Published by Fern

www.greennet.org.uk/fern/

Urgent appeal

27 October 2000

Action needed at EU level: forest protectors, Rodolfo Montiel Flores and Teodoro Cabrera Garcia need to be released

In the middle of the night on 28 August, environmental activists Rodolfo Montiel Flores (45) and Teodoro Cabrera García (50) were notified that they had been convicted on the false charges for which they have been imprisoned since May 1999. Judge Maclovio Murillo Chávez, Fifth District Judge of Iguala, Guerrero, convicted Montiel and Cabrera for alleged weapons possession and marijuana cultivation. Montiel was sentenced to 6 years, 8 months; Cabrera was sentenced to 10 years. Amnesty International declared both men Prisoners of Conscience on 31 March 2000 and Rodolfo Montiel was awarded the Goldman Environmental Prize on 6 April 2000 in recognition of his efforts to prevent destructive logging operations in the Costa Grande region of Guerrero.

In response to uncontrolled logging in the Sierra de Petatlán mountain range, Montiel co-founded the Organization of Campesino Ecologists of the Sierra de Petatlán and Coyuca de Catalán (1998) to protect the area’s old-growth forests and prevent the widespread soil erosion that was endangering local farms. They call themselves farmer-ecologists. The Sierra de Petatlán, with mountains reaching nearly 10000 feet above sea level, contains some of North America’s most pristine forest-lands. When the forest is healthy trees capture rainwater and boost the water supply that farmers rely on for irrigation. As trees are cut down, there is less water and farmers have trouble growing crops. Seeing their land dry up, Montiel and others began to take action.

Months of successful non-violent demonstrations angered land owners, many of whom have close ties to the military and to corrupt government officials. Three members of the environmental organization had already been killed before 2 May 1999, when the Mexican Army illegally detained Montiel and Cabrera. On the day of the arrest, another farmer, Salomé Sánchez Ortiz was shot on the head and killed as he tried to run away from the soldiers storming into Pizotla.

After being held incommunicado for five days and suffering torture and death threats, Montiel and Cabrera were forced to sign false confessions. The Federal Attorney General denies the allegation of torture, although a Danish medical team confirmed it.

The health of both men is deteriorating. Montiel has complained of intense pain in his abdomen since being tortured and Cabrera had to undergo an operation because of severe beatings to his back he suffered during army detention. Prison conditions are bad and food is scarce. Furthermore Montiel has a wife and six children to maintain and Cabrera has a wife and a daughter. Montiel's family has twice been forced to flee their home because of threats and are now living in hiding.

The Human Rights Center in Mexico (PRODH) has filed an appeal against the conviction and sentencing.  The appeals judge was required to rule on the case by October 16, but a resolution is not expected until late 2000 or early 2001.

Now is the time that action is taken in Europe to ensure that justice will be done. In the US, over 50 members of the US Congress sent a letter to Judge Murillo urging him to make an impartial ruling on the case.  Many US NGOs, such as Sierra Club, the Goldman Foundation, and Amnesty International USA, have urged a range of Mexican officials, including President Zedillo, Judge Murillo, Federal Attorney General Madrazo, and appeals Judge Villa, to release Montiel and Cabrera.  In August, representatives of these NGOs met with President-Elect Fox and expressed their concern about the case.  On October 12 and 13, vigils were held in front of the Mexican Embassy and Consulates in over 15 US cities to demand the immediate and unconditional release of Montiel and Cabrera.

Action is now needed at the EU. The EU is Mexico’s second largest trading partner and EU Foreign Direct Investment to Mexico has increased by 252% bringing the EU’s share of total FDI to Mexico to 19%.

The co-operation agreements and contractual relations between the EU and Mexico have respect for human rights as their basis, as well as the principles of the rule of law and good governance and the proper implementation of the principles of sustainable development. It is clear that currently in Mexico none of this is implemented in a proper way.

We therefore would like to ask you to urge President-elect Fox

·         to recognize Montiel and Cabrera as Prisoners of Conscience and release them immediately and unconditionally once he takes office.

·         to guarantee the prisoners in Iguala jail their fundamental rights to food, medical service and dignified treatment.

