Introduction
In this paper I will talk about how human rights is a phenomenon that is becoming more important every day, by virtue of the fact that it has been becoming a sign of the times, and as a result of the violation of such rights by organized crime, which Since any person who belongs to a violent criminal group, the legislator defined Organized Crime as an organization composed of three or more people, dedicated to committing crimes repeatedly or permanently, acting that puts the citizens in distress, same that is typified in the Federal Law Against Organized Crime, likewise it will be pointed out that crimes are committed by organized crime.
objective
Determine the way in which human rights have been violated by members of organized crime.
Problem Statement
How human rights have been violated by organized crime?
Origin of human rights
As time goes by and the enormous concern of scholars and human rights analysts, several authors have agreed that affirm that the origins of human rights go back to ancient Greece and arose with the natural law of men.
Definition of human rights
Human rights are universal legal guarantees that protect individuals and groups against actions and omissions that interfere with freedoms, fundamental rights, and human dignity. Human rights law mainly obliges governments and some non-governmental actors to fulfill certain duties and establishes certain prohibitions on them.
NORBERTO BOBBIO points out that the term Human Rights is used in at least two meanings: As instruments and mechanisms to control and limit the action of the State, and as the compass of social efforts to achieve the common good.
According to the widespread abuses of human rights and fundamental freedoms it is known that during the 1930s, which culminated in the atrocities of the Second World War (1939 to 1945), they put an end to the idea that each state on their own he had the last word in the treatment he gave his citizens.
The signing of the Charter of the United Nations in June 1945 placed human rights in the sphere of international law. All United Nations Member States have agreed to take measures to protect human rights. Three years later, the adoption of the Universal Declaration of Human Rights provided the world with “a common ideal for all peoples and nations”, based on the “recognition of the intrinsic dignity of the equal and inalienable rights of all members of the human family.
Since the Inter-American Human Rights System arises within the Organization of American States (OAS).
System that has two main protection bodies: the Inter-American Commission on Human Rights (CIAD) and the Inter-American Court of Human Rights (CrIADH).
The inter-american commission on human rights
It is made up of seven members, meets several times a year, is based in Washington, and acts on behalf of the American states. In 1959, under the provision of Article 106 of the OAS Charter, said Commission was created, whose procedures and functions were reformed with the entry into force of the PSJ, according to this treaty, the functions of the Commission can be classified in advisory-promotional, administrative and quasi-legal.
The Inter-American Court of Human Rights
It is made up of seven judges, elected "in a personal capacity from among jurists of the highest moral authority, of recognized competence in matters of human rights."
Its headquarters are in San José, Costa Rica, and together with the IACHR forms an indivisible binomial in the Inter-American Human Rights System, it was established by PSJ; and any country in the region, in accordance with article 62 of the treaty, must explicitly accept the jurisdiction of the CrIADH so that it can hear cases related to the PSJ.
There are two main competences of the CrIADH: the issuance of advisory opinions and the contentious jurisdiction.
Now, at present, the law that governs in our country is the Law of the National Human Rights Commission, which has management and budgetary autonomy, legal personality and its own assets, and its essential purpose is the protection, observance, promotion, study and dissemination of human rights protected by the Mexican legal order, and this has jurisdiction throughout the national territory, to hear complaints related to alleged human rights violations when they are imputed to authorities and public servants of Federal character, with the exception of those of the Judicial Power of the Federation, provided for in articles 2 and 3 of the aforementioned law.
Integration and powers of the national human rights commission
Regarding its integration and faculties, it will be integrated with a President, an Executive Secretariat, General Visitors as well as the number of deputy visitors and professional, technical and administrative personnel necessary for the performance of its functions, in the same way for the best performance of its responsibilities will have a Council.
