Meet Eduardo Osorio, the Mexican judge daring to usher in a ‘new era of human rights’

Few other judges interpret the law the way Osorio does — and his refusal to use mandatory pretrial detention has put him at the forefront of a divisive national debate over how to balance public safety with human rights.

The debate stems from two constitutional reforms adopted by Mexico in the early years of the 21st century. A reform in 2008, which codified Mexico’s mandatory pretrial detention system, also introduced an American-style adversarial system to Mexican criminal trials, placing the onus of impartiality on judges and the burden of proof on public prosecutors. Prior to that, Mexico used an inquisitorial system in which the judge in a case operates like an investigator, rather than an impartial arbiter. 

Another reform in 2011, this one focused on human rights, incorporated precepts stipulated in international treaties Mexico has signed into the rights established in its constitution. The reform compelled authorities to adhere to what’s known as the “pro homine principle” of international human rights law, under which defendants are entitled to the most favorable protections in cases concerning human rights.

That second reform led to a paradox in the Mexican Constitution over mandatory pretrial detention. While the constitution orders it be applied for certain crimes, imprisoning someone without a guilty verdict contravenes the right to the presumption of innocence and others outlined in the American Convention on Human Rights. 

Mexico’s Supreme Court ruled in 2013 that international treaties like the American Convention on Human Rights are hierarchically below the constitution. The majority of the country’s judges interpreted this to mean that they should continue to apply mandatory pretrial detention.

Osorio disagrees. For him, the focus on human rights that came with the 2011 reform led him to interpret the constitution in a way that protects the rights of the accused. 

“The pro homine principle is a tool for resolving these kinds of conflicts,” he said.

After spending 17 years in prison, García Rodríguez knows perhaps better than anyone the toll that mandatory pretrial detention can take on a person’s life.

The unlawful and protracted prison term ruined his family financially. His parents sold everything they owned to pay lawyers to try and get him out, but still he languished in prison for years.

“The worst damage that mandatory pretrial detention does is not on the one imprisoned, but on the family,” he said. “My father not only died poor, but sad, as did my mother.”

García is grateful that judges like Osorio are doing what they can to put a stop to mandatory pretrial detention. His case was among two cited by the Inter-American Court of Human Rights in its ruling against mandatory pretrial detention.

“Having been subjected to these atrocities, I’m very happy to learn about judges like Osorio, who defend their position with legal arguments,” García said. He first met Osorio at a recent conference in Querétaro, where he signed a copy of the Inter-American Court’s ruling for the judge. 

“Thank you for the families whom your actions have allowed not to suffer,” García wrote.

García’s case was extreme, but it is by no means one of a kind. Mandatory pretrial detention has been used to lock up over 90,000 people without convictions, according to some estimates. 

Mexico’s mandatory pretrial detention is just one part of what critics see as broader systemic issues in Mexican courts. As García sees it, the tool puts people’s freedom in the “corrupt hands” of public prosecutors, who despite a constitutionally mandated two-year limit often jail citizens for indefinite periods of time without conducting an investigation.

Some — including legal scholars like Sergio López Ayllón — say the mechanism disincentives prosecutors to investigate, since they already have a person in custody. He calls mandatory pretrial detention “a subsidy for the inefficiency of public prosecutors.”

“Prosecutors say that it gives them more control over an investigation, but in reality it is a way for them to keep a person who possibly committed a crime sequestered,” he said. “And since they don’t have the tools to investigate, the only thing left for them to do is to pressure people to confess so that the process can continue.”

Osorio agrees, noting prosecutors sometimes pressure suspects into confessing or taking a plea bargain, using mandatory pretrial detention as leverage as they pad their records. 

“It’s a check mark for prosecutors,” he said. “They get another sentence and don’t have to investigate.”

The idea that the state should not only trust the accused to return to court on their own but that it should support them in their efforts to avoid recidivism is not a popular one in Mexico. But Osorio’s record should allay popular fears that the elimination of mandatory pretrial detention will flood the streets with criminals.

Those who fail to return to future hearings account for less than 5% of the defendants he sees in court, Osorio says. “People do comply.”

Osorio doesn’t consider himself a leader in Mexico’s judicial transformation. Instead, he says he is merely “assuming the role” that all of the country’s judges have in the new adversarial legal system. 

“We must go all-in on this new system,” he said in an interview. “We have to commit to it.”

Observers, however, do not shy away from praise.

