Litigating Human Rights
March 5, 2020 | Grantee Stories | Human Rights

Human rights lawyers in Mexico hold military officials accountable through international litigation, constitutional court reforms, and implementing new legal argument techniques.


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Armed men in Mexican military uniforms came to Paola Alvarado’s door in late 2009. They led her mother and uncle away, without explanation. Neither they nor Paola’s cousin, who was later picked up, were heard from again.

It was a time when the military was engaged in an escalating confrontation with drug cartels in rural Chihuahua state, and soldiers were suspected of cooperating with the criminals. Under Mexico’s previous justice system, civil authorities were limited in investigating the military, typically meaning they collected no evidence and interrogated no witnesses.

“The police and other authorities denied that they even had any information about the case we were talking about,” Alvarado said. “It was a terrible experience.”

The Alvarado family’s saga, all too common in Mexico, underscores what is at stake as the country transforms its criminal justice system. Long based on the inquisitorial system, with its written testimony and presumption of guilt, in 2008 a constitutional reform was passed to move Mexico to an adversarial system, with oral court testimony, cross examinations, courtroom verdicts, and a presumption of innocence.

The Alvarado case gave human rights attorneys a chance to demonstrate a more effective pursuit of justice. Lawyers took the case to the InterAmerican Court of Human Rights in Costa Rica, where they employed new techniques in litigating cases they learned as part of judicial reforms taking root in Mexico over the last decade.  

 

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Alvarado family and friends gather at the InterAmerican Court of Human Rights in San Jose, Costa Rica.


Lawyers for the Women’s Center for Human Rights, or CEDEHM, successfully used oral testimony and new evidence-presentation skills that they helped introduce in Chihuahua in 2007. They were able to directly contest the Mexican government’s argument that the perpetrators were probably criminals dressed like soldiers by presenting contradictory evidence and showing a systematic pattern of military abuse.

In 2018, the InterAmerican court ruled in favor of the Alvarados, holding the military accountable. The Mexican government accepted the ruling. As a result, the mandated criminal cases against the perpetrators are still making their way through the Mexican court system.

“An InterAmerican Court judgment on gross human rights violations will always order the State to investigate and punish the violations,” said Stephanie Erin Brewer, a human rights attorney with the Miguel Agustin Center for Human Rights.

One of the biggest goals is for victims and plaintiffs to feel empowered by taking ownership of their own legal process, receiving support from legal groups as needed.

And more broadly, the Alvarado case established binding case law that provides Mexican courts with established decision making in how to deliver justice to its citizens in similar cases.

The reforms have been introduced in individual states over the last decade, with Chihuahua among the first. The last state, Michoacán, to take on the new system did so on the 2016 deadline set by the Constitution. 

One of the biggest goals is for victims and plaintiffs to feel empowered by taking ownership of their own legal process, receiving support from legal groups as needed.

“The victims get legal training so that they know what the process is, how these oral trials function, and what their role in it will be,” said Lucha Castro, the founder of CEDEHM and the lead attorney in the Alvarado case.

 

A march in Chihuahua commemorating the disappearance of thousands of Mexican citizens.

 

The new system offers clients and attorneys the chance to share their story in court, before judges who are in the same room. For the first time, judges are being asked to raise questions and ferret out the truth, rather than reviewing written documents away from public view in a private office.

Under the old system, prosecutors collect evidence—rather than the police—even though their job is to try a case for a given outcome. Court typists had inordinate power to revise testimonies, and courtroom cross-examination of witnesses was not possible. 

“We have judges that are now present, and we have much better transcripts, because now all the proceedings are videotaped.”

Attorneys say it is a huge psychological victory for clients to even be in the same room where powerful Mexican authorities, such as military officers, are being held responsible for their behavior.

“We have judges that are now present, and we have much better transcripts, because now all the proceedings are videotaped,” said Layda Negrete, a researcher at the World Justice Project. “Family members and interested parties can now sit and actually understand much better what is going on. This brings a lot of transparency.”

Civil society groups have been helping prepare lawyers, judges, and clients on how to build a case under the new approach. They are also studying how the new oral approach and introduction of evidence can be the basis for building a legal theory.

And it has led to some precedents. One of them was a case in Guerrero state, where lawyers represented an indigenous woman, Valentina Rosendo Cantú, who said she had been raped in 2002 by members of the Mexican military.

 

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Valentina Rosendo Cantú at the InterAmerican Court in San Jose, Costa Rica where her case was tried in 2010.

 

The lawyers introduced expert witnesses to talk about rape and the impact it had on her and her community. Abel Barrera, founder of the Tlachinollan Human Rights Center, says the testimony was key in explaining why it was important that the military used rape as a way to intentionally undermine an ethnic minority—in this case, the target was Me’Phaa, one of Guerrero’s four main indigenous groups.

“We used an anthropologist to explain how sacred women are in the community and the feeling of solidarity between women,” Barrera said. “This picture of how their community operates was key in understanding the profound damage from such an attack.”

Like the Alvarados, lawyers took Rosendo’s case to the InterAmerican Court of Human Rights, where two military officers were found guilty of raping her in 2002. The case went back to the Mexican courts, where the same evidence was introduced. 

“More and more women are finding their voice. They are starting to recognize their rights and ensure they are not mistreated.”

In 2018, 16 years after the attack, a Mexican court ruled in her favor—one of the first cases of its kind to use testimony from the victim to hold military officers guilty of a sexual attack on an indigenous citizen. The court sentenced the officers to 19 years in prison.

For Rosendo, the experience at court was validating. The judge was able to ask a series of follow up questions about her attack, which was critical because the poor initial police response did not include the collection of any medical evidence.

Rosendo says the verdict has been psychologically transformative for the women in her community.

“More and more women are finding their voice,” she said. “They are starting to recognize their rights and ensure they are not mistreated.”

Yet many challenges remain for transforming Mexico’s criminal justice system, and advocates are focused on the reforms that are still needed.

Human rights experts worry about weaknesses in the system even before cases make it to trial, such as low standards for collecting evidence at a crime scene and continuing concerns about the use of torture to procure confessions.

There are thousands of cases like the Alvarados’ and Rosendo’s that still are being handled under the old system, making them less visible to media and other watchdogs and easier for the authorities to ignore.

“We still don’t know anything about our family,” Alvarado said. “They are still not investigating the military personnel that ordered this. We have advanced a lot in this case, but we have not won many things.”

 


MacArthur has provided $1,035,000 in support to Centro de Derechos Humanos de las Mujeres since 2011.

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