The Working Group of the Office of the UN High Commissioner regrets that arbitrary detention remains widespread in the country.
GENEVA – The Working Group on Arbitrary Detention of the Office of the UN High Commissioner for Human Rights noted that arbitrary detention remains a widespread practice in Mexico and expressed its deep concern about the militarization of public security, the concept of preventive detention, and the abuse of force during detentions in the country. At the invitation of the Government, the Working Group on Arbitrary Detention visited Mexico from the 18th to 29th of September 2023. The UN Working Group identified positive developments, including: the 2011 constitutional amendments that placed human rights at the center of the Constitution, the transition since 2008 to an accusatory model of criminal justice, the extension of protection to internationally recognized human rights, the 2016 National Law on Criminal Enforcement, the introduction of a National Registry of Detentions, the amendment of laws in 2014 to establish restrictions on the administration of justice by military courts, the National Commission and state human rights commissions that have their legal basis in the Constitution, as well as the creation of the National Mechanism for the Prevention of Torture.
However, the Working Group noted that “arbitrary detention remains a widespread practice in Mexico due to a variety of causes and aggravating factors, both in the regulatory framework and in its implementation.
The Working Group identified several challenges within the criminal justice system that put defendants at risk of arbitrary detention, namely:
a) The Constitution provides for the acts of preventive and pretrial detention, which have already been considered a violation of human rights in several of the opinions of the Working Group as well as by the Inter-American Court of Human Rights.
b) The militarization of public security has been closely linked to the increase in serious human rights violations such as the increase in violence against detainees, including torture, disappearances and homicides.
c) The deadline for bringing persons deprived of liberty by arrest or detention before the judicial authorities is not counted from the arrest but from the presentation of the detainee to the Public Prosecutor’s Office, thus exceeding the 48-hour limit. This violates the right of persons deprived of their liberty to be brought promptly before a judge under Article 9, paragraph 3, of the International Covenant on Civil and Political Rights and has a negative impact on the right of persons deprived of their liberty to apply to a court for a prompt decision on the legality of their detention, in accordance with Article 9, paragraph 4, of the Covenant; A/HRC/57/44/Add.1 17.
(d) The extended interpretation of the crime of flagrante delicto, as well as the concept of flagrante delicto by pointing, are open to arbitrariness, which violates Article 9, paragraph 1, of the Covenant.
(e) The punitive approach to drug use and drug dealing persists. Although there are positive initiatives such as the Amnesty Law, there are also other constitutional reform initiatives to extend informal preventive detention to drug dealing and other crimes related to synthetic drugs. This approach has led to increased violations of the right to liberty and due process guarantees.
f) The right to legal assistance is limited as many people receive poor quality legal services, public defenders are underfunded and understaffed, and calls from prison to lawyers by detainees are not provided free of charge. In addition, cases have been reported of people being pressured by their public defenders to accept responsibility and follow the abbreviated procedure route.
This, it claims, contravenes Article 14, paragraphs 2, 3 b) and g) of the Covenant.
g) There have been reports of members of the Executive putting pressure on judges, particularly when those judges have ruled that the actions or initiatives of the Executive contravene the law. In addition, the federal judiciary is facing severe budget cuts.
h) The judicial remedy of injunction (habeas corpus), despite having great potential to guarantee respect for human rights, has its deficiencies, which do not allow it to be an effective remedy against arbitrary detention in accordance with Articles 2, paragraph 3, and 9, paragraphs 3 and 4, of the Covenant.
i) Safeguards and conditions of detention vary from one facility to another. There have been reports of sentenced persons often being housed with persons in pretrial detention, in violation of Article 10 of the Covenant. Furthermore, corruption was reported in several of the establishments visited and the conditions of detention are not in line with international standards, in particular rules 12, 14, 19, 22, 23, 24 and 45 of the Nelson Mandela Rules, referring to isolation, overcrowding or access to health services, among others.
No information was obtained on the existence of specific protocols to address the needs of vulnerable populations, such as LGBTI+ people, it underlines.
j) The discrimination suffered by several members of Indigenous Peoples has led to their arrest and subjection to violence by security forces. In many cases, they are detained for exercising and defending their rights, which could potentially contravene articles 2, paragraph 1, and 26 of the Covenant.
In relation to detention in the context of migration, the Working Group notes the following shortcomings:
1) Detention of migrants is not carried out on an exceptional basis and a significant number of migrants are detained beyond the legal limit of 36 hours, which increases the risk of arbitrary detention.
2) Although national law does not allow children to be detained for immigration reasons, in practice they are deprived of their liberty, either in shelters exclusively for unaccompanied minors run by the National System for the Integral Development of the Family or in facilities shared with immigration centers.
