02/26/14 – The Mexican Supreme Court of Justice (Suprema Corte de Justicia de la Nación, SCJN) ruled that states could no longer legislate on arraigo and that state-level authorities are not allowed to use the practice. In an 8 to 2 vote, the Court ruled that the judicial reform of 2008 that incorporates arraigo into the Constitution allows for it only to be used in cases of organized crime, which falls under federal jurisdiction. The decision came after the National Commission on Human Rights (Comisión Nacional de Derechos Humanos, CNDH) submitted a claim arguing its unconstitutionality in response to a criminal legislation reform in Aguascalientes that allowed state prosecutors to use arraigo in cases of serious crimes.
Arraigo is a form of preventive detention that allows for imprisonment without formal charges for up to 80 days. This prosecutorial tool 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 federal 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.
While the use of arraigo is growing, particularly at the federal level, many states have moved forward with abolishing the figure from their state legislation, including Chiapas, Coahuila, Federal District (Mexico City), Oaxaca, and San Luis Potosí. In some cases, such as the Federal District, the legislatures are substituting it with an alternative figure of preventive detention. Given all state-level criminal legislations will be replaced once the National Criminal Code enters into force, it is unclear weather this prohibition for state authorities to use arraigo will prevail once the new legal framework begins to be applied.
National and international organizations are still calling for arraigo to be abolished from Mexican legislation due to its incompatibility with international human rights standards. Arraigo has been repeatedly denounced by organizations such as the CNDH, United Nations Human Rights Committee, and United Nations Subcommittee for the Prevention of Torture, among others.
Díaz, Gloria Leticia. “Expertos y activistas piden a la Corte eliminación de arraigo.” Proceso. February 24, 2014.
Fuentes, Victor. “Invalida Corte arraigo en estados.” Reforma.
February 24, 2014.
Deaton J. & Rodriguez, O. “Comparative analysis of ‘arraigo’ in Mexico.” Justice in Mexico, University of San Diego. Forthcoming.