Informe No. 51/16

( ) (REPORT No. 51/16CASE 11.564ADMISSIBILITY AND MERITS REPORT (PUBLICATION)GILBERTO JIMNEZ HERNANDEZ ET AL (LA GRANDEZA)MEXICO) (Approved by the Commission at its at its session No. 2069 held on November 30, 2016.159th Regular Period of Sessions.) (IACHR, Report No. 51/16, Case 11.564. Merits. Gilberto Jimnez Hernndez et al (La Grandeza). Mxico. November 30, 2016.) (OEA/Ser.L/V/II.160Doc. XXXX xxx 2016Original: espaol) (www.cidh.org)

(www.cidh.org) (www.cidh.org) (www.cidh.org)

(OEA/Ser.L/V/II.159Doc. 6030 November 2016Original: Spanish)

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REPORT No. 51/16

CASE 11.564

ADMISSIBILITY AND MERITS (PUBLICATION)

GILBERTO JIMNEZ HERNANDEZ ET AL (LA GRANDEZA)

MEXICO

NOVEMBER 30, 2016

CONTENTS

I.SUMMARY1

II.PROCEEDINGS BEFORE THE IACHR1

III.POSITIONS OF THE PARTIES2

A.Petitioners Position2

B.States Position5

IV.ANALYSIS OF COMPETENCE AND ADMISSIBILITY6

A.Commissions Competence ratione personae, ratione loci, ratione materiae and ratione temporis6

B.Exhaustion of Domestic Remedies7

C.Timeliness of the Petition7

D.Duplication of Procedures and International res judicata8

E.Colorable Claim8

V.ANALYSIS OF THE MERITS8

A.Proven facts8

1.Context8

2.Events occurring on February 19 and 20, 199511

3.Investigation of events in the domestic arena18

B.Legal Analysis24

1.Right to life and the principle of equal treatment and non-discrimination (Article 4 of the American Convention in connection with Articles 1.1 and 2 of the same instrument)25

2.The right to a fair trial and judicial protection with regards to the investigations opened by the prosecutors offices into the death of Gilberto Jimnez Hernndez32

3.The right to a humane treatment with regard to the investigations by the prosecutors into the death of Gilberto Jimnez Hernndez to the detriment of his next of kin.40

VI.DEVELOPMENTS FOLLOWING THE ADOPTION OF REPORT No. 73/1541

VII.DEVELOPMENTS FOLLOWING THE ADOPTION OF REPORT NO. 34/1643

VIII.ANALYSIS OF COMPLIANCE WITH THE RECOMMENDATIONS44

IX.FINAL CONCLUSIONS AND RECOMMENDATIONS44

X.PUBLICATION45

1

REPORT No. 51/16

CASE 11.564

ADMISSIBILITY AND MERITS

GILBERTO JIMNEZ HERNANDEZ ET AL (LA GRANDEZA)

MEXICO[footnoteRef:2] [2: As provided in Article 17.2 of the Commissions Rules of Procedure, Mexican national Commission member Jos de Jess Orozco Henrquez did not take part in the discussion or the decision on the instant case.]

NOVEMBER 30, 2016

1. SUMMARY

1. On January 9, 1996, the Inter-American Commission on Human Rights (hereinafter the Inter-American Commission, the Commission or the IACHR) received a petition lodged by the Fray Bartolom de las Casas Human Rights Center and the Center for Justice and International Law (CEJIL) (hereinafter the petitioners) alleging international responsibility of the United Mexican States (hereinafter Mexico, the State or the Mexican State) for the alleged extrajudicial execution of Gilberto Jimnez Hernndez, a Tzeltal indigenous man and member of the La Grandeza Community.

2. According to the account in the petition, on February 20, 1995, officers of the Mexican Army extrajudicially executed the alleged victim as he was fleeing from military troops along with his family and other members of the La Grandeza ejido community in the Municipality of Altamirano, State of Chiapas, Mexico. The petitioners claimed that the crimes charged in this petition were investigated in the civilian federal and state jurisdiction, as well as in the military jurisdiction. They argued that, despite the investigations, the perpetrators of the crimes have gone unpunished. As for the requirement of prior exhaustion of domestic remedies, they claim the States argument is that the petitioners are required to accept the military jurisdiction as the suitable means to investigate the death of a civilian at the hands of a member of the armed forces.

