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Positioning on the need to legislate a General Law on the Prevention, Punishment and Eradication of Forced Disappearance of Persons by the National Campaign Against Forced Disappearance

Saturday 30 May 2015, by Comité Cerezo México

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Mexico City

May 30th, 2015

As members of the National Campaign Against Forced Disappearances in Mexico, drivers from four years of the necessity of a general law against forced disappearance ago, we externalize our positioning around the initiatives presented by various political parties in the Chamber of Deputies, with the intention to pay the drafting of a General law on the Prevention, Punishment and Eradication of Forced Disappearance of Persons in accordance with international standards.

Because the United Nations in its comments on Mexico and the interdisciplinary group of the Inter-American Commission on Human Rights with its comments to the Ayotzinapa case indicated that enforced disappearances committed so widespread in Mexico , it is necessary to recognize that the forced disappearance of persons is not an a criminal offense, but a violation of human rights and a crime against humanity that violates not only against the direct victims but against the general population and which is committed by the state itself, who becomes violator of their own legal systems and international frameworks to not ensure respect for the fundamental rights of human beings.

It is noteworthy that the requirement of families and organizations to legislate a comprehensive law on forced disappearance of persons has more than 15 years without being heard. Several governments have passed and unfortunately this violations of human rights remains unpunished despite the fact that Mexico ratified the Inter-American Convention on Forced Disappearance of Persons on April 9, 2002 and the International Convention for the Protection of All Persons from Enforced Disappearances 18 March 2008.

Unfortunately, our voices were not heard and has been so far, to the disappearance of the 43 students of the Normal Rural School "Raúl Isidro Burgos" Ayotzinapa, Guerrero in September 26, 2014, we see interest of various parliamentary groups from both the Chamber of Deputies and the Senate and now the Executive to legislate a comprehensive law on Forced Disappearance of Persons. Given this, the members of the National Campaign Against Forced Disappearance of Persons welcome, if belated, the decision of the House of Representatives to promote the legislation of a law on enforced disappearance. Also we consider extremely important that these proposals include the feeling and knowledge of human rights organizations and relatives of victims of enforced disappearance have been demanding for years that demand. Therefore we make public our observations to these initiatives.

1. Why a general and not a federal law?

We believe that the most urgent and necessary given the conditions of the country, is to legislate a comprehensive law on forced disappearance of persons as they have been recommending since 2011 the Working Group on Forced Disappearance of Persons and currently the Committee Against Forced Disappearance of UN.
A General Law on Forced Disappearance of Persons, unlike federal law, imply harmonization at the local and federal level this crime, that is, there would be a criminal offense unified enforced disappearance provided in a single General Law Enforcement binding on the federal, state or municipal jurisdiction; which would give certainty and security to the population and in particular the victims of enforced disappearance and to establish concurrent duties and powers to the authorities of the three levels of government to prevent, punish, investigate, prosecute, prosecute and eliminate crimes forced disappearances since the events of this nature are criminal in any part of the republic.

2. Why a General Law on Enforced Disappearances and not a General Law on the Disappearance of Persons?

From the time of the "dirty war", the Mexican State has used the enforced disappearance of persons as a way to inhibit and contain social unrest in the country. Moreover, since the past six years, this form of serious human rights violation has been used as a way to control the population, which has put thousands of families in a relentless search for their loved ones, as well as the need to know the truth and obtain justice.

But the Mexican government, mainly since the return to power of the party that ruled Mexico for over 70 years, the same responsible for the forced disappearances of the 60’s, 70’s and 80’s, now under scrutiny by various International bodies, following the disappearance of the 43 students of the Normal Rural "Isidro Burgos" Ayotzinapa, Guerrero, has refused to accept that in our country enforced disappearances continue to occur, and worse, cases of forced disappearance manage them as isolated events, which are the sole responsibility of the states or of some policemen, "co-opted by organized crime" to distance himself from responsibility.

Therefore, National Campaign Against Forced Disappearances in Mexico it seems worrying that exists within the discussion of the legislation, the term "forced" disappear within the proposals; whereas, with this crime, which according to international standards, is the direct responsibility of the State structure by the ways in which it is committed and active participation of state agents is invisible. Similarly, we believe that a way to force the State to recognize the existence of this crime, even today, is putting the name of the General Law "forced disappearance".

