’s attorney general argued that none of the massacres had been identified as human rights violations by a competent legal authority. Mexico’s Federal Institute of Access to Information (Instituto Federal de Acceso a la Información y Protección de Datos – IFAI), the appellate body for access to information cases in Mexico, also declined to make such a determination, declaring itself incompetent to do so.
But Judge Silva cast those arguments aside, ruling that the massacres were, prima facie, human rights abuses and that IFAI must order the Attorney General’s office to release a public version of its investigative files. The court also found that the IFAI commissioners are obliged to make such determinations for purposes of access to information; that IFAI should no longer allow agencies to deny access to judicial files when they pertain to human rights crimes; and, perhaps most importantly, that IFAI had violated the rights of the victims and their families in denying access to the information in the first instance.
“[I]f IFAI has any doubts with respect to [this ruling],” Judge Silva wrote, “the authorities should be governed by the principles of good faith, of maximum disclosure, and as the Inter-American Court of Human Rights signaled in the case of Gomes Lund vs Brasil with respect to grave violations of human rights: ‘when in doubt or in the case of a legal vacuum, the right of access to information should take precedent.’”
Test case for new information commissioners
This and a similar case brought by the pro-transparency group Article 19 shine a spotlight on IFAI just as the oversight body is undergoing a major transformation in personnel and responsibilities. The rulings have forced a newly-selected group of IFAI information commissioners to make a clear statement on human rights and access to information during their first weeks in office. Unfortunately, IFAI elected to join the PGR in appealing the judge’s ruling, further delaying the release of important information on these important cases to victims, their families and members of the public.
Still, Judge Silva’s passionate defense of the right to truth offers a clear legal path for Mexico to overcome such challenges and abide by both the letter and the spirit of the Mexican access law and a growing body of international jurisprudence guaranteeing access to information on grave human rights abuses.
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