Supreme Court bans the use of arraigo at the state level

SCJN. Image: Centro Juridico Para Los Derechos Humanos

SCJN. Image: Centro Juridico Para Los Derechos Humanos

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.

SCJN rules international treaties have constitutional status, yet restrictions remain


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.


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.