3. In response, the Mexican State contended that the death of Gilberto Jimnez Hernndez came about as a result of a confrontation between members of the Zapatista National Liberation Army, an armed group to which the alleged victim belonged, and members of the Mexican Army. As for admissibility of the case, the State argued failure to exhaust available domestic remedies in the military jurisdiction, as well as remedies in the ordinary federal jurisdiction to question the proceedings before the military criminal courts, specifically with reference to amparo proceedings for enforcement of constitutionally guaranteed rights. Regarding the merits of the matter, the State claimed that it has fully met its obligations to respect and ensure the allegedly violated rights.

4. After examining the available information, the Commission ascertained that the admissibility requirements set forth in Articles 46 and 47 of the American Convention have been fulfilled and concluded that the State is responsible for the violation of the right to life, humane treatment, a fair trial, equal treatment and non-discrimination and judicial protection, as provided for in Articles 4.1, 5.1, 8.1, 24 and 25.1 of the American Convention, in connection with the obligations established in Articles 1.1 and 2 of the same instrument, to the detriment of the individuals listed in each section of the instant report.

1. PROCEEDINGS BEFORE THE IACHR

5. The initial petition was lodged on January 9, 1996 and was assigned the number 11.564. In a note of January 11, 1996, the IACHR forwarded the relevant portions of the petition to the State, requesting it to provide a response within a 90-day period, in keeping with the Rules of Procedure in force at the time. Following the IACHR granting of two extensions, the Mexican State filed its reply on May 16, 1996, which was duly forwarded to the petitioners. On October 17, 1996, the petitioners requested that Human Rights Watch Americas be included as co-petitioner in the case.

6. As the petition was undergoing processing, the petitioners submitted additional observations on July 8, 1996, April 24, 1997, October 6, 1997, September 20, 1999 and October 18, 2000. The State submitted information on August 30, 1996, October 6, 1997 and November 1, 1999. These briefs were duly forwarded to each party.

7. In a note of December 2, 2002, the IACHR conveyed to the parties its decision to postpone addressing admissibility of the petition until the discussion and decision on the merits of the matter, as provided for under Article 37.3 of the Rules of Procedure in effect at the time. On that date, the IACHR gave the petitioners a period of two months to submit their arguments on the merits. It also gave the parties the same period of time to express their interest in pursuing the friendly settlement process.

8. On November 30, 2005, the petitioners submitted those observations, which were properly forwarded to the State, which was given a period of two months, in keeping with Article 38.1 of the Rules of Procedure in force at the time, to submit its observations on the merits. After being granted an extension, the Mexican State submitted its observations on the merits of the case on April 3, 2006.

9. Subsequently, the petitioners provided additional information on August 14, 2008, September 15, 2008, May 4, 2009 and November 16, 2011. While the State submitted additional information on April 10, 2006, January 27, 2009 and June 22, 2009. These briefs were appropriately forwarded to the opposing party.

10. As the case was being processed before the Commission, two public hearings were held. The first one took place on October 6, 1997, during the 97th Regular Session of the IACHR. The second hearing was held on October 17, 2005, on the occasion of the 123rd Regular Session of the IACHR.

1. POSITIONS OF THE PARTIES

1. Petitioners Position

11. The petitioners alleged extrajudicial execution of Gilberto Jimnez Hernndez, a Tzeltal indigenous man, by agents of the military forces of the Mexican State, on February 20, 1995 at the ejido community of La Grandeza, Municipality of Altamirano, State of Chiapas, Mexico.

12. By way of context, they contended that beginning in the early 1980s, human rights violations had been documented in Chiapas and, in 1994, an armed conflict broke out in that state. They claimed that on January 1, 1994, hundreds of individuals belonging to the Zapatista National Liberation Army (hereinafter the EZLN) took over public buildings and offices in several municipalities of Chiapas in order to claim their rights. They noted that, as of that date, the presence of the Mexican National Army significantly increased and that the 1994 Chiapas Campaign Plan, designed by the Secretariat of National Defense in 1994, laid out the objectives of the military intervention: to destroy and break up the military political structure of the EZLN. They reported that the Federal Government ordered a massive incursion into Chiapas against the EZLN and the Army went into more than thirty communities of the region. They alleged that arbitrary detentions, torture, due process violations, wrongful raids of private property, destruction of property, among other human rights violations, were committed during these operations.

13. The petitioners claimed that Gilberto Jimnez Hernndez was executed in this context. Specifically, they recounted that on February 19, 1995, the word went around in the La Grandeza community alerting the residents that a unit of nearly 500 troops was about to arrive. They contended that several families