Thus is not to get out of the General Law mode disappearances committed by individuals, where the State is only responsible for its omission in the search, investigation and punishment of those responsible for committing this crime.

The initiative of General Law (we suggest) must have a suitable description of the crime of forced disappearance of persons as established by international treaties, and we believe that the most consistent definition is established in the International Convention for the Protection of All the Persons from Enforced in Article 2 and 3:

Commits the offense of forced disappearance of persons the agent of the state or public official who arrests, detains, kidnap or deprive of freedom to one or more persons or orders, authorizes, supports, consents, or tolerate others to do so, followed by the refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person outside the protection of the law.
Understanding how state agent to anyone who belongs to the very structure of this, whether members of the armed forces, municipal police, state, federal, members of the national gendarmerie, including the same representative of the executive and as a public servant to referred to in Article 108 of the Constitution. Similarly, it should not matter hierarchy or rank to which it belongs within the state structure.

It also commits the crime of disappearance the individual acting without the authorization, support or acquiescence of the State deprived of liberty to one or more persons, whatever its form, followed by the lack of information or the refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of the person. Being stewards all those agents who default not fulfill their duty to seek, investigate and punish this crime.

By including both the general law enforced disappearance as a missing persons clearly conceptualized ensures that the state is not exempt from its responsibility to investigate, prosecute, and punish both cases, whereby the victims, relatives and citizens will be protected.

Similarly to ensure that they adequately define the crime of forced disappearance of persons in the Federal Penal Code is considered important to take the proposal of Deputy Jose Luis Esquivel Zalpa, when it refers to "steal the crime of forced disappearance of persons The title concerning crimes committed by public servants, from where they are now formally inserts Articles 215 A, 215 B, 215 C, 216 D, for inclusion in the third title of the second book of the Federal Penal Code, concerning crimes against humanity, in order to: 1) To clarify the applicability of this crime, considering it as a crime against humanity; 2) Modify the crime, since the Mexican federal law now makes it a requirement that this unjust penalty is committed by public servants leaving out of it to individuals acting with sponsorship, permission or acquiescence of the state so committed; 3) Modify the current penalties, even making them so serious that inhibit the commission of this crime and become an instrument of defense of human rights ".

4. Effective and Immediate Search for Missing Persons

As an essential point, a general law should have a protocol effective and immediate search for victims of enforced disappearance and missing persons, protocols that are activated immediately to the search and discovery of the missing as soon as have news that the incident occurred regardless of who or who is presumed to have participated directly in the disappearance.

Likewise, the law should establish the obligations of the federal and state authorities to implement this mechanism efficient and immediate search throughout the Republic. It should establish guidelines for international cooperation in the search and location of missing persons with neighboring countries in the North and the South, and even with the other Central American countries through a cooperation agreement. It is important the location of the missing alive, for which immediate action is required. It is also important to mention that the General Law on Victims speak of a search mechanism, contained in article 21, which will have to coordinate and establish criteria on how to implement and work with the law of enforced disappearance avoid duplication of efforts.

To perform an immediate search of missing persons should create a separate and independent unit to ensure that all units activated the urgent search mechanisms in all institutions of the republic to local, state and federal level and is notified when if the National Human Rights Commission and State Human Rights Commissions to serve as observers, to monitor and accompany the search required.

5. National Registry of victims of enforced disappearance, disappearances and database of genetic information (DNA Bank)

The general law should provide for the creation of a national public register of persons forcibly disappeared and missing people- whose design, implementation and monitoring with the participation of families and organizations - so that you have obtained statistical control reliable and transparent to properly classify the offense concerned (forced disappearance or missing persons).

This National Register shall be independent to the record you have currently which is the National Registry of Persons not localized, missing, or lost that does not include the victims of enforced disappearance and not properly recorded victims of disappearance are committed by individuals.

Furthermore, this law must have the implementation of a specialized, independent and impartial body responsible for safeguarding the DNA data from family to search for the missing alive and remains localized for the comparison with samples DNA from family members who give their consent to give their genetic samples, so that they can access this identification procedure with full confidence.