Powers of the national commission for human rights
I.- Receive complaints of alleged human rights violations;
II.- Hear and investigate at the request of a party, or ex officio, alleged violations of human rights in the following cases:
- By acts or omissions of federal administrative authorities; When individuals or any other social agent commit illegal acts with the tolerance or consent of a public servant or authority, or when the latter unfoundedly refuse to exercise the powers that legally correspond to them in relation to said illegal acts, particularly in the case of conducts that affect the physical integrity of people;
III. Formulate non-binding public recommendations and complaints and complaints before the respective authorities, in the terms established by Article 102, Section B, of the Political Constitution of the United Mexican States.
IV.- Know and decide in the last instance the non-conformities that arise with respect to the recommendations and agreements of the human rights organizations of the Federal Entities referred to in the aforementioned article 102, section B, of the Political Constitution.
V. Know and ultimately decide the non-conformities due to omissions incurred by the human rights organizations referred to in the previous section, and due to insufficient compliance with their recommendations by the local authorities, in the terms indicated by this law.
VI.- To seek conciliation between the complainants and the authorities indicated as responsible, as well as the immediate solution of a conflict raised, when the nature of the case allows it;
VII.- Promote the observance of human rights in the country.
VIII.- Propose to the various authorities of the country, that within the exclusive scope of their competence, they promote changes and modifications of legislative and regulatory provisions, as well as administrative practices, which, in the opinion of the National Commission, result in better protection of human rights.
IX.- Promote the study, teaching and dissemination of human rights at the national and international level.
X.- Issue its Internal Regulations.
XI.- Prepare and execute preventive programs on human rights.
XII. Monitor respect for human rights in the country's social reintegration system through the preparation of an annual diagnosis of their situation.
This diagnosis must include, in addition to the evaluations that the Commission considers, statistical data on the number, causes and effects of homicides, as well as fights, riots, disorders, abuses and documented complaints that occur in prisons, centers of federal and local detention and detention.
The diagnosis will be made known to the federal and local agencies competent in the matter so that they can draw up, taking into account the opinions of the Commission, the public policies aimed at guaranteeing respect for the human rights of inmates.
XIII.- Formulate programs and propose actions in coordination with the competent agencies that promote compliance within the national territory of the international treaties, conventions and agreements signed and ratified by Mexico in the field of human rights.
XIV.- Propose to the Federal Executive, in the terms of the applicable legislation, the signing of international conventions or agreements on human rights.
XIV Bis.- The observance of follow-up, evaluation and monitoring, in matters of equality between women and men.
XV. Investigate facts that constitute serious human rights violations, when deemed appropriate or requested by the Federal Executive, any of the Chambers of the Congress of the Union, the Governor of a State, the Head of Government of the Federal District or the legislatures of the federative entities, and
XVI. The others granted by this Law and other legal regulations.
The National Commission will not be able to hear matters related to:
- Acts and resolutions of electoral bodies and authorities; Jurisdictional resolutions; Queries made by authorities, individuals or other entities, on the interpretation of constitutional and legal provisions.
Under the terms of the National Human Rights Commission law, only complaints or non-conformities against acts or omissions of judicial authorities may be admitted or heard, except those of a federal nature, when said acts or omissions are administrative in nature. The National Commission for no reason may examine substantive jurisdictional issues.
With this it is to understand that the complaints and denunciations, the resolutions and recommendations formulated by the National Commission of Human Rights, do not affect the exercise of other rights and means of defense that may correspond to those affected according to the laws; therefore, they do not suspend or interrupt their preclusive periods.
Non-compete matters of the national human rights commission
As has been stated, the National Human Rights Commission will not intervene in acts such as:
- Acts and resolutions of electoral bodies and authorities. Jurisdictional resolutions. Queries made by authorities, individuals or other entities, on the interpretation of constitutional and legal provisions. For no reason may you examine substantive jurisdictional issues. Conflicts between individuals.
Now, we will delve into the powers of the visitors appointed by the National Human Rights Commission, this being the following:
To be General Visitor of the National Commission, they must first meet for their appointment, the following requirements:
- Be a Mexican citizen in full exercise of their rights; Be over thirty years of age, on the day of their appointment; Have a law degree legally issued, and have at least three years of professional practice; yBeing of recognized good reputation.
