Case Summary and Outcome

The United Nations Human Rights Committee (UNHCR) held that the State of Mexico violated Lydia Cacho’s right to freedom of expression, under Article 19 of the International Covenant on Civil and Political Rights (ICCPR), by arresting, torturing, and harassing her in retaliation for publishing an investigative book exposing a child exploitation ring involving prominent Mexican businessmen and officials. Cacho, a journalist, and human rights defender, was arrested and detained in 2005 after publishing a book exposing a child exploitation network involving high-profile businessmen and public officials. Following a defamation and calumny complaint filed by one of the businessmen (José Kamel Nacif), Mexican authorities initiated criminal proceedings against Cacho under the legislation in force in the state of Puebla at that time. During her arrest and transfer, Cacho was subjected to physical and psychological abuse, including sexual violence and threats. She claimed before the UNHRC that her detention was arbitrary, unlawful, and aimed at silencing her investigative journalism. Mexico argued that the arrest and proceedings were lawful, necessary, and proportionate. The State also said that the defamation and calumny laws used to prosecute Cacho had since been repealed and mechanisms to protect journalists had been implemented. The Committee found that Mexico failed to demonstrate that Cacho’s detention was necessary and proportionate to achieve a legitimate aim. It determined that the actions taken against the journalist constituted an attempt to suppress her freedom of expression. The UNHRC also said that States should decriminalize defamation. According to it, criminal law should be used only in the most serious cases and defamation should never be punishable by imprisonment. Consequently, the Committee concluded that Mexico violated Cacho’s right to freedom of expression and ordered the State to provide full reparations: investigate the abuses committed, prosecute those responsible, and take steps to prevent similar violations—such as decriminalizing defamation in all Mexican states.

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Facts

Lydia Cacho is a Mexican journalist, human rights defender, and founder of the Centro Integral de Atención a la Mujer in Cancún, Quintana Roo—dedicated to the care of victims of sexual violence. In March 2005, she published the book Los Demonios del Edén. El poder que protege a la pornografía infantil [The Demons of Eden: The Power Behind Child Pornography], based on testimonies of victims who had been cared for in her organization. In her book, Cacho denounced a network of corruption and child exploitation, involving public figures and prominent businessmen, such as José Kamel Nacif Borge—a well-known Mexican textile businessman.

In July 2005, Nacif filed a complaint, in the state of Puebla, for defamation and calumny against Cacho. The Public Prosecutor’s Office opened a preliminary investigation on 12 July 2005 without informing Cacho. Subsequently, on 12 October 2005, criminal proceedings were initiated against Cacho and an arrest warrant against her was issued. On 16 December 2005, Cacho was arrested outside her organization’s offices in Cancún by a group of at least ten people—including judicial police from Puebla and Quintana Roo and private agents hired by Nacif. During the raid, she was not shown a warrant and was taken to the Attorney General’s Office in Quintana Roo, where she was held incommunicado.

Cacho was then transferred by car to the state of Puebla, a journey of approximately 20 hours. During the transfer, she was denied food and medication and was only allowed to go to the toilet once. Police agents subjected her to physical and psychological abuse, including sexual assault and death threats. On several occasions, “one of the officers inserted a gun into [Cacho’s] mouth, moving it around in circles and making sexual comments. The same agent later ran the gun over the author’s breasts, spread her legs apart and pointed the gun at her genitals.” [para. 2.4]

Once in Puebla, she was detained “at the jail cells of the Office of the Attorney General of the State of Puebla.” [para. 2.5] There she was subjected to further acts of violence and sexual abuse. Cacho was eventually released on bail; however, the criminal proceedings continued. On 23 December 2005, the Fifth Criminal Court of Puebla issued a formal arrest order against the journalist for defamation and calumny. On 13 January 2006, the High Court of Justice of the State of Puebla dropped the calumny charge, “such that the proceedings against her related solely to the offence of defamation.” [para. 2.6]

Throughout 2006, several courts argued they didn’t have jurisdiction over the case. On 4 October 2006, the case was referred to the Federal District. On 22 December 2006, the Fourth Criminal Court of the Federal District “dismissed the case on the grounds that the offence of defamation did not exist in that entity and ordered [Cacho’s] release.” [para. 2.8]

Cacho filed complaints before the Office of the Attorney General regarding the acts of torture, violence, rape, and corruption, among others, she endured.  Although investigations were opened, they did not lead to any significant sanctions.

The journalist continued to receive threats after her release. This prompted her to request precautionary measures from the Inter-American Commission on Human Rights, which were granted in 2009 to protect her life and personal integrity, as well as that of her family and colleagues.

