REPORT Nº 17/03
PETITION 11.823
INADMISSIBILITY
MARÍA ESTELA ACOSTA HERNÁNDEZ ET. AL.
(EXPLOSIONS IN THE REFORMA DISTRICT OF GUADALAJARA)
MEXICO
February 20, 2003
I. SUMMARY
1. On October 10, 1997, the Inter-American Commission on Human Rights (hereinafter “the IACHR” or “the Commission”) received a petition lodged by the Asociación Jalisciense de Derechos Humanos (“AJDH”) and the Mexican Commission for the Defense and Promotion of Human Rights (hereinafter, jointly, the “petitioners”) against the United Mexican States (the “State” or the “Mexican State”). The complaint alleges that the State is responsible for the April 22, 1992 explosions in the Reforma District of the city of Guadalajara, state of Jalisco, and is therefore also responsible for the deaths of María Estela Acosta Hernández and at least 223 other people, numerous injuries and material damages. The petitioners blame the State for the negligence of employees of the State-owned Petróleos Mexicanos (PEMEX), whom they accuse of having caused a leak of 1.2 liters of hydrocarbons into the sewer lines of Guadalajara’s Reforma District. It was that leak that purportedly set off the explosions. They further contend that the State is responsible for the subsequent failure to investigate the facts, for allowing the guilty to go unpunished, and for acts of repression and harassment targeted against those seeking justice for the explosions.
2. The petitioners assert that the facts reported in their complaint are violations of the following rights protected under the American Convention on Human Rights (hereinafter the “American Convention” or the “Convention”): right to life (Article 4), right to humane treatment (Article 5), right to personal liberty (Article 7), right to a fair trial (Article 8), right to privacy (Article 11), right to freedom of expression (Article 13), right of assembly (Article 15), right of association (Article 16), right of property (Article 21), freedom of movement (Article 22), the right to equal protection (Article 24), and the right to judicial protection (Article 25). The State, for its part, argues that the petition was filed after the time period had expired, since the final judgment was handed down by the Mexican courts on January 28, 1994, and that, moreover, the remedies available under domestic law were not exhausted. The State further contends that the facts do not tend to establish human rights violations attributable to it and therefore asks that the petition be declared inadmissible.
3. In this report the Commission analyzes the available information in light of the provisions of the American Convention and concludes that the petition was lodged after the six-month time period provided for in Article 46(1)(b). It therefore decides that the petition is inadmissible under Article 47(a) of the American Convention; transmits the report to the parties; publishes the report, and orders its publication in the Commission’s Annual Report.
II. PROCESSING BEFORE THE COMMISSION
4. During its in loco visit to Mexico in July 1996, the IACHR received information of a general nature from the AJDH concerning the facts under study. After asking the State to provide information, the Inter-American Commission filed the case.
5. The new petition, which the AJDH and the CMDPDH lodged on October 10, 1997, was registered as number 11.823. On November 17 of that year, the Inter-American Commission requested information from the State concerning the facts alleged by the petitioners. On October 24, 1997, the petitioners submitted more documents, which were added to the file on the petition. The State’s response was submitted on February 13, 1998 and the pertinent parts of it were forwarded to the petitioners on February 26 of that year.
6. The petitioners’ observations were sent to the IACHR on March 25, 1998 and forwarded to the State on April 29, 1998. On April 30, 1998, the petitioners presented documents to accompany their observations, which were added to the file on the petition. At the State’s request, the Commission granted it an extension, whereupon its observations were filed on July 6, 1998.
7. On September 14, 1998, the Inter-American Commission forwarded to the State the pertinent parts of the petitioners’ August 17, 1998 observations. On October 20, 1998, Lic. Guadalupe Morfin Otero, President of the Jalisco State Human Rights Commission, sent the IACHR more information in connection with petition 11.823, which was added to the file.
8. On October 14, 1998, the Mexican State sent its observations, the pertinent parts of which were forwarded to the petitioners on October 26 of that year. On April 14, 1999, the petitioners asked the Commission to “mediate” with a view to reaching a settlement of the matter. On June 11, 1999, the Jalisco State Human Rights Commission filed a series of documents having to do with the explosions in the Reforma District of Guadalajara. Those documents were added to the file.