Visitor powers
- Receive, admit or reject the complaints and non-conformities presented by those affected, their representatives or the complainants before the National Commission. Initiate, at the request of the party, the investigation of the complaints and non-conformities that are presented, or ex officio, at the discretion of those on complaints of violation of human rights that appear in the media Carry out the necessary activities to achieve, through conciliation, the immediate solution of the human rights violations that by their very nature allows it Carry out the necessary investigations and studies To formulate the draft recommendations or agreement, which will be submitted to the President of the National Commission for his consideration, and the others indicated by this law and the President of the National Commission,necessary for the best performance of their functions.
The assistant visitors will assist the General Visitors in their functions in the terms established by the Regulations and for this purpose they must meet the requirements established by the same for their appointment.
Obligation of states in relation to human rights
Although in principle any person or group can violate human rights, and in fact abuses against human rights committed by agents not belonging to the State (transnational companies, organized crime or international terrorism) continue to increase, by virtue of current international law only states assume direct obligations in relation to human rights.
By becoming party to international human rights treaties, States assume the obligations to: respect, protect and fulfill human rights. While the balance between these obligations or duties may vary according to the rights in question, they apply in principle to all civil, political, economic, social and cultural rights.
In addition, the States have the duty to provide reparation at the domestic level in the event of human rights violations. These international obligations that States have in the field of human rights consist of:
Respect: do not interfere with your enjoyment; that is, the State and its agents must refrain from interfering with the enjoyment of human rights.
Protect: adopt measures that prevent these from being violated by third parties.
Guarantee: this obligation is implicitly related to that of respecting and protecting and implies that States must take measures to prevent, investigate, and punish human rights violations, as well as to repair the violated right.
Comply (also known as facilitate and provide): take actions that allow people access to human rights and guarantee their enjoyment whenever a person (or group) is unable, for reasons beyond their control, to implement the right by herself with the resources at her disposal.
Organized crime concept
The concept of "organized crime" was used for the first time by the American criminologist John Ladesco in 1929, to refer to criminal operations originating from the mafia.
This type of crime was designated by the word "organized", as it refers to the "association", the "society", the "corporation", the "group", the "union", the "league", to the "union", to the "coalition", to the "union" itself, as a way of joining forces as a group; and with the use of violence, bribery, intimidation and force, the criminals carried out their illegal activities.
GUILLERMO COLIN SÁNCHEZ, states that there will be organized crime, “when three or more people agree to organize or organize themselves to carry out, permanently or repeatedly, behaviors that, by themselves or together, have the purpose or result of committing one or more of the crimes.
According to article 2 of the Federal Law Against Organized Crime, in which it states that “When three or more people are in fact organized to carry out, permanently or repeatedly, conducts that, by themselves or in conjunction with others, have the purpose of or the result of committing one or more of the following crimes, they will be punished for that single act, as members of organized crime ”.
Crimes that are considered organized crime
Terrorism, international terrorism, against health, counterfeiting or alteration of currency, in the matter of hydrocarbons, operations with resources of illicit origin, Traffic of undocumented persons, Traffic of organs, Corruption of persons under eighteen years of age or of persons who do not have capacity to understand the meaning of the event or of people who do not have the capacity to resist it, Pornography of persons under eighteen years of age or of people who do not have the capacity to understand the meaning of the event or of people who do not have the capacity to resist it, Tourism against persons under eighteen years of age or against persons who do not have the capacity to understand the meaning of the act or against persons who do not have the capacity to resist it,Lening on of persons under eighteen years of age or of persons who do not have the capacity to understand the meaning of the act or of persons who do not have the capacity to resist it, Trafficking of minors or persons who do not have the capacity to understand the meaning of the act, and Theft of vehicles, Crimes in the matter of trafficking in persons, crimes in the matter of kidnapping, Collection and trafficking of weapons.
From this it can be said that the elements that make up organized crime as follows.
a).- In the case of three or more people; b).- that are organized permanently or repeatedly; and c).- That have the purpose of committing any of the criminal types described above.