On 13 October 2014, Cacho lodged a communication to the United Nations Human Rights Committee (UNHRC) arguing that Mexico had violated her right to freedom of expression under Article 19 of the International Covenant on Civil and Political Rights (ICCPR).

On 4 June 2017, Mexico submitted its observations before the Committee, arguing that Cacho’s arrest and criminal proceedings were lawful, necessary, and proportionate under the legislation in force in Puebla at the time of the events. The State emphasized that its intent was not to suppress the author’s freedom of expression, as the measures that were taken were a response to legal complaints. Additionally, Mexico noted that the defamation and calumny laws used to prosecute Cacho had been repealed and new protective mechanisms for journalists had been established.

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Decision Overview

Due to the complexity of the case, the United Nations Human Rights Committee had to examine potential violations to different rights protected by the ICCPR. This case analysis will focus on the issues that concern freedom of expression. The main issue regarding this right that the Committee had to analyze was whether the actions taken by Mexican authorities, including the arrest, detention, and torture (among other acts of violence) of journalist Lydia Cacho Ribeiro—after she published a book denouncing a network of corruption and child exploitation—, violated her right to freedom of expression under Article 19 of the ICCPR.

Cacho argued that her arrest and detention were unlawful, arbitrary, and aimed at punishing her for exercising her right to freedom of expression. She also claimed that the treatment she endured during the arrest, transfer, and detention, violated her right to be free from torture and inhumane treatments, as well as her right to gender equality—given the sexual nature of the violence she experienced.

For its part, Mexico argued that the applicant’s arrest and the subsequent criminal proceedings against her for defamation and calumny were lawful, necessary, and proportionate, as they were based on the legislation in force in Puebla at the time. The State maintained that there was no evidence of an intent to suppress Cacho’s freedom of expression, as the legal actions undertaken by domestic authorities were a response to criminal complaints—not an attempt to silence her journalism. The State contended that the applicant did not provide sufficient proof of collusion between authorities to target her and asserted that Cacho’s detention was subjected to judicial review, ensuring its legality.

First, the Committee recalled its General Comment No. 34, which emphasizes that “freedom of opinion and freedom of expression are … essential for any society. They constitute the corner stone for every free and democratic society.” [para. 10.5] The UNHRC also explained that restrictions on the exercise of freedom of expression cannot jeopardize this right and must be exceptional. Furthermore, it highlighted that “restrictions must ‘be provided by law (…) and conform to the strict tests of necessity and proportionality.’” [para. 10.5]

The Committee noted that Mexico did not refute Cacho’s factual allegations. Furthermore, it recalled that the State party argued that the author’s detention was carried out in accordance with the legislation in force in the State of Puebla at the time of the events, “but has provided no further information to justify that the detention was necessary and proportionate.” [para. 10.6]

Next, the UNHRC argued that “States parties should put in place effective measures to protect against attacks aimed at silencing those exercising their right to freedom of expression.” [para. 10.7] Similarly so, the Committee said that States may not use restrictions on freedom of expression “as a justification for the muzzling of any advocacy of multi-party democracy, democratic tenets and human rights.” [para. 10.7]

It also considered that arbitrary detentions, torture, death threats, and murder are incompatible with the right to freedom of expression. To the Committee, attacks of this nature on freedom of expression must be promptly investigated by domestic authorities—so perpetrators are prosecuted and victims adequately compensated.

The UNHRC further stressed that States parties should consider decriminalizing defamation and that criminal provisions should, in all circumstances, be applied only in the most serious cases—while the imposition of prison sentences should be considered inappropriate and unjustified. In light of this, the Committee concluded that “no detention based on charges of defamation may ever be considered either necessary or proportionate.” [para. 10.8]

Upon examining the specific case, the UNHRC held that even if Cacho’s detention was based on existing laws to protect a legitimate aim, such as personal honor, “that detention was not a necessary or proportionate measure to achieve that aim, in violation of her right to freedom of expression under article 19 of the Covenant.” [para. 10.9]

For these reasons, the Committee concluded that Mexico violated Cacho’s right to freedom of expression under Article 19 of the ICCPR. The UNHRC ordered Mexico to provide full reparations to Cacho. Under this premise, Mexico “should: (a) conduct an impartial, prompt and thorough investigation into the [author’s] allegations; (b) prosecute, try and punish appropriately the persons found guilty of the violations; and (c) provide [Cacho] with appropriate compensation. The State party is also under an obligation to take all steps necessary to prevent similar violations from occurring in the future and ensure that all journalists and human rights defenders are able to exercise their right to freedom of expression in their activities, including by decriminalizing the offences of defamation and calumny in all the federated states.” [para. 11]

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