III. THE PARTIES’ POSITIONS ON ADMISSIBILITY
A. The petitioners
9. In the communication that started the proceedings on this matter, the petitioners describe the events that occurred after 10:00 p.m. on the night of April 22, 1992, as “the worst tragedy in Guadalajara’s history.” That day, the Colector Intermedio Oriente (part of the city’s underground sewer system) blew up, causing damage to 12.5 kilometer of densely populated streets and avenues in the Reforma District of the city. The petitioners submitted five lists of victims: one list naming 224 fatalities, based on official figures; another list of 15 persons reported missing; another list naming 12 surviving victims; a fourth list of 30 affected persons and sympathizers from the “Movimiento Civil de Damnificados 22 de abril A.C.,” and a fifth list of names of nongovernmental organizations alleged to have been the target of reprisals because they had claimed their rights.
10. The petitioners attribute “direct administrative, criminal, civil and ecological responsibility” to the Jalisco Government authorities because they failed to evacuate the civilian population from Guadalajara’s Reforma District in the days and hours prior to the explosions. The petitioners believe that the authorities were fully aware of the “risks and foreseeable eventualities” that could result from the hydrocarbons leaking from the sewers. They allege that the Federal Government is responsible by omission because it failed to enforce the administrative standards and procedures of the “General Law on Ecological Balance and Environmental Protection.” The petitioners also contend that the Mexican State is responsible for the fact that justice has been denied, as the State “refused to undertake its legal, administrative and humanitarian obligations vis-à-vis the victims and the survivors, which is to provide the victims and their families–without preferences or exclusions of any kind-sufficient aid, restitution, compensation, and access to the courts.”
11. The petitioners are invoking the provisions of the American Convention and other international instruments that protect the right to life, the right to humane treatment, the right to personal liberty, judicial guarantees, the right to privacy, the right to freedom of expression, the right of assembly, freedom of association, the right of property, freedom of movement, the right to equal protection and the right to judicial protection. The Commission observes, however, that no specific allegations were made concerning the purported violation of most of these provisions. They state, inter alia, that “the dead and missing Jaliscans numbered in the thousands, not the hundreds” and that “since April 22, 1992, we Jaliscans are not the same: we have lost our sense of tranquility, unity, coexistence, heritage and the peaceful and hospitable nature that was the Jaliscans’ distinctive feature among the Mexican people” (right to humane treatment). They allege that “the right most violated in this case has been the right to judicial guarantees,” for the following reasons:
The victims we have named in this brief have been denied a fair, impartial and rapid recourse that would enable them to protect themselves against the violations and unlawful actions that the Mexican government has used to evade its responsibilities vis-à-vis the population of the Reform district of Guadalajara. Therefore, this IACHR will have to establish the means that international human rights law grants to all persons and groups. We have doubts about the impartiality and independence of the Mexican federal courts that heard the case, reason enough to lodge this complaint.[1]
12. As for the requirement under Article 46(1) of the American Convention, the petitioners initially argued that “both the jurisdictional and non-jurisdictional remedies” had been “basically exhausted” in Mexico; at the same time, they also argued that there had been an unwarranted delay in rendering a judgment on the remedies.[2] After the State’s answer, the petitioners wrote the following:
It is true that with dismissal of Case 70/92 by the aforementioned Third Circuit Federal Court, the 9 PEMEX officials summoned to stand trial were cleared of all charges. They were ordered released, as were the lesser functionaries of SIAPA and Guadalajara City Hall (21 months’ preventive detention pending trial). However, when the only trial instituted thus far was dismissed, justice was denied. The merits of the case have never been decided. When the Federal Prosecutor (hereinafter the MPF) decided not to bring charges, the defendants were able to walk away; not so the thousands of victims, plaintiffs, and the city of Guadalajara, who were denied their right to swift and expeditious justice. [3]
13. The petitioners pursued and elaborated upon this line of argument in their submissions concerning the applicability of the exceptions to the rule requiring exhaustion of domestic remedies:
How does one appeal or file for amparo relief against a court ruling dismissing a case and ordering the immediate release of the accused when one cannot see the text of the ruling or its reasoning? How does one challenge decisions of the MPF or the PGR [Office of the Attorney General of the Republic] that were regarded at the time as unassailable? And how does one defend oneself against a judge and a “public solicitor” who behaved like a Government attorney and cleared the accused of all charges, never giving the aggrieved parties any forewarning so that they might be ready to use what resources they had, and without ever telling them how much time they had to do so? What could the NGOs do for the victims when they did not have standing to act as a party in a legal proceeding whose purpose and outcome were of concern to them but to which they were denied access?[4]
14. The petitioners also maintain that because of the authorities’ negligence and cover-up, not all the crimes alleged to have been committed were investigated and that there is no way of knowing how many victims the catastrophe claimed. They also point out that case 70/92 was flawed from the outset, and that when assessing the conclusions of the Federal Prosecutor and ordering the case closed, the judge acted unlawfully. They analyze in detail the conduct of all the federal and state prosecutors who acted in the proceedings, and that of the public officials from various levels, including the Presidents of the Republic and Governors of Jalisco who served in office between the time the events occurred and 1998.[5] They ask the Commission to reject the arguments alleging that the petition is time-barred, to declare it admissible, and to find that the Mexican State bears international responsibility for the events of April 22, 1992.
