Detention Without Charge now available!

150113_ARRAIGO_Cover(thumb)Justice in Mexico is pleased to announce the publication of Detention Without Charge, a special report provides a detailed assessment of the use of arraigo as a prosecutorial mechanism in Mexico, as national and international organizations have increasingly questioned the practice. Evidence collected for this report suggests that detention without charge is a poor substitute for due process protections that help to ensure the integrity and legitimacy of police and prosecutorial investigations. Arraigo, is a form of preventive detention that allows for imprisonment without formal charges for up to 80 days. This investigative tool is presently authorized under Article 16 of the Mexican Constitution as amended in the 2008 reforms that underpin Mexico’s ongoing transition to adversarial criminal justice.

Among the key findings of this report we find:

  • 3,166 arraigos were requested by prosecutors from December 2006 through December 2012, of which 2,939 were granted by judicial authority; thus, only 277 requests were denied. Overall, from 2007 to 2012 the percentage of arraigos denied by the judicial authority was just 7%, which indicates that once the prosecutor submitted its request to the judicial authority, 13 out of 14 suspects were detained under arraigo. Of those 13, at least seven were held for more than the initially granted 40-day period. Statements from Mexican authorities suggest that only 3.2% of all arraigos from 2011 to 2012 led to a conviction, meaning that the margin of error could be more than 95%.
  • Preventive and administrative detentions refer to detention without charge, and are contrary to basic human rights law and specific international conventions, such as the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the American Convention on Human Rights.
  • Because of the arbitrary nature of detention and prevalence of torture and other human rights violations under arraigo, it has received criticism and grabbed the international attention of numerous human rights organizations and bodies, from the United Nations to Amnesty International, and domestically from Mexico’s National Human Rights Commission to the Mexican Commission of the Defense and Promotion for Human Rights, among many others.
  • Reports by the United Nations and other national and international organizations have found patterns of violations under arraigo, including denial of counsel, torture, and being held incommunicado.
  • The length and reasonableness of detention, access to counsel, judicial access, torture, and/or right to habeas corpus are all issues raised by human rights advocates and international organizations about the practice of arraigo.
  • Mexico is not the only country that applies a regime of preventive detention. Other countries, especially under the flag of “preventing terrorism,” have developed their own forms of detention with certain similarities, but evident differences from arraigo. Examples are the United Kingdom, Ireland, and Israel, among others.
  • The authors recommend that the use of arraigo be eliminated and prohibited by the constitution, or at a minimum that major modifications be made to provide some measure of protection of the fundamental rights of individuals detained without charge.

This is one of a series of special reports that have been published on a semi-annual basis by Justice in Mexico since 2010, each of which examines issues related to crime and violence, judicial sector reform, and human rights in Mexico. The report was formally released on January 12, 2015 and was made possible by the generous support of the John D. and Catherine T. MacArthur Foundation.

Download the full report here.

SCJN rules international treaties have constitutional status, yet restrictions remain

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Suprema Corte de Justicia de la Nación, SCJN.

09/03/13 – After five rounds of discussions, the Mexican Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) decided to give constitutional status to international treaties signed and ratified by Mexico. At the fifth and final round of discussions, ten of the 11 Justices voted in favor of a ruling that will give human rights included in international treaties constitutional status.

In addition, with a majority of six votes in favor, the SCJN ruled that the jurisprudence of the Inter-American Court of Human Rights (ICHR) is binding for Mexican judges even if the ICHR did or does not expressly mandate or name Mexico in its ruling. This means that Mexican judges have to interpret all rulings of the ICHR, not just the ones in which Mexico has been or will be a party.

The historic ruling of the SCJN was, however, overshadowed by the decision to also maintain certain restrictions on rights imposed by the Constitution, such as arraigo. Justice José Ramón Cossío Díaz, who had repeatedly expressed that the Constitution cannot be considered above human rights treaties, voted against the draft arguing that this particular ruling does not set forth a general rule to follow when there is a conflict between a treaty and the Constitution—as could be the case for arraigo—, and thus leaves the judges to decide the matter on a case-by-case basis. With the rulling approved by the other ten Supreme Court Justices, Cossío explained that whenever there is conflict between a treaty and the Constitution, the judge will have to interpret and decide accordingly, thus altering the original purpose of the discussions to create a general rule on the hierarchy of international law human rights vis-á-vis the Constitution.

For more information on the debate regarding the hierarchy of international law within the Mexican legal system, please click here.

Sources:

Sesión Pública Ordinaria del Pleno. Contradicción de tesis 293/2011. SCJN. September 2, 2013.

Mosso, Rubén. “Corte sienta precedente en derechos humanos.” Milenio. September 3, 2013.

Otero, Silvia. “Tratados Internacionales tienen rango constitucional: SCJN.” El Universal. September 3, 2013.