·         to ensure that the soldiers responsible for the illegal detention and torture of Montiel and Cabrera are investigated and tried by civilian, not military, authorities, as required under Article 13 of the Mexican Constitution and various inter-governmental human rights instruments.

·         to order an investigation into the charges of torture by the Public Ministry rather than the military jurisdiction, and that those responsible be brought to justice.

·         To Take measures to conserve the remaining forests in the state of Guerrero

We would like to ask you to urge the European Commission to

·         Recognize the principles of respect for human rights, democratic principles and the rule of law, in the Economic Partnership, Political Co-ordination and Co-operation Agreement as well as the Interim Agreement on Trade and Trade related matters and take measures to ensure that the Mexican government upholds these principles.

·         To discuss these cases of violent human rights abuses with the Mexican Government at the highest level.

·         To not enter into any further trade agreements with Mexico until the Mexican Government has taken steps to release its prisoners of conscience and mitigate further human rights abuses.

·         To ensure that the Mexican Government takes adequate measures that the remaining forests in the state of Guerrero will be preserved.

BACKGROUND INFORMATION

I. The forests in Mexico and Guerrero

Greenpeace Mexico obtained information about deforestation in the past eight years in Petatlán and Coyuca de Catalán mountains in the state of Guerrero. This information confirms denunciations made since 1998 by the Organisation of Campesino Environmentalists.  The region has suffered extreme deforestation: nearly 40% of the forests have been lost in just 8 years. According to satellite images taken between 1992 and 2000 of 18 areas in the Petatlan and Coyuca de Catalan mountains, 86 000 ha of forests were lost from the 226 203 ha that existed in 1992. In other words 38% of the forests has been lost to the excessive and illegal logging.

In Mexico as a whole, half of the country's tropical and temperate forests have been lost in the past 40 years, and its last great reserves are under siege. The Lacandon jungle in Chiapas has been reduced from 5,000 square miles to less than 2,000, and loses another 125 square miles every year. In neighbouring Oaxaca, the untrammelled hardwood stands of the Chimilapas forests suffered irreparable damage from forest fires in 1998, of which 38 were deliberately set. And the oyamel firs that form the monarch butterfly sanctuaries in central Michoacán have been thinned to the point of extinction by surrounding ejidos.

Each year, Mexico loses 2,300 square miles of forest, states independent green Senator Adolfo Aguilar Zinser. The great-grandson of Mexico's first forestry secretary (he was known as the "apostle of the trees"), Zinser estimates that at the current rate of devastation, Mexico has only 54 years of forest resources left. Deforestation, he says, has caused the floods and mudslides that have taken more than a thousand lives in the past three years. "The destruction of our forests is a national crime."

II. Human Rights abuses acknowledged by the Mexican’s Governments National Human Rights Commission but no action taken.

The Mexican’s Government National human Rights Commission (CNDH) concluded that Human Rights violations were committed against Montiel and Cabrera. CNDH made the following conclusions:

The CNDH recommendation (8/2000) concludes that the environmentalists’ human rights were violated. They were illegally detained and tortured, and weapons and marijuana plants were planted on them. The CNDH found that Montiel and Cabrera were not in possession of weapons at the time of their arrest, nor did evidence exist linking them to the alleged cultivation of marijuana. The CNDH cited a letter written by the Commander of the 35th Military Zone in which he reported that the weapons were found during a search, not during the environmentalists’ arrest or detention. Likewise, the CNDH rejected the accusations of marijuana cultivation because the agent of the Public Ministry that was in the community of Pizotla during the environmentalists’ detention never verified the existence of marijuana plants.

Although the national newspaper La Jornada reported that the SEDENA (Secretariat of Defense) accepted the CNDH recommendations, it remains to be seen if the SEDENA will comply.  The CNDH has no power to ensure compliance with its recommendations, and as a result the military authorities generally do not fully comply. In this case, in accordance with the Federal Law to Prevent and Sanction Torture, those responsible for torture can be sentenced from three to twelve years in prison; they can also be charged with Abuse of Authority and Illegal Privation of Liberty, the sentences for which range from 2 to 9 and 20 to 40 years in prison, respectively. However, nothing has happened.