B. The State
15. The State’s first response to the petition under consideration begins with a request that the petition be declared inadmissible on the grounds that it is time-barred. The State argues that:
The Sixth District Criminal Judge of the State of Jalisco dismissed criminal case 70/92 on January 28, 1994, ordering defendants Juan Antonio Delgado Escareño, José Adán Ávalos Solórzano, Ángel Bravo Rivadeneyra and Roberto Arrieta Maldonado-Petróleos Mexicanos employees-released; in other words, the petitioners lodged this complaint 45 months after learning of the final judgment in which the charges against the defendants were dropped. Under the American Convention on Human Rights, complaints must be lodged within no more than six months from the date of the final judgment rendered. It is important to note that from the information supplied by the petitioners, it is clear that this court ruling was not appealed, which meant that it became final.
In conclusion, the Government of Mexico considers that the main legal issue in the petitioners’ brief are any omissions and negligent conduct, provable in a court of law, that Petróleos Mexicanos may have been guilty of in order for the tragedy of April 22, 1992 to occur; as they were not proven in court, the presiding judge in the case ordered the case dismissed and the suspects released. The petitioners tacitly accepted the court’s decision; although third parties in the action, they did not ask the Public Prosecutor’s Office to challenge the court decision at the prescribed time and in the prescribed manner.[6]
16. The State contends, moreover, that “there are domestic remedies in the Mexican legal system that the petitioners did not exhaust at the appropriate time if they wanted PEMEX to be found criminally at fault for the events that occurred on April 22, 1992.”[7] The State goes on to say that in late 1996, the National Human Rights Commission declared that Recommendation 57/94, which concerned this matter, had been fulfilled; the petitioners’ complaint regarding the conduct of the CNDH officials was filed 10 months after its declaration certifying compliance.
17. The foregoing notwithstanding, the State addresses a series of issues in its response, presented as “preliminary information.” It describes PEMEX’ legal nature and the body of laws that apply to the petroleum industry. It also makes a number of “clarifications concerning statements made in the complaint regarding Petróleos Mexicanos.” The State asserts the following:
The opinions submitted by the experts offered by the defendants’ defense team concluded that the cathodic protection system in the Salamanca-Guadalajara polyduct system (where the Nova gasoline leak occurred on April 22, 1992), was functioning normally up to the time the (drainage) sewers exploded. They also showed that the leak that occurred in that polyduct system was subsequent to the closing, and subsequent to the explosions. This was borne out by the results obtained on the water samples taken in the sewers prior to 2:00 p.m. on the date in question.
(…)
The presiding judge in criminal case 70/92 declared the examining phase closed on November 3, 1993; he asked the Federal Prosecutor’s Office to present its conclusions, which it did on January 5, 1994. But the findings were not indictments; in other words, the evidence compiled during the proceedings disproved the elements that, at the time the facts were brought to the authorities’ attention and the suspects arrested, appeared to be the aforementioned crimes. On January 27, 1994, the Attorney General of the Republic confirmed that the findings that not all the elements essential for a given conduct to constitute a crime were present.