The force of organized crime then takes root in the establishment of "alliances and ties" that it achieves at all levels, including the political and military; with the help of acts of corruption they achieve their impunity.
Thus, organizations dedicated to organized crime undertake illegal operations of a financial, commercial, banking, stock or commercial nature; actions of bribery, extortion; offering protection services, concealment of fraudulent services and illegal profits; illegitimate acquisitions; control of illegal gambling centers and prostitution centers.
For this reason, organized crime constitutes one of the most serious and vital problems that harm and harm humanity.
When organized crime builds connections with similar organizations by forming networks around the world, the United Nations identifies it as transnational organized crime. This because it lowers the territorial limit and the sovereignty of each state.
The purpose of said organization being that of obtaining economic resources, to prevail over the citizens, with their actions, thereby violating human rights.
Organized crime has a central axis of direction and command and is structured in a cellular and flexible way, with permanent ranks of authority, according to the cell that makes it up; it harbors a permanence in time, beyond the life of its members; they have a group of hit men at their service; they tend to corrupt the authorities; These are two of the known resources for the fulfillment of its objectives; It operates under a developed principle of division of labor through cells that only relate to each other through higher commands.
Transnational organized crime
In the framework of international law, the United Nations Organization has defined organized crime as the activity of a group made up of three or more people, who are linked by a hierarchical or personal relationship, which allows their leaders earn profits or control territories or markets, whether the latter are domestic or foreign, through rape, intimidation, corruption, as well as to promote criminal activity and infiltrate the legitimate economy.
Organized crime in international latitudes is identified as transnational organized crime, in accordance with the provisions of the United Nations Convention against Transnational Organized Crime.
It is called transnational organized crime precisely because it has crossed the national borders of the countries, violating not only their territory but also their sovereignty and affecting their government.
Agree to organize or organize to carry out, permanently or repeatedly, behaviors that, by themselves or in conjunction with others, have the purpose or result of committing one or more of the crimes set forth in the Federal Law Against Organized Crime, according to what is applied in the following jurisprudential criteria:
ORGANIZED CRIME. ARTICLES 2 AND 4 OF THE FEDERAL LAW AGAINST IT DOES NOT VIOLATE ARTICLE 23 OF THE POLITICAL CONSTITUTION OF THE UNITED MEXICAN STATES. The sole agreement of the organization or the organization itself, whose purpose is to commit any of the crimes specified in article 2 of the federal Law Against Organized Crime is sufficient to impose the penalties provided for in article 4 of the law itself, regardless of the commission and the sanction of them; which implies the autonomy of the type. In addition to the statement of reasons for the corresponding initiative, it is noted that the need to provide a special law that would regulate the conduct consisting of the organization of three or more people aimed at committing some of the crimes indicated there was taken into account,It was considered that despite mentioning “organized crime” in criminal legislation, the regulation was still insufficient; consequently, by anticipating organized crime, an autonomous crime is established and not an aggravating one. Now, despite the fact that both the aforementioned precepts and articles 83 bis and 83 quat of the Federal Law on Firearms and Explosives consider public or national security as a protected legal asset, however they do not typify the same facts or conduct illicit conduct. Indeed, of the articles relating to the collection of firearms and explosives, it is noted that the elements of the type are: a) Possession of more than five firearms; b) That the weapons are for use reserved to the Army, Navy and Air Force; c) That the possession is without the corresponding permission; and,d) Possession of cartridges in quantities greater than those allowed. On the other hand, the elements of the type of organized crime are 1) The agreement of three or more people to organize or to organize themselves; 2) That the agreement to organize or the organization be permanent or repeated and, 3) That the agreement or the organization has the purpose or result of committing one or more of the crimes indicated in the aforementioned article 2. That is, the elements that make up the type of each criminal figure: "organized crime", "collection of firearms and explosives" and "possession of cartridges" are totally different, because while the first one considers the agreement within its component elements. to organize or organize, by themselves, to repeatedly or permanently commit any of the crimes indicated therein,Regardless of whether the commission of any of the crimes listed in the aforementioned article 2 is updated, the organization agreement alone or the organization itself constitutes a criminal figure, the second and the third refer, respectively, to the meeting of arms of fire reserved to the Army, Navy and Air Force without the corresponding permit and the possession of cartridges in quantities greater than those allowed. Then, the criminal types of merit contemplate different criminal figures; Hence, the order of formal imprisonment with which the prosecution begins in the hypothesis in question is not followed by two different types that punish the same conduct, since the elements that constitute them are different and, therefore, are they sanction different behaviors.Consequently, articles 2 and 4 of the Federal Law Against Organized Crime do not classify the same behaviors as articles 83 bis and 83 quat of the Federal Law on Firearms and Explosives and, therefore, do not violate article 23 of the Federal Constitution. Ninth Epoch. Instance: Second Chamber. Source: Judicial Weekly of the federation and its Gazette. Volume: XIII, May 2001. Thesis: 2nd. XLIX / 2001. Page 446.
