A federal tribunal in Mexico has ordered the creation of a special Investigative Commission to continue the investigation into the enforced disappearance of the 43 Ayotzinapa students and the extrajudicial execution of six individuals on September 26 and 27, 2014. The reluctance of the Mexican government to establish the Commission sends a troubling message that it lacks the political will to determine the whereabouts of the 43 students and to ensure justice in the case.
On May 31, 2018, the First Collegiate Tribunal of the Nineteenth Circuit, based in Reynosa, Tamaulipas, issued a historic ruling in the Ayotzinapa case. The ruling was issued in the context of constitutional relief (amparo) proceedings in which at least nine defendants prosecuted in relation to the case claimed their human rights were violated upon being detained.
The tribunal’s ruling concludes that the detention of these individuals was illegal due to the PGR’s investigative errors. It also concluded that the PGR’s investigation has not been prompt, effective, independent, or impartial, and that it consistently violated the rights of the victims, including the 43 students and their families as well as the accused persons.
The first of its kind, the ruling acknowledges how the PGR’s lack of autonomy and its political ties to the executive branch can lead to the obstruction of investigations into human rights violations involving members of the armed forces, the Federal Police, and other agencies dependent on the executive. It calls attention to how criminal investigations can be manipulated in Mexico in order to protect political elites—at the expense of truth, justice, and human rights. In this regard, the ruling is an indicator of the importance of Mexico’s transition from the PGR to a more independent National Prosecutor’s Office (Fiscalía General de la República), which will be autonomous from the executive branch.
Below, WOLA analyzes the content of the federal tribunal’s ruling, what it means for the Ayotzinapa case, and how the Mexican government can demonstrate the political will necessary to create the new Investigative Commission.
1. What are the irregularities in the official Ayotzinapa investigation that led the federal tribunal to order the creation of the Investigative Commission?
The federal tribunal analyzed the legality of the arrest of the nine defendants—who allegedly are members of Guerreros Unidos, the criminal group involved in the students’ disappearance—that filed a constitutional relief (amparo), and analyzed whether their rights and the rights of the victims were violated in the context of the Ayotzinapa case (which is closely related to the case of the nine defendants). The tribunal found that the PGR had committed grave irregularities in both cases, most of which remain uninvestigated and unsanctioned.
For example, the federal tribunal found that members of the Navy (Secretaría de Marina, SEMAR) and other government agencies had illegally detained the suspects and that their justification for delaying the presentation of the detainees before the PGR lacked credibility. The importance of investigating whether these delays were justified lies in the fact that it was particularly during those periods that the detainees suffered injuries and/or “spontaneously” confessed to having participated in the attack against the 43 students. In one of the cases, Navy officials transferred a detainee from the city of Cuernavaca, Morelos to Mexico City, which is about an hour away. However, the Navy took more than 11 hours to present the detainee to the PGR, alleging that one of the vehicles suffered a flat tire on the way to Mexico City. The tribunal rendered this narrative uncredible.
Moreover, the PGR has failed to investigate the cases of torture and inhumane treatment documented in two reports by the Interdisciplinary Group of Independent Experts (Grupo Interdisciplinario de Expertos Independientes, GIEI) established by the Inter-American Commission on Human Rights (IACHR), as well as in the report Double Injustice, issued by the Mexico branch of the United Nations Office of the High Commissioner for Human Rights (OHCHR) in March 2018.
For example, the OHCHR found strong grounds to believe that at least 34 individuals detained in relation to the case had been tortured, and that in 67 percent of the cases it documented, the victims indicated that they were tortured by members of the Federal Ministerial Police within the PGR’s Criminal Investigation Agency (Agencia de Investigación Criminal, AIC). The Group of Experts and OHCHR reports have played a critical role in exposing the lack of results in the investigation into these cases of torture and demonstrate the positive impact of maintaining international supervision over the case.
