11/27/12 – Ricardo Mejía Berdeja, representative of Citizen’s Movement party (Movimiento Ciudadano, MC) recently presented a bill before the Chamber of Deputies (Cámara de Diputados) to eradicate a form of preventative detention known in Mexico as arraigo. As Mejía Berdeja argues, this type of detention, employed during the investigative phase of a criminal case before probable cause is fully established, constitutes an arbitrary form of detention that violates human rights. The Coahuila representative also pointed out that the continued existence of arraigo in Mexico creates an unacceptable lack of legal certainty in the country’s justice system.
Arraigo is currently allowed under Article 16 of the Mexican Constitution, as amended in the 2008 reforms that underpin Mexico’s ongoing transition to adversarial criminal justice. Under current law, an arraigo detainee may be held without any formal arrest or criminal charges for up to 40 days, or up to 80 days with explicit judicial approval, as long as there is some allegation of connections to organized crime.
Arraigo was first introduced into Mexican federal criminal law in 1983, and some of the states mirrored it in their own legislation shortly thereafter. The Supreme Court (Suprema Corte de Justicia de la Nación, SCJN), however, ruled it unconstitutional in 2006. Despite this, Mexican legislators voted this controversial law enforcement tool back into effect in 2008.
The use of arraigo has widely expanded throughout the country since 2008. According to the Attorney General’s Office (Procuraduría General de la República PGR), more 700 detainees were held under this legal framework between July 2006 and June 2007. Its use climbed from 932 cases from September 2007 to July 2008, up to 1404 in the same time period for 2008 – 2009. From 2009 to 2011, over 30,000 arraigo orders were issued. Most troublingly, only about 2,000 of those 30,000 cases ever led to formal charges, and less than 500 led to an actual criminal conviction. During the 2012 period, 1,030 people were detained under arraigo.
Arraigo has provoked widespread criticism on human rights grounds, at both the national and international levels. The National Comission on Human Rights (Comisión Nacional de Derechos Humanos, CNDH) has investigated numerous complaints of torture techniques used to try to obtain confessions during arraigo. International organizations, such as United Nations Human Rights Committee (HRC) and the Inter-American Commission on Human Rights (ICHR) have asked the Mexican government to do away with this form of detention, designating it a violation of Article 7 of the American Convention on Human Rights (ACHR); Article 9 of the International Covenant on Civil and Political Rights (ICCPR), and; the Convention against Torture and Cruel, Inhuman Punishment (CAT). Very recently, during a meeting at the Office of the High Commissioner for Human Rights (OHCHR), members of the Committee Against Torture — the entity that oversees CAT — asked Mexico once again to abolish arraigo due to its ties with the practice of torture, in addition to its procedural shortcomings.
The current initiative to abolish arraigo culminates the onslaught of criticism brought against it since its 2008 incorporation to the constitution. Just recently, Rosa Elena González Tirado, candidate for Supreme Court Justice at the SCJN questioned the effectiveness of the arraigo, emphasizing the fact that 90% of such detentions fail to result in any formal charges against detainees.
Mexico’s Chamber has yet to discuss the new initiative that would amend the Constitution, the Federal Code of Criminal Procedures (Código Federal de Procedimientos Penales, CFPP), and the Federal Act against Organized Crime (Ley Federal contra la Delincuencia Organizada, LFCDO) to abolish arraigo. Some states have already recently deleted this form of detention from their laws — Chiapas, Yucatán and Oaxaca — or are in the process of doing so — Guanajuato and Sonora.
Deaton, Janice. “Arraigo y Reforma Legal en México.” La Reforma al Sistema de Justicia Penal en México. San Diego: Trans-Border Institute. 2012.