As a consequence, the judge presiding over the criminal case ordered the case dismissed on January 28, 1994. There was no longer a criminal case since the elements essential to find the accused criminally liable were not present.
Therefore, Petróleos Mexicanos was not found to be at fault in the events of April 22, 1992; the PEMEX employees, who had been mistakenly charged with allegedly criminal acts, were released when the criminal case was dismissed. This decision became final, with all its legal effects.[8]
18. According to the State, there were some 21,750 businesses in metropolitan Guadalajara, engaged in activity that “increased the flow of waste into the sewers.” Compounding the problem was the presence of some 900,000 vehicles in the city at that time. It alleges that “the storage and distribution facilities of Petróleos Mexicanos cannot be blamed for all the hydrocarbons leaking into the sewer water and contaminating it.”[9] The State also points out that PEMEX’ attitude was one of “cooperation with the affected community,” as it made contributions to the fund set up for damage repair and compensation. The State adds that “PEMEX made these gestures of solidarity with those affected in good faith, as it was under no legal obligation to do so.”
19. In that same communication, the State lists the civil actions currently under way against PEMEX. It also summarizes how the National Human Rights Commission responded to a complaint filed by the AJDH, having to do with abuses that a group of demonstrators from the “Movimiento Civil de Damnificados 22 de abril” allegedly suffered on June 1, 1992. The Commission’s response to this incident resulted in Recommendation Nº 57/94, which recommended to the Governor of Jalisco that all necessary measures be taken to ascertain the facts and identify those responsible and bring them to justice. The suspects are all from the Jalisco Public Security Bureau.
20. Finally, the State contends that the petition lodged with the IACHR is intended “to show that the public servants affiliated with that para-State agency were directly responsible for the tragedy that occurred on April 22, 1992.” The dismissal of criminal case 70/92 disproves that position, as well as the underlying motive of the petition.
IV. ANALYSIS
A. The Commission’s competence ratione materiae, ratione personae and ratione temporis
21. Under Article 44 of the American Convention, the petitioners are authorized to lodge petitioners with the IACHR. The petition names as alleged victims persons whose rights under the American Convention Mexico pledged to respect and to guarantee. The facts alleged in the petition would have occurred at a time when the obligation to respect and ensure the rights established in the American Convention was already binding upon Mexico. The Commission is, therefore, competent ratione personae to examine the present petition.
22. The IACHR is competent ratione loci to take up the petition inasmuch as it alleges violations of rights protected under the American Convention, purported to have occurred within Mexican territory, which is a State party to the Convention.[10] The Commission is also competent ratione temporis inasmuch as the obligation to respect the rights protected by the American Convention and to ensure their free and full exercise to all persons subject to its jurisdiction was already binding upon the State on the date the events claimed in the petition allegedly occurred. Finally, the Commission is competent ratione materiae because the petition alleges violations of human rights protected by the American Convention.
B. Admissibility requirements
23. In the matter before the Commission for consideration, one of the disputed points concerns fulfillment of the admissibility requirements provided for in Article 46(1)(a) and (b) of the American Convention. The State further contends that the facts do not tend to establish violations of Convention-protected rights.
a. Exhaustion of domestic remedies
24. The Inter-American Court of Human Rights has held that “the rule of prior exhaustion of domestic remedies allows the State to resolve the problem under its internal law before being confronted with an international proceeding. This is particularly true in the international jurisdiction of human rights..”.[11] Such remedies must be adequate, i.e., “adequate domestic remedies are those which are suitable to address an infringement of a legal right.” [12]
25. The IACHR must begin by determining what the adequate domestic remedy was in Mexico to remedy this matter. The explosions that occurred in Guadalajara’s Reforma District on April 22, 1992, raised a very complex question, impacting many of that city’s residents. The petitioners attribute responsibility to the Mexican State in those events, owing to the negligence of its authorities, particularly the officials and employees of the State-owned PEMEX who were responsible for managing the hydrocarbons.
