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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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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