3) Migrants are subjected to extortion and bribery by officials in order to allow them to continue on their way. In relation to juvenile justice, a significant number of cases were reported where adolescents experienced considerable violence during their arrests and where they did not have access to properly qualified legal assistance in accordance with Article 40, paragraph 2, of the Convention on the Rights of the Child. A/HRC/57/44/Add.1 18 82.
With regard to the detention of persons with psychosocial disabilities, it is worrying that not all procedural guarantees are respected in proceedings that may result in custodial sentences and that involuntary confinement (institutionalization) remains a common practice.
Recommendations of the UN Working Group on Arbitrary Detention
The UN Working Group of Experts recommends that the Government adopt the following measures in relation to the criminal justice system:
a) Repeal the unofficial preventive detention in the Constitution and harmonize the figure of preventive detention with international human rights law, establishing that it can only be applied based on an individualized assessment that demonstrates the risk that the accused will flee, commit a serious reoffending or manipulate evidence or witnesses.
b) Recommends eliminating the preventive detention procedure in the Constitution and ending its use as a basis for detention.
c) Ensure the progressive demilitarization of public security activities and guarantee that the intervention of the Armed Forces in these functions is strictly extraordinary, complementary and subordinate to civilian authority.
d) Also, adopt measures to prevent, investigate and eliminate all forms of excessive use of force during detentions.
e) Harmonize internal regulations on flagrante delicto with human rights law, and not make use of extended interpretations of the crime in flagrante delicto.
f) They ask to guarantee that detainees appear before a judge within 48 hours of their arrest, and that any longer delay be exceptional and justified by the circumstances.
g) Strengthen public defense, assigning the necessary material and human resources for the proper fulfillment of its functions
h) They recommend that the 4T ensure the allocation of the necessary human, economic and material resources so that the judicial branch of the federation, local judicial powers and public defenders can adequately attend to the processes in which the freedom of people is at stake.
Likewise, to re-assume a political commitment to guarantee judicial independence, including it as a principle in the actions of all State authorities
j) In addition to guaranteeing that the injunction trial is an effective resource based on international standards on the right of access to justice; A/HRC/57/44/Add.1 19 k)
k) Take measures to end prison overcrowding and ensure adequate time and facilities for detainees to exercise and prepare their right to a defense.
l) Hold consultations to establish specific protocols for the care of LGBTI+ persons deprived of liberty.
m) Strengthen actions to eradicate corruption in prisons.
n) Consider abandoning the punitive approach to drug use and drug dealing policy and seeking alternatives to detention in this context.
The Working Group recommends that the Government of Andrés Manuel López Obrador “ensure that adolescents held in pretrial detention centers receive educational and stimulating activities, and are guaranteed qualified legal assistance.
The Working Group recommends that the Government of the 4T adopt the following measures with respect to the detention of indigenous peoples:
a) Redouble efforts so that indigenous people subject to criminal proceedings are assisted by interpreters, translators and defenders who have knowledge of the language and culture. Carry out care protocols for indigenous people in penitentiary centers;
b) Strengthen the necessary measures so that leaders and defenders of indigenous peoples can carry out their work without fear of criminal sanctions.
The Panel of Experts recommends that the Government take the following measures in relation to detention in the context of migration:
a) Ensure that detention in the course of migration is applied exceptionally, for the shortest possible time
b) Review the Migration Law so that the legislation clearly specifies the upper limit of permissible detention (36 hours) at the end of which persons must be unconditionally released, in accordance with the ruling (injunction under review 388/2022) of the Supreme Court of Justice of the Nation.
c) Immediately remedy the unsatisfactory prison-like detention conditions for migrants, in accordance with international norms and standards and guarantee access to outdoor areas.
d) Take all necessary measures to end administrative detentions of migrant children.
e) Take immediate measures to end practices of extortion and bribery of migrants by Mexican officials.
The Working Group recommends that the Government adopt the following measures in relation to the detention of persons with psychosocial disabilities:
a) Make the necessary changes to the criminal legislation in relation to the figure of non-imputability and the Special Procedure for Non-Imputable Persons to ensure respect for the guarantees of due process for persons with disabilities and in line with the right to personal liberty.
b) Adopt all necessary legislative, administrative and judicial measures to prevent and remedy involuntary or disability-based internments. All health and support services, including all mental health care services, should be provided on the basis of the free and informed consent of the person concerned.
These recommendations extended to the Mexican government would have to be addressed by the new government of President-elect Claudia Sheinbaum in light of the international treaties to which Mexico is a party.
Original article by Gabriela Sotomayor, Proceso, September 17, 2024.
Translated by Schools for Chiapas.