26. According to information in the case file the Office of the Attorney General decided to exercise federal authority and launched an investigation that served as the basis of criminal case 70/92. The purpose of this proceeding was to determine whether the PEMEX employees and executives named as defendants in the preliminary phase were at fault. The facts were investigated. Both the State and the petitioners concur that civil lawsuits and other proceedings associated with the April 22, 1992 events in Guadalajara were also instituted at the same time.
27. As previously observed, the petitioners originally maintained that the domestic remedies had “basically been exhausted” and that they turned to the inter-American system because there were no other avenues to exhaust in Mexico. When the State responded by alleging that the petition was filed after the allowed time period, the petitioners elaborated upon their arguments and alleged that the exceptions provided for in Article 46(2) of the American Convention were applicable. They further asserted that they were not allowed to see the case file because they were acting as a civil society organization and not as the victims’ legal representatives. Having been denied access to the case file, they claimed they had no knowledge of the outcome of the investigation and were thus prevented from filing a petition of amparo to challenge the Public Prosecutor’s decision to drop all charges against those alleged to be responsible for what happened.
28. The IACHR observes that the petition was lodged on behalf of all the fatalities, the injured, and the other inhabitants of Guadalajara’s Reforma District who sustained any other form of damage or loss as a result of the explosions on April 22, 1992. The petitioners do not build their arguments around the particular situation of each individual alleged victim or each of the events taken separately. Therefore, the adequacy of the remedy to be exhausted has to be determined on the basis of the facts alleged, taken as a whole, and the totality of persons that the petitioners claim as victims.
29. The main issue in this matter, in the judgment of the Inter-American Commission, concerns the investigation into whether the PEMEX employees and executives bore direct responsibility for what happened and whether any other state and federal officials were at fault subsequent to April 1992. The proceeding instituted by the PGR, which led to criminal case 70/92, had all the necessary elements of suitability and effectiveness required under the jurisprudence of the inter-American to ascertain the facts, identify the responsible parties, punish them and redress the victims.
30. The information available to the Inter-American Commission in the case file reveals that none of the other civil suits, proceedings and out-of-court measures initiated by private parties or by the petitioners addressed all of the facts analyzed here. Therefore, none of them could have resulted in a finding that the Mexican State was responsible for all the facts that the petitioners denounced or secure compensation for the victims named on the lists the petitioners submitted. The petitioners’ arguments as to the exceptions to the rule requiring exhaustion of local remedies basically concern the delay and ineffectiveness of these parallel proceedings. The Inter-American Commission therefore finds that the exceptions to the prior exhaustion rule do not apply in this case.
31. For these reasons, the IACHR concludes that in this matter, the remedies under domestic law were exhausted on January 28, 1994, with the ruling of the Sixth Criminal Judge, who dismissed criminal case 70/92.
b. Time period for lodging a petition
32. The IACHR has written that the six-month time period provided for in Article 46(1)(b) of the American Convention “has a twofold purpose: to ensure legal certainty and to provide the person concerned with sufficient time to consider his position.”[13] Because this time period is established by convention, its strict observance is of unquestioned importance within the individual petitions system. However, because the purpose of the American Convention is to protect the fundamental freedoms of the individual, the jurisprudence of the inter-American system has allowed certain leeway in regard to procedural time periods, depending upon the circumstances of a given case and within certain reasonable limits.
33. In the instant case, the six-month time period must be counted from the date of notification of the judgment that exhausted domestic remedies; in other words, the date on which the petitioners learned of it. The judgment was delivered on January 28, 1994, and the case file reveals that the petitioners learned of it immediately:
The city was shocked when it learned the news; for one year and nine months it had been awaiting the outcome of the criminal lawsuit that the President [Carlos Salinas de Gortari] had brought in the Judiciary. (…) Hoping for more details, a number of civilian groups–including our NGO-and representatives of a number of political parties went to the PGR Building in Guadalajara on January 29 and 30.[14]
34. Furthermore, on February 7,1994, the petitioners filed a brief with the National Human Rights Commission in which they complained about the conduct of the court authorities and the Public Prosecutor’s Office in the investigation of the explosions. In that brief, the petitioners express their confidence in the National Human Rights Commission’s intervention, although they also noted that “because the matter is so serious, we are already preparing the brief for the international forums.”[15]
35. Despite the foregoing, the petition that was the origin of petition 11.823 was received at the headquarters of the Inter-American Commission on October 10, 1997, by which time the six-month period, counted from notification of the final ruling in the domestic courts, had long since passed. Therefore, the petition does not satisfy the requirement stipulated in Article 46(1)(b) of the American Convention.
