MEXICO CITY (CN) — In the wake of the Mexican Supreme Court’s failed attempts to invalidate mandatory pretrial detention, a regional tribunal recently eliminated the mechanism in 18 states.
The Council of the Federal Judicature has yet to publish the text of the tribunal’s ruling, but said in a July 14 press release that judges in the states “must grant provisional suspension with restitutional effects in advance guardianship when a writ of amparo is filed in a case of mandatory pretrial detention.”
A writ of amparo is similar to habeas corpus in U.S. law. Those who receive a suspension will see other precautionary measures used, such as house arrest or ankle monitors to ensure they show up for their court dates.
While several high court attempts to deem the measure unconstitutional last year failed, a January ruling from the Inter-American Court of Human Rights found that mandatory pretrial detention violates the American Convention on Human Rights, to which Mexico is signatory.
Mexican judges, the Inter-American Court said, must interpret decisions on cases involving mandatory pretrial detention in a way that aligns with the convention, which is to say, against imposing the mechanism.
The regional tribunal’s decision was hailed by human rights advocates in Mexico as a step in the right direction to guaranteeing the basic human right to the presumption of innocence.
“This is a huge advance,” said Adriana E. Ortega, head of data collection and analysis at Intersecta, a feminist human rights organization based in Mexico City. “We were very happy to see the ruling. It’s almost hard to believe. Had you asked me a year ago, I’d have said we were much further away from seeing something like this.”
Intersecta filed an amicus brief in one of the cases before the Supreme Court in August 2022. The organization estimates that mandatory pretrial detention has resulted in up to half of Mexico’s prison population being incarcerated without having been charged or sentenced for a crime.
It also found that the mechanism disproportionately affects Mexico’s poorest, who lack the resources necessary for gaining their freedom, such as money to hire a lawyer or even basic knowledge of how the penal system works. Many are women who were arrested as alleged accomplices to crimes committed by their male partners.
“We’re talking about thousands and thousands of people,” Ortega said, noting the importance of the region covered by the tribunal, which includes Mexico City and adjoining Mexico State. “This is a large segment of the penitentiary population.”
Legal scholars likewise praised the decision, saying that although it is not the ideal solution, it will be seen as a momentous ruling in a long struggle to bring justice to Mexico’s penal system.
“This is a sub-optimal, but very important decision,” said Javier Martín Reyes, a constitutional law professor at Mexico’s National Autonomous University.
He stressed the fact that the ruling had yet to be published and that any analysis of the decision must take into account that only a press release has been made public so far.
“I’d still have to see the text of the final ruling, but this is a good solution, because with mandatory pretrial detention, you’re playing with people’s freedom,” he said. “In terms of human rights, this concept should not exist and should not be applied.”
Despite the advance, significant obstacles still remain for the thousands in Mexico locked up without sentences. A suspension can only be granted to those who file a writ of amparo, which requires one to hire a lawyer.
“Unfortunately, the ruling does not entail that the articles in the Constitution and the national penal code mandating pretrial detention should be disregarded in all cases,” said Isaac Martínez, legal director at the Mexico City-based anti-corruption organization Tojil.
Mexico’s Congress must also do its part in the elimination of mandatory pretrial detention, Martínez said, adding that were it to do so, “it would be unnecessary for people to file a writ of amparo and request a suspension of the mechanism in order to gain their freedom.”
Mexican President Andrés Manuel López Obrador has opposed the elimination of mandatory pretrial detention, claiming that such a move would cause a wave of criminals to flow out of Mexico’s prisons.
“I doubt this will lead to an exodus or mass liberation of people,” said Ortega, of Intersecta, pointing to the barriers that still remain for those in mandatory pretrial detention.
The ruling appeared to put some wind in the sails of people who often find it hard to have faith in jurisprudence in Mexico and the enforcement power of a body like the Inter-American Court of Human Rights, which is located in San José, Costa Rica.
“This didn’t happen in a vacuum,” Ortega said.
Martínez called it an “adequate measure by the judiciary to begin to comply in some way with the rulings of the Inter-American Court.”
Reyes, the university professor, lauded the lower court judges for adhering to the international court’s decision and “setting an example for the Supreme Court.”
In addition to the aforementioned federal entities, the ruling also applies to the following 16 states: Nuevo León, Tamaulipas, Coahuila, Sonora, San Luis Potosí, Baja California, Baja California Sur, Sinaloa, Chihuahua, Durango, Guanajuato, Zacatecas, Querétaro, Nayarit, Aguascalientes and Tlaxcala.
Follow @copycopeland
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
