The plenary of the Supreme Court of Justice of the Nation rejected by six votes against five to interpret that the figure of informal preventive detention should be applied in a non-automatic way; as a vote by a qualified majority of eight votes was not reached, the unconstitutionality of the automatic preventive detention was not declared.
“Previously, it is argued that in order to reconcile and harmonize the human rights that are linked to informal preventive detention, it is necessary to interpret article 19 of the General Constitution together with the rest of the fundamental rights, principles and constitutional guidelines, for the purpose of to maintain coherence in the Mexican legal system and, in this way, avoid the formation of antinomies and the restriction of human rights.
“In this way, informal preventive detention should be understood as a non-automatic precautionary measure. The informal nature of the precautionary measure only means that it is a modality in which the criminal judge must open the debate to determine if the imposition of preventive detention is justified, without the need for the Public Ministry to have requested the precautionary measure. , cites the draft resolution prepared by Minister Luis María Aguilar, which did not prosper.
Ministers Arturo Zaldívar, president of the highest constitutional court, Jorge Pardo, Yasmín Esquivel, Alberto Pérez Dayán, Loretta Ortiz and Javier Laynez spoke out against the application of the unofficial precautionary measure being left to the discretion of the criminal judge, as proposed by the speaker in his new draft resolution and supported with their vote by Juan Luis González Alcántara Carrancá, Margarita Ríos Farjat, Alfredo Gutiérrez and Norma Piña.
Zaldívar explained that Article 19 of the Constitution, second paragraph, “is very clear in stating: ‘the judge will order pretrial detention unofficially’, he will order, he will not submit to discussion, he will not ponder, he will not ask the parties for their opinion; He will order the unofficial preventive detention when it is about any of the 16 crimes classified as serious.
“Once the judge or the judge links to process for these crimes, he must inevitably impose the informal preventive detention by mandate of Article 19 of the Constitution. The Constitution does not say that the judge will informally open the debate between the parties or ask the public prosecutor. To order means to command, impose or give order to something, therefore, from my point of view, it is not possible to sustain the conclusion from a grammatical interpretation of the precept”, he added.
Minister Pardo said he did not share the proposed interpretation of Article 19 because he considered “it is unnecessary for the resolution of this matter and exceeds the litigation.”
They approve changes
When resolving the unconstitutionality actions 130/2019 and 136/2019 promoted by the National Human Rights Commission (CNDH) and the minority of the Chamber of Senators, the plenary session of the court approved, instead, by majority vote, to declare the invalidity of article 167, seventh paragraph, of the National Code of Criminal Procedures, and article 5, section XIII, of the National Security Law, for misusing the category of “crimes that threaten national security” as an element to justify the imposition of a precautionary measure of informal preventive detention.
The invalidity of article 2, first paragraph, sections VIII, VIII Bis and VIII Ter, of the Federal Law against Organized Crime, was also declared invalid, because the addition made to the Federal Law against Organized Crime contravenes the principle of ultima ratio of Law Criminal, constitutes an unjustified restriction to various rights and does not find support in the constitutional logic of the subject itself.
Only the invalidity of the last precept of the Federal Law against Organized Crime will have retroactive effects to January 1, 2020, the date on which the corresponding decree entered into force.
The resolution implies that informal preventive detention will not apply to those who commit tax crimes such as contraband and its equivalent, as well as tax fraud and its equivalent, and to anyone who issues, sells, disposes of, buys or acquires tax receipts that cover non-existent, false operations or legal acts. simulated (billing); in these last two cases, provided they are amounts greater than 8.7 million pesos.
For Minister Javier Laynez, the fact that by means of secondary legislation a national security classification is made and the informal preventive detention automatically proceeds, “is a fraud against the Constitution.”
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