We also consider it important that a general law must empower the creation of an Official Register of Detainees, in order that the Attorney General’s Office, the Secretariat of National Defense, the Navy, the Federal Police and any other institution Public Safety, bear an official and updated registration of detainees, which upon request shall be made promptly available to any judicial authority or any other authority or competent institution. In order to know about the people who are deprived of their liberty in any form of shelter, detention or arrest, and the place in which they are physically, and that this could provide for not bringing people to the appropriate bodies and thereby prevent these may be missing.

6. The Registry will have at least the following information:

a) The identity of the detainee;
b) The date, time and place where the person was deprived of liberty and the authority that the deprivation of liberty;
c) The authority that ordered the deprivation of liberty and the reasons for it;
d) The authority controlling the deprivation of liberty;
e) The place of deprivation of liberty, the date and time of admission to the same and the authority responsible for the place;
f) Elements regarding the physical integrity of the detainee;
g) In case of death during the deprivation of liberty, the circumstances and cause of death and the destination of the remains of the deceased;
h) The date and time of release or transfer to another place of detention, the destination and the authority responsible for the transfer.

6. Research and right contribution of victims

We consider it important that a general law should include clearly the figure of contribute relatives or representatives in the investigations, either individually (directly by the relatives of the victim) or collectively (either by relatives and human rights defenders recognized by them). So they can access them easily to investigations. And the integration of a fund to support the contribute allowing family members and their organizations to intervene appropriately without affecting their heritage and without this being a limiting factor for impunity.

7. Sanctions and penalties to the material and intellectual authors of the crime of forced disappearance

This law should clearly contain penalties for those who commit the crimes of forced disappearance of persons and disappearance, taking into account that such penalties should not be viewed as a misdemeanor. For this we return to the proposal made by Representative José Luis Esquivel Zalpa, with regard to Chapter III of enforced disappearance and Articles 149 to 149 bis A bis H. contemplating reform of the Federal Penal Code to adequately punish the crime of forced disappearance and disappearances.

"Anyone committing the crime of forced disappearance of persons shall be imposed a penalty of forty to sixty years in prison and a fine of 30000-50000 daily minimum wage in the Federal District, in addition to the dismissal and permanent disqualification to exercise office, employment or commission in the federal government, states, Federal District, municipalities and administrative territorial boundaries of the Federal District.

Furthermore, this law should contain a special chapter to specify that, under no circumstances, those responsible for committing the crime of forced disappearance of persons may be protected under military jurisdiction when they are involved in this crime elements of the military forces.

For this it is necessary to emphasize compliance removing the military courts for cases of enforced disappearances. And that this offense is continuous and imprescriptible nature. In addition you will need to recognize the responsibility of superiors as a form of criminal responsibility.

8. Declaration of absence

General law must be clear and easily with a special section on the declaration of absence due to forced disappearance of persons and disappearance, in order that the right of families to ensure access to resources or assets of the missing person and that dependents are not left homeless.

9. From Damage Reparation

The general law must consider the integral reparation understanding this is integral terms, not just financial compensation. Repair involves taking concrete and effective measures to protect the right to truth and justice for the families as well as the obligation of the State to change the structures that allowed the commission and achievement of this crime.

Finally, we note that the alarming situation we are living in the country, the Mexican State should comply with the recommendations made in enforced disappearances, including that of lawmaking shortly the General law on forced disappearance of persons.

The real political will should translate into facts do everything necessary to make this law a reality to prevent, punish and eradicate Forced Disappearance of Persons.
At this publicly call on the Senate and Chamber of Deputies to work together to take forward a proposed General Law on Forced Disappearance of Persons contemplating the above observations, so that a comprehensive law as may legislate.

National Campaign Against Forced Disappearance

Contact: desaparecidos.presentacion@gmail.com
10. [1] Ver recomendaciones del Comité Contra la Desapariciones Forzadas de la ONU a México en: http://tbinternet.ohchr.org/Treatie...
11. [2] Ver en: http://www.animalpolitico.com/2015/...
12. [3] Tomado de la Iniciativa que reforma, adiciona y deroga diversas disposiciones del Código Penal Federal, a cargo del diputado José Luis Esquivel Zalpa, del Grupo Parlamentario del PRD presentada el 11 de diciembre de 2014.
13. [4] Tomado de la iniciativa de Ley Federal para la Protección de las Personas contra las Desapariciones Forzadas, a cargo de la diputada María del Carmen Martínez Santillán, del Grupo Parlamentario del PT presentada el a 11 de diciembre de 2013.

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