36 116. The petitioners assert that the measures the State took as part of its “zero tolerance” policies set in motion a mechanical system in which young men were deprived of their liberty based solely on suspicion or prejudice. 97 According to the petitioners, in practice this law created a de facto situation in which it was the police that decided who was guilty of the crime of unlawful association and, therefore, who had to be incarcerated. The petitioners also report that this amendment and its consequences were widely criticized by various parties, including the National Commissioner for Human Rights 98 and the Attorney General. 99 117. The information supplied in connection with the amendment to Article 332 of the Penal Code revealed that that amendment allowed the authorities to make mass arrests of young men, merely on suspicion or out of prejudice. The article, which specifically described gangs as a form of unlawful association, in practice gave the authorities legal grounds to make arrests based on such arbitrary criteria as tattooing. The information reported by the petitioners is that as soon as this amendment entered into force, the Police and the Army embarked upon numerous search operations and mass arrests of alleged gang members, all of which received wide coverage in the media. Even President Ricardo Maduro participated in some of these operations. 100 118. In the instant case, the petitioners allege that at the time of the fire at the San Pedro Sula Prison, 44 of the deceased inmates were deprived of their liberty for just the crime of unlawful 97 The petitioners’ observations on the merits, dated April 10, 2009. 98 With regard to the amendment, the National Commissioner for Human Rights said the following: The first consequence of this amendment is to wipe out the presumption of innocence once it is declared that any member of a gang is committing a crime, without implicating that person in the commission of a given offense. Second, the mere suspicion that a person belongs to a gang –now that membership in a gang is itself a criminal offense- gives the police the authority to act as if it were a case of flagrante delicto. For example, the police can search the home where a suspected gang member is or, even worse, may fire on him if he tries to escape. This constant state of in flagrante delicto gives the police the authority to apprehend someone without an order from a competent authority, because the crime of gang membership is not consummated in any single act or event; it endures in time. In other words, flagrancy is not confined to a specific act; instead it becomes a condition. The petitioners’ observations on the merits, dated April 10, 2009. Annex 14. Report of CONADEH, 2003, Chapter II: Security and Justice. 99 An article that appeared in the newspaper under the heading: “Attorney General: The Ministry of Security violates the Constitution with the Anti-Gang Act.” The article states the following: [The Attorney General] recalled that Article 89 of the Constitution provides for the presumption of innocence; in other words, that everyone is innocent until his/her guilt is proven in the presence of a competent judge or tribunal; Article 90 provides for due process and Article 99 provides that homes may not be searched between 6:00 p.m. and 6:00 a.m. without authorization from the persons living in the home or an order from a competent authority. “What he does say is that the procedures being used by this Ministry of Security are unconstitutional […] We have seen how it exhibits persons taken into custody on suspicion of being gang members with the torso exposed to show the tattooing and depicting them as guilty of a crime; all this has consequences.” 2004. The petitioners’ submission of April 21, 2007. Attachments. Article published in Tiempo, Tuesday, January 6, The petitioners’ submission of April 21, 2007. Attachments. Articles published in: El Tiempo, Tuesday, August 19, 2003; El Semanario, Saturday, August 23, 2003; La Prensa, Saturday, August 30, 2003; La Prensa, Thursday, October 2, 2009; La Prensa, Sunday, December 21, 2003; La Prensa, Saturday, December 27, 2003; Tiempo, Saturday, December 27, 2003; and La Prensa, Thursday, August 12, 2004. According to the study done by Andino Mencia, and cited by the petitioners, in the period from August 15, 2003 to December 31, 2005, a total of 5,418 persons were detained in operations, 64% of whom either had the charges against them dismissed or were the beneficiaries of some administrative release or precautionary measure; the remaining 36% were put in preventive detention. Almost two thirds of these were ordered into preventive detention merely because they had tattoos. The petitioners’ observations on the merits, dated April 10, 2009. Annex 8. Andino Mencia, Tomás. Mano Suave y Mano Dura en Honduras [A Soft Touch and a Hard Hand in Honduras]. Lecture delivered at the 1st Central American Congress on Youth, Security and Justice. Antigua, Guatemala, March 15 and 16, 2008, pp. 31 and 32. 100