[LF2] During the trial, the lawyers for the defense provided ample evidence that the confessions had been obtained under torture. According to Article 8 of the Federal Law to Prevent and Sanction Torture, no confession obtained under torture can be used as evidence. In addition, the CNDH recommendation -- which concluded that the environmentalists had been tortured --should have been given full evidentiary value as an official government document, according to Articles 280 and 281 of the Federal Code of Criminal Procedures. Yet the Fifth District Judge did not take the CNDH recommendation into account at all in his ruling, basing the environmentalists' conviction only on their coerced confessions and the testimony of the soliders. The Fifth District Judge should have acquitted and immediately released Montiel and Cabrera, as there is no evidence that prove their guilt, as well as because they were tortured, illegally detained, and framed with planted weapons and marijuana plants. That did not happen and both were sentenced to prison.

In the first phases of the trial, the Fifth District Court of Guerrero refused to admit any evidence presented by defense attorneys from the Human Rights Center, Agustín Pro Juárez (PRODH). Lawyers from PRODH  requested that the federal attorney general investigate the case to evaluate allegations of torture and human rights abuses. Despite evidence to the contrary, the Mexican attorney general concluded that no human rights abuses occurred, and on June 26, 2000, submitted closing arguments to the court recommending maximum sentences for Montiel and  Cabrera. On August 28 Judge Maclovio Murillo Chávez, Fifth District Judge of Iguala, Guerrero, convicted Montiel and Cabrera for alleged weapons possession and marijuana cultivation. Montiel was sentenced to 6 years, 8 months; Cabrera was sentenced to 10 years.

In the wake of the convictions, Diego Zavala of Amnesty International said, “The Mexican authorities have demonstrated complete disregard for the human rights of these two men and sent a chilling message to other environmental activists.”  In the Los Angeles Times Homero Aridjis, Mexican poet and environmentalist, called the case “a perversion of Mexican justice” in which poor isolated activists are charged with much more serious crimes than their true offense: opposing powerful economic interests.

PRODH held a press conference at their offices in Mexico City on August 29 and has filed an appeal against the conviction and sentencing. The case will now be sent to the appeals court in Chilpancingo, Guerrero  which will decide whether or not to uphold the sentencing.   The one and only hearing in the appeal was held on October 2.  Under Mexican law, the judge was required to issue a ruling by October 16.  In practice, however, appeals usually last several months.  A decision can be expected at any moment, but most likely will not occur until late 2000 or early 2001.

Mexico and Human rights concerns in general

Use of Confessions Obtained under Torture

Although Mexican criminal procedure code states that confessions should not be given full evidentiary value, judges typically give them such value when they appear to be corroborated by other evidence. In this case, the judge gave them full evidentiary value because they were backed by testimonies from the soldiers and Public Ministry officials -- the same authorities seeking the environmentalists' conviction.

The Federal Law to Prevent and Punish Torture states that no confession obtained under torture can be used as evidence.  Yet judges place a strict burden of proof on the defendant to establish not only the torture but also a clear causal link between it and the confession.  Superficial medical reports by Public Ministry doctors make it even more difficult to establish the existence of torture, as they generally show a clean bill of health and no evidence of mistreatment.  Additionally, judges give greater evidentiary value to the first confession than subsequent declarations, basing this practice on the assumption that the first declaration -- often made without advice from an attorney or public defender -- is the most truthful.

Military human rights violators investigated and tried by military authorities

Recommendation 8/2000 of the CNDH in the case of Montiel and Cabrera, does not address concern that human rights violations committed by members of the military against civilians are investigated by the Military Prosecutor and tried in military courts. The trial of soldiers by military courts does not guarantee the rights to impartiality and effective access to justice. Furthermore, this practice goes against criteria established by the Inter-American Commission on Human Rights (IACHR) and the United Nations. The IACHR, in its report on Mexico’s human rights situation, recommended that the Mexican government "to act in a meaningful, immediate and effective manner to ensure that complaints about violations of the right to life committed by members of the Mexican police or Armed Forces are immediately and thoroughly investigated and that those found guilty are duly punished" (paragraph 702). The United Nations Special Rapporteur on Torture recommended, after his visit to Mexico, that "Cases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice”. PRODH once again insists that the investigation and prosecution of the soldiers mentioned in the CNDH recommendation should be carried out by the Federal Attorney General’s Office, and the possible trial be held in civil courts.

