Luis Arriaga Valenzuela

Director

Miguel Agustín Pro Juárez Human Rights Center

September 13, 2010

We have chosen the Third Anniversary of the United Nations Declaration on the Rights of Indigenous Peoples for the announcement of an important step toward the full recognition of the rights it contains: the reparations for a hñahñú woman, Jacinta Francisco Marcial, whose rights were violated by the State without it taking full responsibility of its actions.

The violations against her rights by multiple authorities from the executive and judicial branches were widely known, so much that the society raised its voice to demand that the State mend its actions. Her release was accomplished through the participation of various social sectors and the use of the adequate legal tools. However, leaving prison in her case was not a synoym of accessing to justice, but only a step towards it.

What happened after her release and the conditions in which indigenous communities in Mexico are treated by justice institutions reveals to us a far different reality, one that contrasts with the rights recognized in the Declaration. The handbook that we present today, whose goal is to help indigenous communities be aware of their rights under the Declaration, intends to contribute to their demand for justice. Regarding the indigenous communities’ legal institutions, the Declaration states:

Article 5. Indigenous peoples have the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions, while retaining their right to participate fully, if they so choose, in the political, economic, social and cultural life of the State.

Article 13. Indigenous peoples have the right to revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures […].

States shall take effective measures to ensure that this right is protected and also to ensure that indigenous peoples can understand and be understood in political, legal and administrative proceedings, where necessary through the provision of interpretation or by other appropriate means

In March 2006, six federal agents arrived in the community Santiago Mexquititlán, Queretaro State, with the intention of confiscating the goods sold in the local Sunday market. They sometimes claimed it was a police operation against piracy; some other times they said that it was a response to an anonymous complaint for drug selling. The fact that they chose a town where the majority of the inhabitants are indigenous (hñahñú) is symptomatic of the existence of constant abuses against indigenous peoples in Mexico, who are discriminated against and who are subjected to a pattern of domination and exclusion that dates back to the times of the Spanish conquest and colonization.

Unfortunately, the federal agents’ actions are not unusual. On the contrary, there are conditions that make human rights violations against indigenous peoples in Mexico a common practice, specifically within the legal system. Many of them became evident during Jacinta’s trial.

The federal agents who arrived in Santiago found that it would not be easy to fulfill their goal; the merchants resisted the abuse and fully exercised their rights: they requested the agents to show the order that supported the confiscation of goods and to take responsibility for the damages. The confrontation ended after the agents agreed to return the goods and deliver an amount of money to compensate the damages caused. But with many legal resources on their side, agents, prosecutors and the judges (who used unreliable evidence to justify the accusations against the women from Santiago Mexquititlán), put together a criminal trial that concluded with the imprisonment of Jacinta Francisco Marcial and two other women.

Never during the trial were we able to see the rights recognized by Articles 5 and 13 of the Declaration. The inhabitants of Santiago Mexquititlán, like many other indigenous communities, have suffered the violation of their right to keep and promote their own institutions, including the legal ones; although the indigenous peoples have also managed to strengthen their customs, especially those related to the justice system. However we have also witnessed the weakening of social structures in some regions of the country due to economic projects decided under circumstances lacking transparency and which call for greater social initiative before political, legal and administrative public institutions whose logic does not necessarily correspond to that of the indigenous peoples. This lack of recognition of the cultural diversity in the country undermines human rights and makes the existence of irregularities during criminal proceedings far more serious.

As regards the justice system, Center Prodh has continued to denounce human rights violations including the flaws in the criminal law reform of 2008, for example, “arraigo” (a form of arbitrary detention), preventive detention for certain crimes and the existence of two de facto criminal models, one for friends and another for those considered enemies of the state, including the poor, the indigenous peoples and the groups who fight for their rights.

