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241. In summary, the Court considers that, to avoid arbitrariness in collective detentions, States
must: (i) individualize and separate the conducts of each of the persons detained to prove that
there are reasonable indications, based on objective information, that the conduct of each
detainee meets the requirements for detention established in domestic law in keeping with the
Convention; (ii) ensure that the detention is necessary and proportionate to guarantee a purpose
permitted by the Convention, such as the general interest, and also (iii) ensure that detentions
are subject to judicial control, in addition to the other conditions established in Article 7 of the
American Convention.
242. In this case, regarding the requirement to individualize and to separate the conducts, the
Court takes note that the SCJN verified that, during the operations of May 3 and 4, 2006, in
Texcoco and San Salvador de Atenco, “in many cases, individuals who were not taking part in
criminal activities were detained,” because the police detained people indiscriminately, presuming
that they were all “in flagrante delicto.”338 Similarly, the CNDH noted that “several people [were
detained] who had not taken part in the events, or committed the violent acts attributed to
them,” and underlined that some people were detained “without any reason or justification and,
according to the reasoning of the police, merely because they were at the scene observing what
was happening.”339 Particularly, with regard to the eleven women in this case, according to the
facts acknowledged by the State, the Court notes that there are no indications that lead to a
reasonable presumption of their participation in any misdemeanor or offense; rather, to the
contrary, everything would appear to indicate that they were subsumed within a group of
individuals who were detained en masse, merely because they were at the scene. 340
243. Regarding the necessity and proportionality of the detentions, the Court underscores that
the CNDH concluded that, during the operations of May 3 and 4, “the right to life of at least 207
people who were detained was jeopardized, in addition to those who, without being involved in
the said events, owing to being there temporarily or in transit, put themselves in danger of being
assaulted.”341 In addition, the facts acknowledged by the State reveal that the detentions of the
eleven women victims in this case were not the inevitable result of circumstances beyond the
control of the authorities, and necessary to avoid a real risk of serious harm to people or
property; rather they were the result of a practice of equating presence on the scene with
probable participation in criminal acts. Lastly, the measures taken by the police were not limited
to what was strictly necessary and proportionate, because the eleven women in this case were
detained in the context of a police operation characterized by a disproportionate use of force, in
which they were subjected to sexual violence and torture at the time of their arrests, during their
transfers, and on arrival at CEPRESO (supra paras. 75 to 105). In this regard, the Court has
338
SCJN judgment of February 12, 2009 (evidence file, folios 31249, 31253 and 31254).
339
Recommendation No. 38/2009 of the CNDH of October 16, 2006 (evidence file, folios 504 to 506).
Thus, for example, Cristina Sánchez Hernández recounted that “[t]he grenadiers were there and we asked them to
let us through, that we had nothing to do with the situation and asked for permission to leave, but they said no, that we
were fucked because we were already there and we would just have to be sorry; […] the police agents […] did not ask
whether or not you were involved, simply “here you are and here you go’ to everyone.” Affidavit made by Cristina
Sánchez Hernández on October 31, 2017 (evidence file, folio 37173). She also stated that an agent of the Public
Prosecution Service told her that it was not worth trying to explain anything because “it was as if you were in a car and
ran over someone who had crossed in front of you, and even though it was not intentional, you were there and were
responsible.” Statements and briefs of the eleven victims before the Social Institution (evidence file, folio 32058). Suhelen
Gabriela Cuevas Jaramillo recalled that “they did not respect children, dogs or old people, they did not respect anyone.”
Statement made by Suhelen Gabriela Cuevas Jaramillo during the public hearing held before the Court.
340
341
CNDH Recommendation No. 38/2006 of October 16, 2006 (evidence file, folio 28529).