Freedom of Association and Assembly / Protests, Political Expression
Microtech Contracting Corp. v. Mason Tenders District Council of Greater New York
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The Inter-American Court of Human Rights found that Mexico had violated the human rights of eleven women who, on May 3 and 4 of 2006 had been arrested in the context of a public demonstration. The women were subjected to physical and sexual abuse, were beaten, threatened, and tortured while they were being arrested, and when they were being transferred to a detention facility and in the facility itself. They were sexually assaulted and many of them were raped. The Court found that the Mexican State violated the women’s right to personal integrity, dignity, and private life, as well as the right not to be tortured, the right to assembly, the right to personal liberty and judicial guarantees, and the right to personal integrity.
On May 3, 2006, a demonstration took place in the Belisario Domínguez market, a place where informal traders of flowers routinely worked. They were protesting a decision, by the Municipal government, to be relocated to a different location. In the early hours of the morning, the demonstrators clashed with police forces that had been deployed to prevent flower sellers from setting up their informal stalls. The clash turned violent: demonstrators threw rocks, and attacked the police with sticks and *machetes*. Many of the demonstrators took refuge in a private residence, 500 meters away from where the initial clash took place. Shortly thereafter, a different group of demonstrators blocked the Texcoco-Lechería Highway by burning old tires. Hence, new clashes between demonstrators and police forces ensued. Towards the late afternoon, the police entered the private residence in which many demonstrators had taken refuge and arrested 83 persons, who were then moved to the *Centro de Readaptación Social “Santiaguito”* (hereinafter, “CEPRESO”).
On May 4, 2006, the police moved into the Texcoco-Lechería Highway to remove those demonstrators who were blocking it. In this operation, several police officers entered the town of San Salvador Atenco, were several persons were detained. 106 people were detained, and 72 of them claimed to have been detained inside their homes by police officers acting without a judicial order. Those detained on May the 4th were also moved to the CEPRESO premises.
Most of the people detained claimed to have been physically abused by police officers. The Supreme Court of Mexico found that of the 50 women who had been detained, 31 had been sexually attacked in some way. Eleven of these women took their complaint to the Inter-American system of Human Rights. They claimed to have been sexually assaulted, beaten, tortured, and threatened in different ways by police officers during their detention, while they were being moved to CEPRESO, and within CEPRESO’s premises as well.
The decision by the Inter-American Court of Human Rights began by laying down the facts of the case, partially based on a decision by the Mexican Supreme Court, by a report produced by the National Commission of Human Rights of Mexico, and by the recognition of responsibility made by the Mexican State. The Court found that Mexico had violated several human rights of the plaintiffs.
The Court found a violation of the rights to personal integrity (Article 5 IACHR), dignity and private life (Article 11.2 IACHR), the right to assembly (Article 5 IACHR), personal freedom (Article 7 IACHR), judicial guarantees (Article 8.1 IACHR) and judicial protection (Article 25 IACHR), along with and Articles 1 and 6 of the Inter–American Convention against Torture, and Article 7 of the Convention of Belém do Pará. Indeed, for the Court the State has a legitimate interest in maintaining public order [para. 159], and the use of force for that purpose may be generally justified. However, the Court also recalled that several international instruments limit, clarify and regulate how the use of force is to be deployed [para. 160].
Several duties, then, fall upon the police forces in charge of using force to reestablish public order, including e.g. the duty to “distinguish between the persons who, because of their actions, pose an imminent threat of death or serious injury and those who do not represent a threat; force should be used only against the former…” [para. 160, quoting the case of Zambrano Vélez v. Ecuador). The Court recalled the importance for police officers to respect the principles of legality, absolute necessity and proportionality as expounded in the Basic Principles on the Use of Force. Within the context of the case, the Court found the state responsible not only for the specific acts of abuse against demonstrators, but also for failing to regulate the use of force by security forces, failing to adequately train police forces in the use of force in a way that was complaint with human rights obligations, and failing to design, adequately deploy and monitor the use of force by the police during the events of May the 3rd and 4th [para. 166]. The Court also recalled that the State does not enjoy a limitless discretion to assess the risk posed to the public order by demonstrations protected by Article 15 of the American Convention on Human Rights [para. 167].
On the right to assembly, the Court recalled that its exercise “is one of the most accessible manners to exercise freedom of expression, and through it the protection of other rights can be demanded … the right to assembly is a fundamental right in a democratic society and should not be interpreted in a restrictive fashion…” [para. 171]. The Court also considered that when the violation of the right to assembly is a precondition for the violation of other rights, the right to assembly is also affected [para. 172]. The Court also recalled the chilling effect that the use of excessive force against demonstrators may have on other individuals [para. 172]. The Court fell short, however, of considering that the violation of the right to assembly implied an autonomous violation of the right to freedom of expression [para. 173].
The Court also found that in this case “sexual violence was used by State agents as a tactic or strategy of control, domination and imposing authority” [para. 202]. It concluded that the police agents used rape and sexual violence as tools of “repression and condemnation of the protest measures employed by the demonstrators. They objectified the women to humiliate, dominate and instill fear in the voices of dissent against their powers of command. Sexual violence was used as just one more weapon in the repression of the protest, as if, together with the tear gas and the anti-riot gear, it was merely an additional tactic to achieve the purpose of dispersing the protest and ensuring that the State’s authority was not challenged again” [para. 204].
The Court held that “this type of conduct in the maintenance of public order, more than reprehensible, is absolutely unacceptable. Sexual violence has no place and should never be used as a way of controlling public order by the law enforcement agents of a State bound by the American Convention, the Convention of Belém do Pará and the Inter-American Convention against Torture to pursue “by all appropriate means and without delay, policies to prevent, punish and eradicate” violence against women [para. 204].
Furthermore, the Court found that State agents used sexist and gender-role stereotyped insults and threats against the demonstrators seeking “to reduce the women to a sexual or domestic function, where, stepping out of those roles to demonstrate, protest, study or document what was happening in Texcoco and San Salvador de Atenco – in other words, their mere presence and action in the public sphere – was sufficient to punish them with diverseforms of abuse” [para. 216]. The Court held that “in order to ensure that women have real and effective equality … and the possibility of taking part in public life in the same conditions as men, States must take active and positive measures to combat stereotypical and discriminatory attitudes such as those demonstrated by their police agents” in this case [para. 218].
In the reparations stage, and again confined to the right to assembly, the Court ordered the Mexican State to create a training program related to the use of force in the context of social protests [para. 355] and a monitoring mechanism to ensure that police officers comply with international human rights standards in the use of force [para. 356].
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands freedom of expression, because it interprets the right to assembly as inherently linked and connected to freedom of expression, and lays out a rich interpretation that is highly protective by establishing strong restrictions on the power of the state to use force against peaceful demonstrators. The decision also affirmed that the use of rape and sexual violence against demonstrators for the maintenance of public order is absolutely unacceptable.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
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