determine and issue, as soon as possible, the corresponding judgment within the
preliminary investigation on the alleged acts of torture. 97
76.
In response to the CNDH’s recommendations, the PGJM launched another
Preliminary Inquiry on September 29, 2000 to investigate the allegations of
torture, prolonged detention and other crimes. On November 3, 2001, the Military
Prosecutor decided to refer the inquiry to the PGMJ “proposing that no criminal
action be brought and that the inquiry be definitively closed, with the exceptions
that the law provides,” on the grounds that the investigation did not find that acts
of torture were committed against Mr. Cabrera and Mr. Montiel. 98
2. Alleged violation of the right to personal security
77.
The representatives argued “that the right to personal security, which is
closely related to personal liberty, has a specific content” inasmuch as it “creates a
favorable and adequate environment for the peaceful coexistence of people.”
According to the representatives, “[w]hile subsections 2 to 7 of the aforementioned
Article 7 constitu[te] specific guarantees that establish guidelines regarding how an
individual may be validly deprived of liberty, the right to security protec[ts] the
conditions under which physical liberty is ensured, or is free of threats.” In this
respect, the representatives stated that “the role played by the Army in public
security tasks […] fostered an environment contrary to an effective protection of
human rights.” The representatives therefore argued that “the manner in which the
Mexican Army operated in Guerrero at the time of the events of this case, implied a
State action or policy that created a risk to the physical liberty [of the alleged]
victims, […] infringing both Articles 1(1) and 7(1) of the American Convention.”
78.
The Commission and the State did not submit arguments regarding the
violation of the right to personal security. Nevertheless, the State argued that the
armed forces’ participation in the comprehensive security strategy is supported by
the Mexican legal framework, which has determined that “this participation is
subsidiary, temporary and only upon request of the civil authorities,” so as to
“prevent, discourage, investigate, and prosecute high-impact crimes such as drug
trafficking, organized crime and the use of heavy firearms.”
79.
The Court recalls that, with regard to Article 7 of the American Convention,
it has reiterated that it contains two types of well-differentiated provisions, one
general and one specific. The general provision is contained in the first
subparagraph: “[e]very person has the right to personal liberty and security.”
Meanwhile, the specific provision consists of a number of guarantees that protect
the right not to be deprived of liberty unlawfully (Art. 7(2)) or in an arbitrary
manner (Art. 7(3)), to be informed of the reasons for the detention and the
charges brought against him (Art. 7(4)), to judicial control of the deprivation of
liberty (Art. 7(5)), and to contest the lawfulness of the arrest (Art. 7(6)). 99 Any
97
Cf. CNDH. Recommendation N° 8/2000 of July 14, 2000, supra note 89, page 8459.
98
Cf. Order issued on November 3, 2001 by the First Investigating Agent of the Office of the
Public Prosecutor for Military Justice for the Area of Preliminary Inquiries of the Attorney General’s Office
for Military Justice (File of attachments to the application, volume XIX, annex 11, pages 8181 to 8367).
99
Cf. Case of Chaparro Álvarez and Lapo Íñiguez. v. Ecuador. Preliminary Objections, Merits,
Reparations and Costs. Judgment of November 21, 2007. Series C N° 170, para. 51; Case of Yvon
Neptune v. Haiti, supra note 49, para 89; Case of Usón Ramírez v. Venezuela. Preliminary Objection,
Merits, Reparations and Costs. Judgment of November 20, 2009. Series C N° 207, para. 143.
30