“He’s a rockstar,” said judicial assistant Julio César Betanzos. “He was the first judge to dare to stop applying mandatory pretrial detention. Before the rulings of the Inter-American Court, he was the first to start talking about this issue.”

Román Lazcano, national coordinator of the Forum of Constitutionalists of Mexico, said that Osorio’s integrity is evident in his rulings. 

“The country and its judiciary need brave judges like Eduardo Osorio, who strictly adhere to what is in their rulings, who don’t let themselves be influenced by political pressures, and who issue decisions based on due process,” Lazcano said. 

But as Osorio works to reform Mexico’s court system from within, he’s faced powerful opposition — including from the country’s executive branch.

While the 2008 reform cut back on the number of crimes warranting mandatory pretrial detention, Mexico’s congress greatly expanded that list at the beginning of current President Andrés Manuel López Obrador’s administration. Analysts have said that López Obrador uses the mechanism as a tool for political intimidation.

President López Obrador, for his part, opposes ending mandatory pretrial detention. Describing Mexico’s judiciary “rotten,” he has criticized Osorio by name multiple times in his daily morning press conferences. 

Nor have the attacks only come from Mexico’s most powerful official. In August, Osorio was featured in a morning press-conference segment called “Zero Impunity” for what critics called the illegal nullification of a search warrant in a drug and weapons possession case. A couple weeks later, Mexico’s fiscal attorney general accused him of delaying a decision in a tax fraud case. 

Osorio declined to comment on executive branch accusations against him. Since all of the hearings at the Querétaro federal courthouse are recorded and open to the public, Courthouse News was able to review the hearing involving the search warrant that Osorio supposedly illegally nullified. 

In that hearing, Osorio found several procedural irregularities with the warrant, including a lack of evidence to sustain an anonymous report that led to the search. He advised prosecutors that he was following the precepts of the adversarial system implemented by the country in 2008. 

In addition to angering top Mexican officials, pushing prosecutors to show that a defendant is a risk also hasn’t won him many friends among the prosecutors who bring cases to him, according to Claudio Calderón Ochoa, head administrator at the Querétaro federal courthouse. 

Prosecutors challenge the rulings they do not agree with, but all come back approved by a higher court, Calderón said. “This means that what he is saying is correct and conforms to the appropriate interpretation,” he said.

“People like Osorio are creating an openness, revitalizing the discussion and constructing a path to a novel jurisprudential interpretation in Mexico,” said Simón Hernández León, the lawyer representing García in the case involving almost two decades spent in pretrial detention. 

Change is unlikely to come through the courts or the current legislature, Hernández said, and will instead require “at least a different composition of the Congress and a different posture from the one the current president has.” Still, he thinks the change will come eventually. 

“The case of Daniel García and Reyes Alpízar has come to redefine all of our understanding of constitutional supremacy in Mexico,” he said. “It represents a new legal paradigm.”

While Mexico’s court system is still far from immune from corruption and impunity, Osorio is on a mission to show that it is changing for the better. 

There are signs that what Osorio helped start in November 2021 has caught on elsewhere. In July, a regional tribunal eliminated mandatory pretrial detention in 18 states. And the cases to reform it came before Mexico’s Supreme Court twice last year.

Finishing that job may require changing hearts and minds, which in turn could require better media coverage of the court system. 

Today, many in the Mexican public view accused criminals as automatically guilty — and therefore worthy of being thrown into prison. Jaded by decades of substandard court procedures, Mexicans need to get warm to the idea that an indictment is not the same as a conviction.

The first step in that task will have to be done by the media. “In the more than 20 years I’ve been working here in Querétaro, I have never seen a reporter come to a hearing,” said Bertha Elizabeth Cruz, a federal public defender at the courthouse.

Osorio is clear-eyed about the difficult work in front of him. As he sees it, Mexican society itself will have to change its conception of what criminal justice looks like. 

“If a person who is on trial isn’t in prison, people get angry and think it’s impunity,” he said — but “being on trial does not entail impunity.” Instead, he says impunity happens when a person who has been found guilty evades sentencing.

As for the thousands currently behind bars without convictions, Osorio thinks that all of their cases should be reviewed individually. 

“These are people with the presumption of innocence,” he said. “We shouldn’t think that we can’t do anything about it just because there are a lot of them.” As he continues his work to reform criminal justice in Mexico, he’s guided by a simple philosophy: “It’s all about behaving in a way that is respectful of human rights.”

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