V. CONCLUSIONS
36. In the present report, the IACHR has established that while the domestic remedies were exhausted, the petition was lodged after the time period stipulated in the American Convention for filing. Once the Inter-American Commission has concluded that the case is inadmissible because of a failure to comply with one of the requirements stipulated in the Convention, it need not decide any other facts.
37. The Commission concludes that the petition is inadmissible under Article 47(a) of the American Convention. Based on the foregoing arguments of fact and of law,
THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS,
DECIDES:
1. To declare the present case inadmissible.
2. To notify the petitioners and the State of this decision.
3. To publish this decision and include it in the Commission’s Annual Report to the OAS General Assembly.
Done and signed at the headquarters of the Inter-American Commission on Human Rights, in the city of Washington, D.C., the 20th day of the month of February 2003. (Signed): Juan E. Méndez, President; Marta Altolaguirre, First Vice-President; José Zalaquett, Second Vice-President; Robert K. Goldman, Julio Prado Vallejo, Clare K. Roberts, and Susana Villarán, Commissioners
[1] Communication from the petitioners dated October 10, 1997,
pp. 21 to 23. As to the right to personal liberty, the petitioners argue that
“since the mass killing, the victims have been left to heal their wounds,
confined to their beds, their wheelchairs, their hospitals and psychiatric wards,
no longer able to amble down the streets of the physically “rebuilt”
Reforma district; right to privacy: “when that fire and dust exploded
through Reforma district’s homes, churches and schools, smashing windows
and breaking down doors in its path, the private lives of persons, newlyweds
and families were destroyed; we entered another world in which no premium is
attached to people’s privacy”; right to freedom of expression: “the
funeral and protest marches have been muted because so many have moved away
and by the low blows in the press. If at the outset we were the victims of the
authorities’ negligence and patrimonialism because we demanded that our
pain and our urgent needs be addressed, now no one seeks us out; our voice has
been lost amid all the silence, indifference and impunity”; right of assembly:
“… before the disaster struck, neighbors gathered to celebrate birthdays,
graduations, weddings; now, none of that happens, because our neighbors no longer
exist. And as we have no desire to be left alone with our misfortune, we have
moved elsewhere and now live among people with different ideas and customs and
who will never begin to understand our pain; with every day that passes our
lives are shorter and lonelier;” right to private property: “Like
an alchemist, [the then Governor of Jalisco] Cosio and his cronies transformed
our tangibles and intangibles into dust. Private belongings in homes were looted
by the very people sent in the aftermath of the explosions to protect what remained
of our homes, which the explosions had gutted from foundation to roof. Who was
there to protect us from the plundering of the crooked police and military?”;
right of access to the courts: “The Fund forced many victims to sign–several
times, just in case-release forms under which they had to waive any right to
file civil suit or a criminal complaint. The extreme poverty, urgent needs and
ignorance in which the explosion left them were exploited. Every April 22 in
Guadalajara, people gather and shout: “We want justice!” Young people
paint their names on walls and in vacant places. Justice had fled the country
and is surely in hiding, far out of the Mexican people’s reach. We yearn
for her and long for the day when she will return and lead us.”
[3] Communication from the petitioners, March 25, 1998, p. 4.
[6] Communication from the State, February 13, 1998, pp. 1 and 2.
[10] Mexico approved the instrument acceding to the American Convention on March 2, 1981, and deposited it with the OAS General Secretariat on March 24, 1981.
[11] Inter-American Court of Human Rights, Velásquez Rodríguez Case, Judgment of July 29, 1988, Series C Nº 4, par. 61
[13] IACHR, Case 11.230 - Francisco Martorell, Chile, Annual Report 1996, Report Nº 11/96, par. 33.
[14] Communication from the petitioners, October 10, 1997, p. 35.
[15] Letter from the petitioners to Lic. Jorge Madrazo Cuéllar, Chairman of the National Human Rights Commission, February 7, 1994, p. 7.