The tribunal emphasized the importance of investigating and sanctioning the cases of torture in the case, especially since the government’s investigation is based almost entirely on self-incriminating confessions and defendant testimonies that are suspected to have been obtained through torture or other types of coercion. In that regard, the tribunal concluded that the PGR’s investigation cannot be considered serious or credible until the allegations of torture and manipulation of evidence that have tainted the investigation have been resolved. WOLA therefore reiterates the importance of investigating the participation of federal officials in the obstruction of justice in the case, a recommendation that was also set forth by the IACHR in its performance report on the Special Follow-Up Mechanism for the Ayotzinapa Case.
Finally, the federal tribunal determined that the PGR investigation into the Ayotzinapa case has not been prompt, effective, independent, or impartial:
Because of this, the federal tribunal ordered that: 1) certain investigative actions be repeated, 2) an investigation be undertaken to determine whether the confessions and testimonies used by the PGR to substantiate its official theory of the Ayotzinapa case were obtained through torture, and 3) an “Investigative Commission for Truth and Justice (Iguala Case)” be created to continue the investigation.
2. What is the Investigative Commission for Truth and Justice (Iguala Case) and how will it function?
The Investigative Commission is an extraordinary justice mechanism, whose creation was ordered by the First Collegiate Tribunal of the Nineteenth Circuit, based in Reynosa, Tamaulipas, to continue the investigation into the enforced disappearance of the 43 students and the extrajudicial execution of six individuals on September 26 and 27, 2014.
The order to create the Commission is backed by the Mexican Constitution, which establishes that international treaties and jurisprudence are binding and mandatory in Mexico. In this case, the federal tribunal referenced several rulings issued by the Inter-American Court of Human Rights (Inter-American Court) and the UN Minnesota Protocol to order the creation of the new Investigative Commission.
The Commission will be made up of the families of the victims (vía their legal representatives), new PGR investigators, and Mexico’s National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH). The tribunal decision also permits the participation of international bodies like the UN or the IACHR-appointed Interdisciplinary Group of Independent Experts that provided technical assistance in the original investigation.
The new Investigative Commission is mandated to redirect the case towards the lines of investigation identified by the Group of Experts and the OHCHR, as well as to investigate the irregularities that tainted the original probe, including the allegations of torture. The creation of the Commission ensures that other government institutions—namely the CNDH—can effectively monitor the investigation and ensure that the rights of the victims, their families, and the individuals detained in relation to the case are respected. The federal tribunal’s ruling outlines the basis for creating, providing resources for, and launching the Investigative Commission, and leaves room for the PGR to work with the families to determine certain aspects of how the Commission will function.
The participation of the families and their legal representatives is a fundamental aspect of the ruling. It is important to highlight, however, that the ruling does not call for the families to be in charge of carrying out the investigation. On the contrary, during the public session in which the ruling was approved, the federal tribunal judges made it clear that under no circumstances should the PGR be relieved of its obligation to investigate the Ayotzinapa case, and that the PGR should continue to lead the investigation.
However, the creation of the Investigative Commission finally gives the families of the victims a central role in the investigation that they should have had since the case was opened. Thanks to the tribunal’s decision, the PGR is now obligated to take into account the families’ concerns, to respond to their questions about the lines of investigation it is (or should be) pursuing, and to consider evidence the families wish to incorporate into the investigation.
The creation of the Commission serves as a new opportunity for the Mexican government to demonstrate its willingness to resolve the case and to refocus its efforts towards determining the whereabouts of the 43 students rather than attempting to prove its “historical truth”.
3. Is it possible to create the Investigative Commision as the federal tribunal’s ruling orders?
Yes, it’s possible, but the creation of the Commission will depend on the political will of the Mexican government, especially that of the PGR. If the PGR has the will to comply with the federal tribunal’s ruling, it can direct resources towards launching the Commission, developing methods of collaboration between the authorities that will form part of the Commission, and ensuring that the students’ families have a central role in the investigation going forward.
