MEXICO: ARBITRARY DETENTION OF MEXICAN POLICE OFFICER JUAN CARLOS TOVAR MORENO

The International League Against Arbitrary Detention urges the Government of Mexico to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 55/2024 concerning Juan Carlos Tovar Moreno, asking the Government of Mexico to immediately and unconditionally release Juan Carlos Tovar Moreno and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Juan Carlos Tovar Moreno (Mexico): Opinion No. 55/2024. 

FORCED CONFESSIONS AND PRETRIAL DETENTION OF A POLICE OFFICER

Juan Carlos Tovar Moreno, a Mexican national born on 7 December 1970, is currently detained at the Reclusorio Preventivo Varonil Norte in Mexico City. At the time of his arrest, he was working at the Tlalpan Police Delegation.

According to the source, he was detained on 21 September 2011 at his workplace without a warrant or having committed any crime. He was forcibly taken to the Anti-Kidnapping Prosecutor’s Office, held incommunicado, and interrogated for hours without being informed of the reason for his detention. The following day, he was told he was accused of kidnapping for robbery and was pressured to confess. Despite providing an alibi and supporting evidence, he was placed in pretrial detention based solely on his status as a police officer and victim identifications. 

The Government of Mexico was given an opportunity to respond to the submitted allegations, which it did on 6 September 2023, after requesting an extension. It acknowledged the human rights violations while pointing out that courts had already ruled that the detention was final and could not be reversed. It denied any problems relating to the provision of adequate medical and psychological care, as well as poor conditions of detention and maintained that the sentence is aligned with Mexican law and International Human Rights Standards. 

UNLAWFUL ARREST,  ENFORCED DISAPPEARANCE AND LACK OF JUDICIAL OVERSIGHT

The source alleged that on 21 September 2011, Mr. Tovar Moreno was arrested at his workplace by police agents executing a localización y presentatión order issued by the Public Prosecutor, which is not an arrest warrant. It argued that no exceptional circumstances (e.g., flagrante delicto or urgent case) justified bypassing judicial authorisation. As Mr. Tovar Moreno was not informed of the reasons for his detention, the Working Group accepted the source’s allegation of a violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9(1) of the Covenant.

In response, the Mexican Government used article 21 of its Constitution to justify the Public Prosecutor’s authority, to which the Working Group replied that only judicial authorities can issue arrest warrants to deprive someone from their liberty under article 16(3) of the Mexican Constitution. Consequently, the arrest and subsequent detention were unlawful and breached international legal standards. 

Additionally, it was submitted that Mr. Tovar Moreno’s family was not informed of his whereabouts or the reasons for detention, leading them to consider him missing. This lack of notification violated the Nelson Mandela Rules and was equivalent to enforced disappearance.

Furthermore, his detention was found to be marked by automatic pretrial detention, without any individualised assessment of necessity, violating article 9(3) of the Covenant. In fact, the Working Group recalled that pretrial detention must be a measure of last resort and should not be used to preemptively punish or pressure the accused. The lack of individualised judicial review rendered his detention arbitrary and illegal. Echoing its previous calls and judgements by the Inter-American Court of Human Rights, the Working Group urged Mexico to eliminate such automatic pretrial detention practices.

Noting all the above, the Working Group concluded that Mr. Tovar Moreno’s detention was arbitrary within the meaning of Category I. 

INADEQUATE ACCESS TO JUSTICE AND PROCEDURAL SAFEGUARDS

According to the source, Mr. Tovar Moreno was denied access to a lawyer of his choice during the initial hours of his arrest, during which he was interrogated by experts, police, and doctors without legal assistance. The Working Group accepted those submissions and found the situation had violated his right to legal counsel from the beginning of detention - and at all stages of the process - as guaranteed under article 14(3)(b) of the Covenant. The government did not address this denial of legal assistance and only noted that on 22 September, while detained, Mr. Tovar Moreno gave his statement in the presence of his lawyer, stating that his rights were respected.

Subsequently, due to financial constraints, Mr. Tovar Moreno had to waive his right to private counsel and was left without a public defender for a period after the appointed one passed away. This limited access to legal assistance was found to have violated his right to a fair trial, equality of arms and adequate time and means to prepare his defense and communicate with a lawyer under articles 14(1) and (3)(b) of the Covenant.

Moreover, it was submitted that, on the day of his arrest, the prosecution publicly identified him as the leader of a kidnapping gang and disseminated his image and personal data online before any judicial proceedings. The Working Group highlighted the importance of independent and impartial investigations and activities related to the prosecution of crimes, as an effective means of ensuring access to justice, as guaranteed by articles 10 and 11 of the Universal Declaration of Human Rights. It identified the presented actions as a violation of the principle of presumption of innocence under article 14(2) of the Covenant as the Government did not contest this claim.

Despite multiple legal remedies pursued by Mr. Tovar Moreno, it was supported that the courts failed to review the legality of his detention, and even ignored the Constitutional Court’s recommendation. In light of those facts, the Working Group found this failure to have breached his right to have his conviction and sentence reviewed under article 14(5) of the Covenant. 

The WGAD determined that the cumulative violations of his right to a fair and impartial trial were so serious that they rendered the detention arbitrary under Category III.

CONCLUSION OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Juan Carlos Tovar Moreno was arbitrary and fell under categories I and III, because his deprivation of liberty was in contravention of articles 3, 8, 9, 10, and 11 of the Universal Declaration of Human Rights and the articles 9, 10 and 14 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Mexico take the steps necessary to remedy the situation of Mr. Juan Carlos Tovar Moreno without delay and bring it into conformity with relevant international norms, including those outlined in the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other forms of reparation, in accordance with international law.

Furthermore, the Working Group urged the Government to conduct a thorough and independent investigation into Mr. Tovar Moreno’s arbitrary detention and take appropriate measures against those responsible for violating his rights.