Report No. 14 (2018) IACHR. Petition No. 1057-07 (México)

• Year: 2018
• Petition Number: 1057-07
• Report Number: 14
• Respondent State: México
• Case Type: Admissibility
• Court: Inter-American Comission of Human Rights
• Alleged Victim: Thelmo Reyes Palacios

REPORT No. 14/18

PETITION 1057-07

REPORT ON ADMISSIBILITY

THELMO REYES PALACIOS

MEXICO

OEA/Ser.L/V/II.167

Doc. 18

24 February 2018

Original: Spanish

Approved by the Commission at its session No. 2115 held on February 24, 2018.
167^th Special Period of Sessions.

Cite as: IACHR, Report No. 14/18. A.. T.R.P.. M..

February 24, 2018.

www.cidh.org

I. INFORMATION ABOUT THE PETITION

Petitioner:	Melisa Otero R., E.O.R. and N.R.P.
:	Thelmo R. Palacios
S. denounced:	M.1
Rights invoked:	Articles 7 (personal liberty), 8 (fair trial) and 25 (judicial protection) of the American Convention on Human Rights2

II. PROCEEDINGS BEFORE THE IACHR³

Filing of the petition:	August 12, 2007
Additional information received at the stage of initial review:	October 3 and 16 and December 21, 2007; M.6.a.M. 21, 2008; December 16, 2011
N. of the petition to the S.:	May 10, 2013
S.’s first response:	J. 17, 2013
Additional observations from the petitioner:	J. 3 and September 6, 2013; May 11, 2015
Additional observations from the S.:	November 20, 2013; September 1, 2015

III. COMPETENCE

Competence Ratione personae:	Y.
Competence Ratione loci:	Y.
Competence Ratione temporis:	Y.
Competence Ratione materiae:	Y.; American Convention (deposit of ratification instrument on March 24, 1981)

IV. DUPLICATION OF PROCEDURES AND INTERNATIONAL RES JUDICATA, COLORABLE CLAIM, EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

Duplication of procedures and International res judicata:	No
Rights declared admissible	Articles 7 (personal liberty), 8 (fair trial) and 25 (judicial protection) of the American Convention, in connection with its Articles 1.1 and 2
Exhaustion of domestic remedies or applicability of an exception to the rule:	Y., September 12, 2011
Timeliness of the petition:	Y., under the terms of Section VI

V. ALLEGED FACTS

1. The petitioners claim that on April 5, 2005, in the city of N., Mr. T.R.P. (“the alleged victim”), a P. national, was arrested without a warrant by judicial police officers of the S. of Sonora, who unlawfully held him in incommunicado detention for three days. T. assert that later he was taken in a private car to a police station in the city of Hermosillo, where he was held incommunicado for another three days and without legal or consular assistance. T. also affirm that he had his hair and his moustache cut and was made up so his appearance would match the identikit picture of a homicide suspect. T. indicate that later, under a restriction of preventive custody (arraigo), he was taken into a private building (PITIC Hotel), where he was held handcuffed and incommunicado for 20 days.

2. T. submit that once his detention was made official, M.R. was taken to prison (CERESO No. 1-Hermosillo), and his lawyer was notified that the alleged victim was accused of homicide, and that on April 19, 2005, the alleged victim was brought before the Third Judge of the Criminal Court of First Instance of Hermosillo. T. indicate that a criminal proceeding was filed and that it had several shortcomings, particularly the lack of assessment of the exculpatory evidence, such as the absence of the alleged victim’s fingerprints at the crime scene or the witness statements indicating his being out of the city on the date the homicide occurred, as well as the existence of unlawfully collected untrue and contradictory evidence. T. assert that the police investigation lodged against the alleged victim was based on an anonymous telephone call that was impossible to controvert in the trial, as it had not been certified. And in general terms, without providing any details on the circumstances or those responsible, they claim that the alleged victim was publicly depicted as the perpetrator of the homicide of M.A.G. even before his conviction.

3. The petitioners indicate that on J. 13, 2007 the T.J. convicted Mr. R. to 25 years’ confinement and, after an appeal was filed, the First Civil and Criminal Chamber of the Superior Court of Justice raised the punishment to 28 years in prison. The Court decided that the evidence was duly and impartially assessed. T. assert that to challenge the trial and appeal courts’ resolutions, they lodged direct amparo proceedings, but these were dismissed. Finally, they filed an appeal for the review of the amparo proceeding, but on September 12, 2011 it was rejected. T. submit that on November 2, 2012 the Head Office of the Social Rehabilitation Center released the alleged victim based on his having served his conviction. To conclude, they indicate that the threats to the alleged victim’s liberty persist and that this is evidenced by the S. representatives’ strategy of informing the IACHR that the alleged victim escaped, which they controvert by submitting information referred to as the official documents of his release.

4. For its part, the S. indicates that Mr. R. was assisted by his private legal representatives all throughout the criminal proceeding, that he was never held in incommunicado detention and that his right to due process was always respected. It also claims that the alleged victim was able to resort to any remedy to appeal against decisions, and that his claims were timely heard by courts other than the judge presiding his case. It asserts that Mr. R. intends to have the Commission work as a fourth-instance body because of the unfavorable judgments issued by the M. courts.

5. L., it claims that Mr. R. was imprisoned on April 18, 2005 and sentenced to 28 years, 1 month and 15 days in prison, charged with the perpetration of homicide. In addition, it claims that on November 2, 2012 the alleged victim “escaped from prison by presenting false documents,” as he served only 7 years, 6 months and 14 of his term; therefore, now he is a fugitive. M., it indicates that the alleged victim’s allegation that the S.’s report about his being on the loose establishes a violation of his right to liberty is manifestly groundless. It submits that Mr. R. seeks to benefit from the unlawful act of evading justice. In this regard, it indicates that he did not exhaust domestic remedies.

VI. ANALYSIS OF EXHAUSTION OF DOMESTIC REMEDIES AND TIMELINESS OF THE PETITION

6. In the instant petition two allegations are presented. On the one hand, the alleged victim’s purported unlawful detention, incommunicado detention without judicial supervision and access to counsel; on the other hand, the alleged violations of criminal due process.

7. As to the first set of allegations, that is to say, the alleged victim’s purported unlawful detention and incommunicado detention , allegedly taking place from April 5 to April 18, 2005, when the T.J. of of the Criminal Court of First Instance notified the arrest warrant against him. Based on the available information, the police officers transferred the alleged victim from N. to Hermosillo on April 9, 2005, although there is no information about the date or the circumstances of the arrest in N.. According to the alleged victim’s statement before the Prosecutor’s Office on April 9, 2005, a provisional injunction order was issued for his arrest at PITIC Hotel, where he was placed in custody until he was notified of the arrest warrant against him. In view of said order, he was taken to the S.’s Social Rehabilitation Center on April 18, 2005, and appeared in court for his preliminary examination statement on April 19, 2005. Concerning this aspect, the S. did not submit any allegations about the exhaustion of domestic remedies.

8. In view of the foregoing and for the purpose of admissibility, the Commission prima facie believes that the authorities were aware of the events reported by the alleged victim from the time of his detention on April 5, 2005, allegedly without a judicial warrant, after which he was held in custody until April 18, 2005. Therefore, the Commission deems appropriate to apply the exception set forth in Article 46.2.b of the Convention. The substantive analysis of the factors allegedly impeding the...