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Monday, February 22, 2016

Mexico Drug War-Guerrero: Nestora Salgado, the UN and State Attorney General Olea



Community Police demand Nestora Salgado's Release From Prison.
Photo: Hugo Cruz

Proceso: Marta Lamas*

Early in February, Thomas Antkowiak, director of the International Human Rights Clinic and Program on Latin America, both at the University of Seattle, received a letter from the UN Working Group on Arbitrary Detention. The letter transmitted Resolution No. 56/2015 regarding the case of Nestora Salgado, approved at its 74th Session (November 30-December 4, 2015).

In an attached document, seven single-spaced pages, issues relating to the arbitrary detention of Commander Nestora are specified. At the outset, five circumstances are established by which the Group considers the detention arbitrary:
"a) When it is clearly impossible to invoke any legal justification (like keeping a person in detention after having served the sentence or despite an applicable amnesty law) (Category I). 
"b) When deprivation of liberty results from the exercise of the rights or freedoms guaranteed by Articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, for State Parties, by Articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II). 
"c) When the breach, all or in part, of international standards relating to the right to a fair judicial proceeding, set forth in the Universal Declaration of Human Rights and in relevant international instruments accepted by interested States, is of such gravity as to confer an arbitrary character to the deprivation of liberty (Category III). 
"d) When asylum seekers, immigrants or refugees are subject to prolonged administrative detention without possibility of examination, or administrative or judicial appeal (Category IV).
"E) When the deprivation of liberty constitutes a violation of international law because it deals with discrimination for reasons of birth, national, ethnic or social origin, language, religion, economic status, political or other opinion, gender, sexual orientation, disability or other condition, and leads or can lead to ignoring the principle of the equality of human beings (Category V)."
The document states that Nestora was arrested by Marines and Mexican soldiers and that
"the army arresting civilians for alleged crimes when national security is not at risk is reason for concern by the Working Group in view of the danger that civilians face in such a situation."
It is also recognized that the federal government dismissed the case against Nestora, so she is no longer in federal custody, but the Guerrero State Attorney General brought new charges against her. Finally, the deliberations of the Working Group, which, among other things, note that the ongoing criminal case against Nestora remains grounded on the same events, when the federal courts have already acquitted her—which it [Working Group] describes as "perplexing"—and notes that
"it violates the right not to be tried twice for the same events."
In addition, in violation of the fair trial principles and timely processing, for one year Nestora neither had access to a lawyer nor was she presented before any court or tribunal. There are other comments, such as that although she showed her United States passport, this was ignored and no notice was given to the U.S. Consulate. Therefore, the "decision" of the Working Group was to issue the following opinion:
"The Working Group concludes that the arrest and subsequent detention of Ms. Nestora Salgado falls within Categories I, II and III of those applicable to consideration of cases submitted to the Working Group."
Finally,
"consistent with the opinion rendered, the Working Group requests the Government of Mexico to take the necessary measure for remedying the situation, freeing Ms. Salgado and providing her with appropriate compensation."
In addition, the Working Group refers Nestora's situation to the Special Rapporteur on the Situation of Human Rights Activists and to the Special Rapporteur on Torture and other Cruel or Degrading Punishment.

What will be the response of the Xavier Olea, the new Guerrero State Attorney General, in the face of this decisive opinion by the UN Working Group? With the change of government in Guerrero, it would appear that the possibility might open with the new Attorney General, unrelated to the previous nefarious groups, that he might review the case and withdraw [the charges]. Nestora already has more than two years imprisoned without a trial, and the alleged witnesses have never been to the hearings to which they have been summoned. It doesn't take much headscratching to detect the network of vengeful complicities that armed the "case" against her.

The UN decision has legal weight because, in the words of Zeid Ra'ad Al Hussein, High Commissioner for Human Rights, the set of treaties that make up international human rights law is binding, and [a State] cannot comply with one treaty and not another. Therefore, Mexico's authorities must take the necessary measures such that justice is done and Nestora Salgado is freed. Spanish original

*Marta Lamas Encabo (b. 1947, Mexico City), Mexican anthropologist and feminist, studied ethnology at the National School of Anthropology and History and obtained an MA in Anthropology from the National Autonomous University of Mexico (UNAM). She has been a member of editorial boards of UNAM and the Economic Culture Fund, a founding member of La Jornada and founder of the magazine "fem", the first feminist magazine in Mexico, director of the magazine "Feminist Debate" and a columnist for Proceso magazine and the Spanish newspaper El Pais. In 1992, she founded the Information Group on Reproductive Choice (GIRE), to promote sexual and reproductive rights. In 2000 she founded the Simone de Beauvoir Leadership Institute to train women in a gender perspective.

 For more on this story, see Nestora Salgado.

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