With political will, the PGR can also take advantage of Mexico’s existing mechanisms to guarantee the active participation of victims and their families in investigations into other cases of enforced disappearances in the country. For example, in 2012, a Working Group was created in Coahuila in which families, the Coahuila government, and the OHCHR collaborate and hold frequent meetings to go over advances in investigations into enforced disappearances and disappearances committed by criminal groups within the state. In at least 28 cases of recent disappearances in Tamaulipas, the PGR has received information from the OHCHR and human rights groups on how to investigate the participation of members of the Navy in the disappearance of civilians.
4. Can the ruling that calls for the creation of the Investigative Commission be overturned?
No. The tribunal’s decision is final and binding; it cannot be modified or revised by other tribunals or even by Mexico’s Supreme Court, although certain aspects of the ruling can be clarified to ensure the ruling is fully complied with. Mexico’s Constitution, as well as the Amparo Law, require the PGR to comply with the federal tribunal’s ruling and, in turn, to create the Investigative Commission.
If the PGR fails to comply, its officials and their hierarchical superiors—including the attorney general or whoever is heading the PGR in his or her absence—can be removed from office and charged with the crime of noncompliance with an amparo judgement, and could be sentenced to up to 10 years in prison.
However, the Amparo Law does outline procedures, called “ancillary proceedings” (incidentes) in which it can be argued that it is impossible to comply with an amparo judgement, like the one that ordered the creation of the Investigative Commission. These procedures are resolved before the Supreme Court. In the event that the Supreme Court decides that it is impossible to comply with the ruling, it may order a “substitute compliance” (cumplimiento sustituto), that is, actions that should be taken to guarantee the human rights of the victims other than those ordered by the original ruling.
On June 22, 2018, the PGR presented an ancillary proceeding, asserting that it is impossible to create the Investigative Commission for the Ayotzinapa Case. Now, the PGR must prove that creating the Commission is indeed impossible. It’s not surprising that the PGR has resorted to bureaucracy and legal procedures to justify the lack of results in the Ayotzinapa investigation, nor that it is refusing to create the Investigate Commission. But its reaction to the ruling is a troubling indication of its lack of political will to resolve the case and its lack of openness to judicial scrutiny, and it appears to be a desperate attempt to defend the official investigation, which is full of irregularities.
The PGR went beyond utilizing the legal system to challenge the creation of the Investigative Commision and even brought the issue into the political sphere. Mexico’s National Conference of Attorney Generals (Conferencia Nacional de Procuración de Justicia, CNPJ), which brings together prosecutors from across the country—and over which the PGR has a substantial amount of influence—issued a statement against the creation of the Investigative Commission. The PGR’s effort to obtain this statement from the CNPJ is the most recent example of how it is more concerned with avoiding its responsibility to address the errors in the Ayotzinapa case than with finding the 43 students. It is also a clear demonstration of how the PGR does not distinguish between politics and justice.
This is why it is paramount that control over the justice system is taken away from the executive branch in Mexico by creating an independent, autonomous National Prosecutor’s Office (Fiscalía General) to replace the PGR. In Mexico, the executive branch frequently manipulates the PGR to protect political elites or to attack political opponents, at the expense of truth and justice.
5. What’s next?
In a press conference, the families of the 43 students urged President Enrique Peña Nieto to publicly express his government’s commitment to comply with the federal tribunal’s ruling and to create the Investigative Commission. However, the ancillary proceeding the government submitted to challenge the tribunal’s decision will surely delay the creation of the Commission.
The Mexican government has made it clear that it is exhausting all avenues to avoid complying with the sentence that orders the Investigative Commission for the Ayotzinapa case. Until all legal means are explored, it is likely that no movement will be made to establish the Commission. To date, the PGR has not called on the families and their representatives to discuss next steps. Meanwhile, it is important to note that the Special Follow-Up Mechanism for the Ayotzinapa Case, established by the Inter-American Commission on Human Rights (IAHCR) in continuation of the work of the Group of Experts, continues to monitor the PGR’s progress in investigating the case and in fulfilling the experts’ recommendations.
In the meantime, the families of the 43 students continue to wait for the Mexican government to tell them where their loved ones are.
Resources on the Ayotzinapa case: