By Chris Covert
The Mexican Suprema Cort de Justicia del Nacion (SCJN) or Supreme Court, said Monday that Mexican states may not use preventative detention, saying that the practice was available only to the federal government, according to Mexican news accounts.
The practice, known as arraigo, or rooting was a constitutional reform passed in 2008 in order to allow federal prosecutors a tool in dealing with organized crime. Arraigo allows the government to detain individuals incommunicado suspected in serious crimes drug crimes for up to 80 days in 40 day increments without trial or bail. Arraigo can only be granted by a federal judge, and can only be extended once by a federal judge. In past drug cases, some defendants have been detained for 20 days.
According to a La Jornada wire dispatch which appeared in the online edition of El Diario de Chihuahua news daily, the panel voted eight to two on a case brought by Comision Nacional de los Derechos Humanos (CNDH) or Human Rights Commision, concerning Article 291 in the state constitution of Aguascalientes, which permitted local and state judges to grant requests for preventative detention for serious crimes.
The SCJN members said that arraigo was intended to be applied only in serious crimes linked to drug cases. While the ruling negated the Aguascalientes law, the court said that preventative detention cases would have to be evaluated on a case by case basis. That part of the ruling means that criminal defendants are not to be released en masse until a judge has had a say in the release, but can petition the court for redress. A number of state entities have arraigo on their books including Hidalgo state.
In Mexico in the legal community, arraigo is generally considered a violation of human rights inasmuch as a judge is employed to oversee the detention. The ruling leaves unaddressed federal use of arraigo.
According to the news report, arraigo violates international human rights conventions, and it also is in direct contradiction to the SCJN ruling in 2011 that international human rights treaties have the same force as as Mexican laws in the area of human rights.
According to a Notimex wire dispatch which appeared in Milenio news daily, SCJN intends to deal with the 2011 ruling in a later session.
According to a news article in Animal Politico, 8,595 individuals have been placed in preventative detention, but only 3.2 percent have actually been convicted of a crime. In a separate news report, Mexican federal judges have denied arraigo only 4.7 percent of the time. It is unclear in the news report if those statistics are nationwide at the federal level or at both the federal and state levels. In states such as Hidalgo, crimes listed under which states have imposed arraigo include murder, robbery, extortion, abortion and rebellion.
According to Jose Antonio Guevara Bermudez, director of the Comision Mexicana de Defensa y Promocion de los Derechos Humanos (CMDPDH) or Commision for Defense and Promotion of Humans Rights, preventative detention increases the chance that a detainee will suffer physical abuse at the hands of the state. In the Animal Politico article a 2011 case is cited of Miriam Lopez, who was arrested in Ensenada, Baja California.
Senora Lopez claimed she was subjected to torture and physical and sexual abuse during the three weeks she remained in preventative detention.
Chris Covert writes Mexican Drug War and national political news for Rantburg.com and BorderlandBeat.com He can be reached at firstname.lastname@example.org