The case of Damiano Gallardo Martinez and Others v. Mexico. The decision of the Committee against Torture of November 18, 2021. Message No. 992/2020.
In 2020, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Mexico.
As could be seen from the text of the Decision, the authors of the communication claimed that the State party had violated the rights of Mr. Gallardo Martinez under the articles 1, 2, 11, 12, 13, 14 and 15 of the Convention, as well as related rights by virtue of article 14 of the Convention (paragraph 1 of the Views).
The Committee's legal position: article 12 of the Convention [against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984] requires an immediate and impartial investigation whenever there are reasonable grounds to believe that an act of torture has been committed (paragraph 7.8 of the Decision) (See: Ramirez Martinez case et al. v. Mexico", paragraph 17.7.).
The Committee also recalls that an investigation as such is not sufficient to demonstrate that the State party has fulfilled its obligations under article 12 of the Convention; such an investigation must be prompt and impartial, which is necessary both to prevent further torture of the victim and because, as a rule, physical traces of torture they soon disappear (paragraph 7.9 of the Decision).
The Committee recalls its general comment No. 3 (2012), which provides that the next of kin or dependants of the victim are also considered victims in the sense that they have the right to receive full compensation.... The Committee also recalls that the above-mentioned general Comment mentions the necessary measures of restitution, compensation, rehabilitation and satisfaction, as well as the right to the truth, and emphasizes the need for States parties to provide the necessary means for the fullest possible rehabilitation of victims of violations of the Convention, which should be comprehensive and include medical and psychological assistance, as well as legal and social services (paragraph 7.11 of the Decision).
The Committee's assessment of the factual circumstances of the case: the authors claimed a violation of article 2 of the Convention, since the State party failed to comply with its obligation to prevent the described acts of torture during the arrest and subsequent detention of Gallardo Martinez. The Committee noted that Mr. Gallardo Martinez had been arrested by police officers without a court order and not at the scene of the crime, and that he had been unable to contact his roommate for almost two days and had been unable to communicate with an independent defense lawyer for four days. At that time, police officers interrogated him under torture and forced him to sign a confession, and an employee of the prosecutor's office appeared only to draw up a protocol of the prosecutor's office, which was signed by Mr. Gallardo Martinez as a result of torture. The Committee also established: Despite the injuries recorded during medical examinations, and despite appealing against official detention orders, the authorities decided to keep him in custody on the basis of his alleged confession, only ordering the drafting of a new decree eliminating formal defects. The Committee recalled its concluding observations on Mexico's seventh periodic report, in which it called on the State party to take effective measures to ensure that detainees in practice enjoy all basic guarantees from the very beginning of their deprivation of liberty in accordance with international standards (immediate assistance from a lawyer, access to an independent doctor, explanation of the reasons for their detention, his registration, immediate notification of a family member about his detention and delivery to a judge). Taking into account the circumstances described and the lack of information from the State party on these facts, the Committee considered that the State party had failed to comply with its obligation to take effective measures to prevent acts of torture provided for in article 2, paragraph 1, of the Convention (paragraph 7.5 of the Decision).
"The Committee takes note of the authors' allegations that during his detention, Mr. Gallardo Martinez was beaten and half-naked put in a pickup truck, in which for about two hours the police forced him to take humiliating and painful poses, threatened to rape and kill his daughter and his roommate, his parents, staged a shooting and they strangled him. The Committee also takes note of the authors' allegations that during his transportation and during about 30 hours of secret detention, Mr. Gallardo Martinez was not given water, was not allowed to sleep or use the toilet, was again beaten on the scrotum, stomach, back, face and head, strangled, forced to be present at He tortured other detainees and also threatened to kill his relatives again. In addition, during his detention in the Office of the Prosecutor's Office for Combating Organized Crime, injections were given to him without his consent, and once again the staff of the Department threatened to deal with his roommate, daughter and parents, he was not allowed to drink, eat and sleep. The authors claim that such treatment was used to force Mr. Gallardo Martinez to confess to the crime and sign blank sheets, which were later used as an alleged confession. Finally, during his five years and seven months in the Puente Grande maximum security prison in Guadalajara, he was again beaten on the back, kicked in the buttocks and shouted in his ear; he was searched for intracavitary attachments; he suffered from overcrowding, repeated solitary confinement, being held in a common cell for 22 hours a day and sleep deprivation; and also did not receive timely necessary surgical care" (paragraph 7.3 of the Decision).
The Committee also took into account the authors' argument that article 11 of the Convention had been violated, since the State party had not applied mechanisms to assess compliance with current legislation, which made possible serious violations in the registration of detention and lack of access to an independent lawyer and a doctor. The Committee noted that the State party had not disputed this allegation. The Committee recalled its concluding observations on Mexico's seventh periodic report, in which it called on the State party to ensure that detention and interrogation procedures are systematically reviewed in accordance with the provisions of article 11 of the Convention. On the basis of the above, the Committee concluded that the State party had violated article 11 of the Convention (paragraph 7.6 of the Decision).
The Committee noted that the authors had submitted official allegations of acts of torture, for which no progress had been made after more than eight years.... The Committee also stressed that neither the investigation initiated by the Office of the Prosecutor of the State of Oaxaca on its own initiative in 2016, nor the two petitions filed by the National Human Rights Commission in 2018, led to progress in the investigations (paragraph 7.9 of the Decision).
The Committee has taken note of the authors' claims that the harm caused to Mr. Gallardo Martinez and his family members, who are also the authors of this communication, has not been compensated.... In view of the lack of an urgent and impartial investigation of complaints filed in connection with reports of acts of torture, as well as all the elements noted in the previous paragraphs, the Committee concluded that the State party had failed to comply with its obligations under article 14 of the Convention, which caused harm to Mr. Gallardo Martinez and the other authors (paragraph 7.11 Solutions).
The Committee took note of the authors' allegations of a violation of article 15 of the Convention, since Mr. Gallardo Martinez was forced to sign an alleged confession of involvement in criminal acts, fearing that threats against his family would be carried out. The Committee noted that the alleged confession, together with the testimony of another person, also obtained under torture, were the elements by which the Prosecutor's Office justified the detention of Mr. Gallardo Martinez for five years and seven months before finally the case was dismissed..... Thus, the Committee considered that the facts presented to it indicated a violation by the State party of the obligation to ensure that no testimony given under torture could be used in court proceedings (paragraph 7.12 of the Decision).
The Committee's conclusions: The facts presented indicated a violation of article 2, considered separately and in conjunction with articles 1, 11, 12, 13, 14 and 15 of the Convention, which caused harm to Mr. Gallardo Martinez, and a violation of article 14, which caused harm to other authors (paragraph 8 of the Decision).