Fight against crime
A first delicate sector is the one that refers to the fight against organized crime. The human rights commissions have documented the increase in torture, the presence of extrajudicial executions. Recent studies reveal that to date, more than 35 thousand deaths have been carried out and some of them are missing; and searches without judicial orders by the State security forces, both civil and military; all this supposes a scene of massive violation of rights.
For all of the above, it is known that the problem of organized crime is a phenomenon that has grown and is no longer a local or national problem, it has now become an international problem, and various researchers have dedicated their time to study and analysis of this type of criminal organization, and they have agreed that it covers various aspects of Criminology, Criminal Policy and Criminal Law.
Nor can it be said that it is a phenomenon typical of the life of a single country, or specifically of Mexico, certainly in our country, in recent decades there have been various criminal groups with characteristics of Organized Crime, such as the Gulf Cartel., Los Caballeros Templarios, Los Arellanos Felix, La Familia Michoacana, Nuevo Cartel de Juárez, Cartel de la Barbi, the criminal group called Los Zetas, to name a few, but in a report issued in March 2013, the Attorney General's Office of The Republic pointed out that in our country, there are 89 cartels dedicated to drug trafficking, some of them have ramifications at the international level, that is, they have crossed Mexican borders.
It should be noted that for a criminal group to be considered as Organized Crime, it must have the characteristics of permanence, self-renewal and a mature structural model, it is not surprising that some may not meet all these characteristics, however they are criminal groups who are engaged in the illegal trade of drugs and drugs, money laundering, pornography, etc.
Hence, it has been of great concern not only for the Mexican government, but also worldwide, to group together and confront organized crime, with mutual support in economic matters, logistics, cooperation in investigations, and all this has generated international treaties of the which Mexico is part of.
This phenomenon of Organized Crime, which is not a problem of today, if not years ago, and not as a local phenomenon if not an international one, such as arms trafficking, drug trafficking, human trafficking, money laundering., has been a topic that has been discussed in the United Nations (UN), Organization of American States (OAS), hence international agreements have been generated in order to implement joint criminal policies.
Thus, in December 2000, the United Nations Convention against Transnational Organized Crime was signed in Palermo (Italy), where the world community agreed that: “If crime crosses borders, the same must do the action of the law. If the rule of law is undermined not only in one country, but in many countries, those who defend it cannot limit themselves to using only national means and means. If the enemies of progress and human rights seek to use the openness and possibilities that globalization offers to achieve their ends, we must use these same factors to defend human rights and defeat crime, corruption and trafficking. of people."
On the other hand, the Millennium Declaration, approved by the Heads of State meeting at the United Nations in September 2000, reaffirmed the principles on which they were inspired and which served as the basis to encourage all those who fight for the empire of the law. The Declaration affirms that “men and women have the right to live their lives and raise their children with dignity and free from hunger and fear of violence, oppression or injustice”.
