The discussion in the Supreme Court of Justice of the Nation on the figure of informal preventive detention will historically mark our commitment -or lack of it- with human rights.
In Mexico, 40% of people in prison do not have a sentence and a further 14% do not have a final sentence (Inegi, 2021). In other words, more than half of the people in prison are there without us being sure that they are criminals.
For decades our justice system focused on the deprivation of liberty as punishment, the probable perpetrator almost always carried his trial in preventive detention because the Penal Code contemplated an extensive catalog of crimes that deserved it. In 2008, the Constitution was reformed to create the Accusatory Penal System that privileges the freedom of individuals, points out the right to have an adequate defense and proposes alternative means for the resolution of controversies.
At the same time that the reform privileged freedom, mechanisms were also defined so that the accused do submit to their criminal proceedings (avoiding the risk of flight or obstruction of justice), and for this reason the Constitution establishes a series of precautionary measures that go from the periodic signature before the judge, to the use of electronic bracelets, justified preventive detention, among others. The definition of these precautionary measures corresponds to the judge based on the investigation accredited by the prosecution and the arguments presented by the defense.
Preventive detention can be informal – which is applied almost automatically with minimum evidentiary standards, it is only proven before the judge that it is an act with the appearance of a crime – or justified when the judge considers that the accused can evade justice. To define justified preventive detention, the judge had the risk analysis studies carried out by the SSPC (and which since 2019 stopped being done due to lack of budget).
The current administration promoted a constitutional reform that significantly expands the crimes that merit informal preventive detention. Both the UN and the IACHR have asked Mexico to reconsider the figure of informal preventive detention since it has been shown that the use of this measure does not reduce the levels of violence and does violate human rights.
The public debate about informal pre-trial detention has only confused people who, fearing for their safety, are forgetting to hold their authorities to account. The project that was presented in the Court is clear: preventive detention must be ordered when it is duly justified and motivated. That is to say, the discussion of the SCJN does not seek to eliminate preventive detention but to force the prosecution to prove to the judge the need for this specific precautionary measure, the project that is being debated in the Court does not intend to release the criminals but rather that the prosecution assumes its responsibility to conduct the investigation and prosecution of crimes.
Insecurity will not worsen with the disappearance of informal pretrial detention, but by eradicating this figure, the prosecution will have to demonstrate why it is asking the judge to order a defendant to pretrial detention, and the SSPC must carry out risk analyzes so that the judges have more information as established by law. The reality is that it is easier for the authorities to incarcerate than to investigate because the figure of informal pre-trial detention does not require the prosecution to prove practically anything, that is where the violation of human rights and its unconstitutionality lies.
Informal preventive detention has not made Mexico safer, but it has made it a more unjust country. It is in the hands of the ministers to ensure justice and force the authorities to fulfill their responsibility.
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