In this case, according to Article 137 of CNDH bylaw, the SEDENA has 15 days to send proof of full compliance with the recommendation. Like in this case, SEDENA has not complied with this responsibility in other cases of human rights violations committed by members of the military, such as Recommendations 96/97 and 100/97 1. Among the soldiers who should be investigated and possibly prosecuted are: General Brigadier J. Pérez Toledo, Commander of the 35th Military Zone; the Commander of the 9th Military Region, based in Cumbre de Llano Largo, Acapulco, Guerrero state; Lieutenant Coronel José Pedro Arciniega Gómez of the 40th Infantry Battalion; Second Captain Artemio Nazario Carballo of the 40th Infantry Battalion; and Second Sargeant Calixto Rodríguez Salmeron of the 40th Infantry Battalion, among other members of the military mentioned in the Recommendation. In this case, in accordance with the Federal Law to Prevent and Sanction Torture, those responsible for torture can be sentenced from three to twelve years in prison; they can also be charged with Abuse of Authority and Illegal Privation of Liberty, the sentences for which range from 2 to 9 and 20 to 40 years in prison, respectively.

III. The EU and Mexico.

Relations between the EU and Mexico are based on the Economic Partnership Political Co-ordination and Co-operation Agreement (the Global Agreement) that entered into force on 1 October 2000.

Mexico is the 14^th world economy and the second largest national market and EU trading partner in Latin America after Brazil. Trade in goods between the EU and Mexico amounted to 13.2 billion Euro, made up of 9.2 billion Euro in EU exports and 4 billion in imports. With a share of 9% of exports and 5% of imports the EU is Mexico’s’ second largest trading partner after the US. EU Foreign Direct Investment to Mexico increased by 251% to 647 million in 1996 whilst Foreign Direct Investment from the US remained stable. As a result the EU’s share of total Foreign Direct Investment to Mexico rose from 6% in 1993 to 19% in 1996.

The Global Agreement signed in December 1997, which entered into force on October 1, 2000 covers “all bilateral and international matters of mutual interest”. The Global Agreement and the Interim agreement on trade include the standard human rights clause establishing respect for democratic principles and fundamental human rights as an essential element of this agreement.

The free trade agreement between the EU en Mexico (Decision 2/2000 of the EC-Mexico Council of 23 March 2000, covering trade in goods, government procurement, co-operation for competition, consultation on intellectual property rights and dispute settlement) came into force in July 2000. The free trade agreement does not have a human rights clause, although this agreement refers to the Interim trade agreement that does include such a clause (see below).

The  ‘development co-operation activities’ between Mexico and the EU will be centred on priorities outlined in the Mexico Country Strategy Paper. These include: consolidation of the rule of law and fight against poverty and social development particularly as regards the most vulnerable groups such as indigenous peoples and peasants.

It is clear that in the case of Montiel and Cabrera all of these agreements are being violated. The EU has therefore to take action.

The Interim Agreement on Trade and Trade Related Matters (298A0813(01) states “ Basis of the Agreement: respect for democratic principles and fundamental human rights, proclaimed by the Universal declaration of Human Rights, underpins the domestic and external; policies of both Parties and constitutes an essential element of this agreement. TITLE 1, General Principles, Article 1 (GA Article 1)

The Global Agreement (The Economic Partnership Political Co-ordination and Co-operation Agreement (597PC0527) states in the preamble

·         ‘Considering their full commitment to respecting democratic principles and fundamental human rights set out in the Universal declaration of Human Rights as well as to the principles of international law regarding friendly relations and co-operations between states in accordance with the UN Charter, the principles of the rule of law and good government as set out in the Rio Group European Union Ministerial declaration adopted in Sao Paulo in 19941

·         ‘Mindful of the importance that both parties attach to the proper implementation of the principles of sustainable development as agreed and set out in Agenda 21 of the 1992 Rio declaration on Environment and Development

Title 1, article 1 of the Global Agreement reads: “ Basis of the Agreement: respect for democratic principles and fundamental human rights, proclaimed by the Universal declaration of Human Rights, underpins the domestic and eternal; policies of both Parties and constitutes an essential element of this agreement.