Preventive Detention in Mexico

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The elimination of automatic preventive detention represents the risk of releasing 68,000 people.

Automatic preventive detention, as contemplated in Article 19 of our Constitution, is a topic of great relevance in the current debate on justice in Mexico, due to its implications for the significant number of organized crime members (around 68,000) associated with this condition. This measure, which allows the automatic detention of a person accused of certain serious crimes before a sentence is pronounced, has its roots in legal systems that have sought to balance public safety and individual rights.

Since the times of Ancient Rome, where similar measures were used to ensure the appearance of the accused, to modern democracies that try to protect society, the use of preventive detention has been a constant subject to evolution and debate. In the United States, for example, criminal justice system reform has sought to limit the excessive use of preventive detention, arguing that it disproportionately affects minorities and low-income individuals. In Europe, the European Court of Human Rights has intervened on multiple occasions to ensure that preventive detention measures do not violate the fundamental rights of the accused, promoting a more balanced and justified application.

In Mexico, this figure has been defended as a crucial tool to confront high-impact crimes, but it has also been questioned for its potential conflict with fundamental principles of justice and human rights. The flagrancy and, in some cases, the risk posed by murderers and femicide perpetrators of continuing to cause harm are evaluated punctually, and if they are people who generate that risk, we must isolate them from society through imprisonment.

Automatic preventive detention has been justified as an essential measure to guarantee public safety, by preventing the flight of those accused of serious crimes such as homicide, kidnapping, rape, and femicide, ensuring that they face justice and do not evade the consequences of their actions. In many cases, victims of serious crimes fear for their safety if the accused remains at large; in this sense, preventive detention ensures that witnesses can testify without fear of retaliation, thus strengthening the judicial process.

Of the approximately 68,000 people currently in Mexico under automatic preventive detention, a large part is related to high-impact crimes. For example, about 11,640 people are accused of homicide, 7,150 of kidnapping, and 5,617 of rape. The release of these individuals could represent a serious risk to public safety and confidence in the judicial system. Moreover, without this measure, courts could be overwhelmed by having to individually review each case to determine the need for preventive detention, which could lead to an overload of activities in the justice system.

As we advance in this debate, it is important to reflect on whether automatic preventive detention is truly acceptable in a society that values both security and human rights. From the Attorney General’s Office of Justice of Mexico City, we deeply understand and value the need to protect society from serious crimes, while ensuring that the accused face justice. We also recognize the importance of aligning our legal practices with international human rights principles and the Constitution.

There are those who consider that automatic preventive detention may violate rights such as the presumption of innocence, and those who consider that we must maintain it as a restrictive measure against those who harm society.

From our perspective, eliminating automatic preventive detention represents the risk of releasing 68,000 people associated with organized crime offenses. Meanwhile, at the Attorney General’s Office of Justice of the City, we will continue working on our requests for justified preventive detention to avoid impunity, guarantee victims comprehensive reparation for damage, non-repetition, and of course, access to justice.

By Ulises Lara López

Source: El Universal