Arraigo should no longer be applied in Mexico, while preventive detention must be an exceptional precautionary measure, adequate to the rights of presumption of innocence and due process, as ordered last week by the Inter-American Court of Human Rights ( I/A Court HR) when condemning the Mexican State for the serious violation of the fundamental rights generated by these two figures.
According to the jurisprudence of the Supreme Court of Justice of the Nation (SCJN), the judgments of the Inter-American Court are mandatory for all judges in the country, especially those in which Mexico is condemned. The problem is that in that same jurisprudence it is clarified that, regardless of what is ordered by the Inter-American Court, if there is a restriction on human rights in the Mexican Constitution, the judges must apply said limitation.
Currently, federal and state judges continue to imprison people who allegedly committed a crime, despite the fact that preventive detention violates the Inter-American Convention on Human Rights.
This is done in the following way: Although the judge knows that informal pretrial detention violates fundamental rights, as established by the judgments of the Inter-American Court and the American Convention, the togados must obey the restrictions found in article 19 Constitution, which lists 18 crimes for which the defendant should be automatically imprisoned.
Likewise, even if it is not a serious crime, of those indicated in numeral 19 of the Magna Carta, the justified pretrial detention in the cases in which the Public Ministry requests it, under the argument that the alleged offender could evade.
Although it is not questioned that automatic preventive detention is applied when there is evidence of the commission of crimes that are especially harmful to society, such as drug trafficking, homicide or the disappearance of people, today judges can send to prison, preventively, to citizens who are suspected of committing crimes that are not serious.
So, either with informal preventive detention (automatic) or justified, in the end, Mexicans are deprived of their liberty, who on many occasions do not have to be in a prison, because -according to the Inter-American Court- their process can be faced in freedom, with other precautionary measures that are less harmful to the rights humans.
Problems for judges
This is the first time that the Inter-American Court of Human Rights orders our country to eliminate the arraigoand adapt preventive detention respecting human rights, in accordance with the ruling in the case known as “Tzompaxtle Tecpile and Others vs. Mexico”, which was notified last Friday.
For the Inter-American Court, arraigo, which is contained in article 16 of the Constitution, is a form of anticipated sanction that violates the rights of presumption of innocence, judicial guarantees, integrity, personal liberty, and private life, and the same happens with pretrial detention.
In this vein, this international Court was emphatic on what Mexico must do: “Leave without effect in its internal legal system the provisions related to arraigo” and “adapt its internal legal system on pretrial detention.”
With this, complying with this ruling, Mexican judges are obliged not to apply in any case the arraigo, because that would imply placing our country in contempt and breach of a sentence of the Inter-American Court of Human Rights.
Arraigo is a mechanism used by the Prosecutor’s Office to investigate a person, detaining her and depriving her of libertydespite the fact that the Public Prosecutors do not have any accusatory evidence.
Obviously, as soon as a judge decides not to grant the arraigo requested by a Prosecutor’s Office, the Prosecutor’s Office will appeal the ruling, arguing that the togado has stopped observing the jurisprudence of the Mexican Court, preferring what the Inter-American Court of Human Rights ordered.
Something similar will happen when the judges begin to reason pretrial detention in all cases, so that it is not automatic, following the ruling in the case “Tzompaxtle Tecpile and Others vs. Mexico”.
All this will generate contradictions between the different judges and new controversies of a constitutional nature that, necessarily, will have to be analyzed in the coming months by the Supreme Court of Justice of the Nation, as happened in November 2022 when a project by the minister Luis Maria Aguilar Morales proposed a reinterpretation of pretrial detention.
In the Mexican Court, seven of the eleven ministers that make up the Plenary considered that the control judges are empowered to analyze, on a case-by-case basis, the application of informal preventive detention, so that this it is not imposed automatically. However, two months ago, this could not become a reality because eight votes from the ministers were not reached.
However, with what was ordered by the Inter-American Court, now the Supreme Court of our country has the opportunity to modify the jurisprudence that allows the application of the figures of arraigo and preventive detention. To do this, you should not even wait for contradictions to arise among Mexican judges.
As happened in 2011, after the sentence against Mexico, also from the Inter-American Court of Human Rights, in the case of the disappearance of the social fighter Rosendo Radilla, The highest court in the country can open a “Various” matter in which it analyzes the way in which the Federal Judiciary will comply with what is ordered by the Inter-American Court.
Similarly, Congress must adapt both the Constitution and the Federal Criminal Code and the National Code of Criminal Procedures, in order not to fall into contempt before the Inter-American Court, which would imply a new international responsibility of the Mexican State.
However, due to the polarization that exists in the Legislative Branch, in reality, for the moment, The Mexican Court is the only instance that can effectively issue mandatory jurisprudence so that the arraigo is eliminated of our legal system, and so that pretrial detention is no longer automatic, reinterpreting article 19 of the Constitution in harmony with the judgment of the Inter-American Court of Human Rights.
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surya palaces Journalist and lawyer, specialist in legal analysis and human rights. She has been a reporter, radio host and editor.