These elements and the inquisitorial features that remain in our criminal justice system are present in the case before us today. First, there is a serious violation, which is the source of the rest: the lack of respect for the presumption of innocence. All authorities involved in Jacinta’s case, who are used to working within authoritarian patterns, took for granted that they were not obliged to support their accusations, to build a consistent story, to present solid evidence. Instead, they assumed and demanded that Jacinta prove her innocence. This fact further complicated the process and unnecessarily extended it.

Along with the need to prove Jacinta’s innocence, the defense attorneys had to overcome several obstacles, including the fact that no witnesses were allowed to testify for her defense. On the contrary, the Attorney General's Office was at all times able to present pieces of evidence, which in most cases were absurd, such as a photo published in a newspaper and contradictory and false statements, both of which were admitted by the judge.

As a result, Jacinta was intentionally accused of a crime she did not commit and was stigmatized as a kidnapper in circumstances that make such claim even worse: in the context of the existence of social demands for greater security facing criminal actions such as kidnapping.

In addition, and clearly in contradiction with what is stated in Article 13 of the Declaration, Jacinta was never assisted by an interpreter nor had access to the appropriate means to face the trial in conditions of equality. Experts confirmed that the Spanish spoken by Jacinta at the time of her arrest was approximately 20%, which was obviously not enough to defend herself against accusations in the context of a trial characterized by the use of technical language that tends to further hinder the defense. But not only was a translator necessary for what was said during the proceedings but also to understand the logic and the frameworks of the justice system in general, which were unknown to Jacinta, who was never assisted by a translator nor properly assisted by the defender that was assigned to her case.

The justice system, as flawed as it is, makes it possible for the State to use it as a tool to ensure its own safety; which becomes far more serious in the case of those who have been traditionally marginalized: groups who demand rights and therefore are considered dangerous for the State; political opponents; indigenous peoples whose worldview is inconvenient for the use of power. In this context, Jacinta’s dignity was violated by a system with a previously existing triple discrimination: being a woman, belonging to an indigenous community and her socioeconomic status.

The three years that Jacinta remained in prison damaged her in multiple aspects, such as the moral, economic, family and community ones. She was away from her family, stopped receiving the income from her economic activities, left the community where she had always actively participated and was presented as a kidnapper. The elements that underlie the decision to victimize her now bring her and her defenders to file a petition before the Federal Attorney General’s Office to demand reparation for:

1. The irregular conditions in which the investigations were carried out by the Federal Attorney General’s Office and which led to the admission of illegitimate pieces of evidence by the judge without Jacinta being present. 

2. The public refusal of the Federal Attorney General’s Office to recognize Jacinta’s innocence after her release, despite the lack of evidence and the multiple contradictions during the investigation. We recall that the Attorney General decided to drop charges but at the same time stated that Jacinta was not innocent (not even considering that her criminal responsibility was never proved).

By presenting a petition for damage reparation we are seeking to avoid that this type of event occurs again, that is, to make justice accessible to society, especially to indigenous peoples.

The reparations have an economic component, compensation. But Jacinta’s demand goes beyond such component and is based on her dignity.  This is both her moral and legal right.

Mexico cannot ignore the fact that it is obliged to protect and guarantee the human rights of those who are under its jurisdiction, especially those who have long resisted dynamics of exclusion and marginalization.

Mexico cannot claim to be democratic if the adequate means to redress are not guaranteed. If the authorities have not fulfilled their duties and have violated the dignity of individuals and communities, they are obliged to provide reparations.

Center Prodh and Jacinta, whose struggle encourages us, want to make clear that we are not willing to allow the repetition of these events. We stress that the dignity of poor and indigenous women must overcome the authoritarian nature of the institutions, who should guarantee security and justice in the country.

We demand that the State respect the rules of due process, especially in the case of indigenous peoples, and the right to express discontent; also that it recognize the legal, political and administrative institutions of these peoples, and create the effective mechanisms leading to equality. These are all rights under the Declaration.

Finally, we hope that the handbook that we present today is used by all the peoples in Mexico as a tool to fight for a dignified life.