02/24/2023 (written by abrizuela) – On January 27, 2023, the Inter-American Court of Human Rights (IACHR) condemned Mexico for its practice of arraigo and preventive detention. After examining a case that involved the use of arraigo and preventive prison to hold victims in prison for over two years without conviction, the court determined that these practices violated the right to personal integrity, personal liberty, judicial guarantees, and judicial protection. These rights are contained in Articles 5, 7, 8 and 25 of the American Convention on Human Rights (ACHR) that is signed by Mexico. (Diario Constitutional) The IACHR ordered Mexico to annul regulations related to “arraigo” and requested that preventive detention be adapted so that it is better compatible with the ACHR. (Siempre! Presencia de México)
Arraigo is an investigative tool and form of preventive detention that permits imprisonment without formal charges for up to 80 days. In 2008, the arraigo mechanism was authorized under Article 16 of the Mexican Constitution, due to its expansive use in Mexico’s war against organized crime. Since the reform of arraigo was included in the amended Constitution, the mechanism could no longer be challenged on the grounds of constitutionality. However, the practice of arraigo has received widespread international criticism from organizations such as the United Nations and Amnesty International. Reports by these organizations found serious patterns of human rights violantions under arraigo such as denial of counsel, torture, and being held incomunidcado. The use of arraigo for criminal investigations in Mexico was assessed by Justice in Mexico in a Special Report written by Janice Deaton and Octavio Rodríguez Ferreira, “Detention Without Charge”. The authors of Justice in Mexico’s Special Report advocated for the elimination of the use of arraigo back in 2015. For the full special report, click here.
The second matter assessed by the IACHR was that of preventative prison. Established in Article 19 of the Mexican Constitution, preventative prison requires judges to impose pre-trial detention on people accused of specific crimes such as intentional homicide, femicide, rape, and cargo theft or house robbery. (United Nations Human Rights Office) International organizations such as The United Nations’ Working Group on Arbitrary Detention have called on Mexico to abolish its mandatory pre-trial detention as it violates fundamental human rights such as presumption of innocence, and due process and equality before the law. Miriam Estrada-Castillo, chair-rapporteur for the United Nations’ Working Group on Arbitrary Detention stated, “One of the most serious consequences of mandatory pre-trial detention has been that many Mexicans spend more than a decade deprived of their liberty, awaiting trial, without sentence and in conditions of serious risk to their lives and personal integrity.”
The practice of preventive detention is common in Mexico as 40% of the people in Mexico’s prisons in 2021 were not formally convicted of a crime. (Courthouse News Service) According to the United States Department of State, while the law provides time limits and conditions on pretrial detention, federal authorities often fail to comply with regulations since the federal judicial system is overwhelmed with cases. Moreover, mandatory pretrial detention overwhelmingly affects poor and undereducated populations in Mexico. Two thirds of the detainees in pretrial detention in 2021 had not received an education beyond secondary school and a quarter of the detainees were workers who received less than Mexico’s minimum wage of $150 USD per month. (Courthouse News Service)
The Inter-American Court of Human Rights is a regional human rights tribunal whose objective is to interpret and apply the American Convention on Human Rights. Twenty states in the Americas recognize the contentious jurisdiction of the Court, including Mexico since the Mexican Senate ratified the convention on January 16, 1998. The IACHR’s recent sentence relates to the case of Tzompaxtle Tecpile y Otros Vs. México, a lawsuit filed by victims of arraigo and preventive prison. On January 12, 2006, the victims were detained after police inspected their vehicle and found incriminating evidence that connected them to organized crime. The victims were then interrogated and held incommunicado for two days. Subsequently, arraigo was decreed and the victims were deprived of their liberty for three months until the opening of criminal proceedings. The victims were then held in pretrial detention for two and a half years before they were finally absolved of charges on October 16, 2008. (Diario Constitutional) Ultimately, the constitutionally mandated mechanisms of arraigo and preventive detention allowed for the victims to be held in prison over two years without conviction. After hearing the case, the Court ordered reparation measures for the victims in addition to ordering the state of Mexico to change its constitution so that arraigo is annulled and preventative detention meets the standards established by the ACHR. (Diario Constitutional)
Mexican President Andrés Manuel López Obrador is an ardent supporter of preventative detention. He introduced a reform in 2019 that increased the number of crimes that warranted the deprivation of liberty under preventive detention. (La Jornada) López Obrador’s administration defended preventive detention when it was assessed by Mexico’s Supreme Court in November, 2022. The National Human Rights Commision along with several senators brought the issue to the supreme court, claiming mandatory pretrial detention violates Mexico’s constitution. According to the López Obrador administration, the removal of pretrial detention for alleged perpetrators of serious crimes would cause defendants to escape or continue committing crimes, thus placing victims, witnesses, and judges in danger. (La Jornada) Ultimately, the initiative to eliminate mandatory pretrial detention failed to receive enough votes to rule the practice as unconstitutional. (Courthouse News Service) Nevertheless, the Inter-American Court’s recent decision has conflicted with Mexico’s Supreme Court ruling as pre-trial detention violates rights listed in the ACHR.
Since Mexico recognizes the contentious jurisdiction of the IACHR it is obligated to comply with the aforementioned judgment. (Siempre! Presencia de México) Mexico has six months to modify its constitution and all Mexican authorities are required to comply with the court’s orders within the scope of their respective powers. (Siempre! Presencia de México) Nevertheless, given the non-binding nature of international treaties, there will likely be obstacles to compliance. While the IACHR lacks enforcement for asserting its decision, Mexico’s risk damaging its international reputation if it refuses to comply with the court orders. (Courthouse News Service) The IACHR’s judgment has already been controversial amongst Mexican officials; Interior Minister Adán Augusto López rejected the directive on the usage of preventative detention. According to the interior minister, “It’s nonsense for the Inter-American Court to place itself above the constitution and it disrespects the Mexican state. There can be no power above the Mexican state, which among other things is the guarantor of social, political and economic stability in this country.” (Mexico News Daily)
“Corte IDH ordena a México adecuar su legislación sobre arraigo y prisión preventiva a los estándares del sistema interamericano de protección de los derechos humanos.” Diario Constitucional. February 11, 2023.
Charbel, Rangel. “Los efectos de la sentencia del caso Tzompaxtle Tecpile con relación al arraigo y a la prisión preventiva oficiosa.” Siempre! Presencia de México. February 16, 2023. http://www.siempre.mx/2023/02/los-efectos-de-la-sentencia-del-caso-tzompaxtle-tecpile-con-relacion-al-arraigo-y-a-la-prision-preventiva-oficiosa/
Copeland, Cody. “Inter-American Court: Mexico’s mandatory pretrial detention violates human rights.” Courthouse News Service. January 27, 2023
Deaton, Ferreira. “Detention Without Charge.” Justice in Mexico. January 2015.
“Interior minister defends pre-trial detention after human rights court ruling.” Mexico News Daily. February 8, 2023. https://mexiconewsdaily.com/news/interior-minister-defends-pre-trial-detention-after-human-rights-court-ruling/
“Mexico should overturn mandatory pre-trial detention: UN experts.” United Nations Human Rights Office of the High Commissioner. September 5, 2022.
Olivares, Urrutia. “La prisión preventiva es esencial ante delitos graves.” La Jornada. August 25, 2022.
“2019 Country Reports on Human Rights Practices: Mexico.” U.S. Department of State. 2019. https://www.state.gov/reports/2019-country-reports-on-human-rights-practices/mexico/