IACHR

Press Release

IACHR Calls on the Mexican State to Refrain from Taking Legislative Measures That Run Counter to International Standards on Pretrial Detention

January 9, 2019

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María Isabel Rivero
IACHR Press and Communication Office
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mrivero@oas.org

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) expressed its concern over various constitutional and legislative reform initiatives in Mexico that seek to expand the list of crimes for which automatic or mandatory pretrial detention can be used. These initiatives run counter to the principles governing the use of pretrial detention and effectively make it an advance prison sentence.

According to information in the public domain, during the next extraordinary period of sessions of the Congress - the Chamber of Deputies will discuss the draft decree that seeks to amend article 19 of the Mexican Constitution to expand the list of crimes that merit mandatory pretrial detention. This, after being sent to this Chamber, the initiative approved by the Senate –with 91 votes in favor and 18 against– last December 6, 2018. The crimes in respect of which the automatic application of pretrial detention is sought include sexual abuse of children, forced disappearance and disappearances perpetrated by individuals, any form of vehicle theft, the use of social programs for electoral purposes, offenses relating to hydrocarbons, petroleum products, and petrochemicals, and corruption. According to the arguments made by legislators during their debate, the main motivation for these initiatives is supposedly satisfying citizens’ demands for improvements to public security policies.

The IACHR notes that the organs that make up the Inter-American System of Human Rights have stated repeatedly that not only is the mandatory application of pretrial detention based on crime type a violation of the right to personal liberty enshrined in the American Convention, it also makes pretrial detention an advance prison sentence and constitutes unlawful interference by the legislature in the discretionary powers vested in the judiciary. In order for the pretrial detention regime to be compatible with the relevant international standards, its use should be predicated on the right to be presumed innocent, only be implemented in exceptional circumstances, and be governed by the principles of legality, necessity, and proportionality. In this regard, the IACHR reiterates that those accused of crimes can only be deprived of their liberty as part of the prosecution process, and pretrial detention can thus only be justified when there is a reasonable risk of escape or of investigations being hindered.

Given these events, both the Office of the United Nations High Commissioner for Human Rights in Mexico and the United Nations Working Group on Arbitrary Detention expressed their concern regarding the initiatives in question, which have a negative effect on various rights and guarantees and also run contrary to the obligations set out in the international treaties which the Mexican state is a party to. Likewise, the National Human Rights Commission (CNDH) publicly rejected these initiatives as it considered that they would imply “a return to an inquisition-style system that is not based on the idea of social reintegration [...] or the principle of the presumption of innocence.”

As a consequence, the IACHR calls on the Mexican state and other states in the region to repeal any legislation that orders the mandatory use of pretrial detention based on crime type. The IACHR urges the respective legislative bodies not to pass this reform, which runs counter to Inter-American standards on the deprivation of freedom and which clearly undermines the right to be presumed innocent, which is the most basic legal guarantee in criminal law and is expressly recognized by various international human rights instruments. In line with the recommendations of other United Nations bodies, the IACHR also urges the Mexican state to no longer make offenses nonbailable, as is set out in article 19 of the Constitution.

“We acknowledge the challenges and obstacles that the Mexican state is facing in its attempts to guarantee citizen security. According to the state’s international obligations, these challenges must be addressed through effective actions that conform to the standards of international instruments, particularly the American Convention on Human Rights,” said Commissioner Esmeralda Arosemena de Troitiño, the rapporteur for Mexico. “There is no empirical evidence to suggest that policies based on greater restrictions to the right to personal freedom make a real impact on reducing crime and violence,” she added.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 003/19