These international agreements and human rights principles have served as the basis for the Mexican State to carry out the Constitutional reforms on July 9, 2011, in which the Mexican government is obliged to adopt an effective criminal policy to combat the Organized crime and to protect human rights and to keep one free from fear, however it is not an easy task due to the degree of corruption that exists and that is linked to the police forces, to the extent that in recent months, many others have died they have been jailed for having ties to Organized Crime; However, in a personal opinion, Organized Crime is immersed in the government structure, in the media, as is the case of one of the most watched and listened to TV stations in Mexico,who in their vehicles were transporting millions of dollars of drug trafficking and were arrested in South America.
conclusion
Non-Governmental Organizations and Human Rights Organizations, without a doubt, have played an important role in the recognition of fundamental rights by the Mexican Government, as I will point out later, especially the Inter-American Court and Inter-American Commission on Rights. Humans are institutions that are properly structured, which act impartially.
In Mexico we have the National Human Rights Commission, a body that also has a duly organized structure, which allows it to carry out a more efficient work in investigating human rights violations.
Our Country faces organized crime, with systems that are not in accordance with the social reality in terms of Procurement and Administration of Justice, which has not allowed it to preserve the rule of law and the safety of its citizens, it is true that it is not about a problem exclusively of the Mexican State, but one of an international order as defined by the UN and the OAS and which endangers the stability of the countries where these criminal groups operate.
The Government of Mexico has signed various international treaties where it has made the commitment to face the fight against Organized Crime, safeguard, adopt common measures and actions, that fully respect human rights and fundamental rights, based on these commitments has reformed the Political Constitution of the United Mexican States because the only way to combat structured and organized crime is precisely with full respect for those rights, on the one hand, and with the use of new tools that incorporate international treaties and complements with the United Nations Convention against Transnational Organized Crime, who have designed protocols for the investigation of crimes that do the most harm to human beings, including:Protocol to prevent, repress and punish trafficking in persons, especially women and children, Protocol against smuggling of migrants by land, sea and air, Arms Trafficking among others.
In this order, the Government of Mexico, with the aim of adapting the model of procurement and administration of justice to the requirements of the International Treaties, carries out a Constitutional form of Criminal Justice and Public Security, which was published on June 18 of 2008, ten articles are specifically reformed, but in my opinion the most important is the reform of Article 20 of the Constitution, which establishes a new accusatory and oral criminal justice system, thereby creating a new paradigm, in where both the victim or offended, as well as the accused, their rights, their freedoms and the security of a process without violations of individual guarantees and human rights are recognized.
Now, in the light of my interpretation, one of the fundamental reforms that tends to transform the social and political life of our country is that of June 10, 2011, in its 1st article. Where human rights are raised to the Constitutional rank and the obligation on the part of all authorities, in the observation of the International Treaties signed by the Governments of Mexico, it also includes the "pro personae" principle, also known as international human right, also indicates as the duty of the Mexican authorities the duty to promote, respect and guarantee human rights.
Undoubtedly this has been one of the achievements by international and national organizations, in which the Mexican government adopts protective measures to guarantee this constellation of fundamental rights, such as life, freedom, free movement, etc. that have been greatly lacerated by Organized Crime that has infiltrated all levels of government.
With this I conclude, this analysis on Human Rights and Organized Crime, in this way we can see what a difficult task the Mexican State has.
Since a Constitutional reform and a new model of Justice are not enough, a comprehensive structural reform is necessary at all levels, that is, it must have the following:
- Organization of the authorities in charge of trying to administer justice Provide them with sophisticated material resources and duly prepared human resources Create police forces that are not limited to protecting or preserving the crime scene or place of discovery, (which they do not even do), if not create a scientific investigative police, with technical resources and advanced technology. That the resources destined to public security be applied to improve salaries and purchase of equipment for the laboratories where evidence is processed.
Bibliography
- José Ovalle Favela, General Theory of the Process, Sixth Edition, Oxford, Mexico 2008. Hugo Saúl Ramírez García, Pedro de Jesús Pallares Yabus, Human Rights, Oxford, Mexico 2012. Guillermo Colín Sánchez, Mexican Law of Criminal Procedures, Nineteenth Edition, Porrúa, Mexico 2007 Federal Law Against Organized Crime Law of the National Human Rights Commission.
