Mexican Supreme Court restricts preventative detention

By Chris Covert
Rantburg.com

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 grurkka@gmail.com

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Proposal advances in Mexico to limit preventative detentions to 8 days

By Chris Covert
Rantburg.com

A new law is advancing in the Mexican national legislature which could limit preventative detentions to eight days, according to Mexican news accounts.

A news report which appeared on the website of El Sol de Mexico news daily last Saturday said that Partido Revolucionario Institucional (PRI) deputy coordinator of the senate, Arturo Zamora Jimenez, Mexican senators are discussing limiting the prosecutorial maneuver of arriago, or preventative detentions to just eight days.

Arturo Zamora Jimenez

Current law permits Mexico's Procuraduria General de la Republica (PGR) or national attorney general to detain suspected criminals for up to 40 days without charge or trial.  The maneuver is colloquially known in Mexico as "rooting", and is typically used against suspected drug traffickers and corrupt government officials.

Arraigo can only be imposed with the consent of a Mexican federal judge and can be extended under certain conditions for up to 80 days.

According to a news report which appeared on the website of Animal Politico news website Saturday, Zamora Jimenez said that the law violates Article 17 of the Mexican Constitution which limits detentions by the PGR to just 48 hours.  The procedure, according to the senator violates criminal defendants right to a speedy trial.

Mexico has a Napoleonic law which means that criminal defendants who are detained begin serving time for their crime immediately, but may be released if they can prove their innocence.

According to the article, Zamora Jimenez wants to limit use of arraigo to only drug traffickers and organized crime defendants.

During the term of President Felipe Calderon, drug traffickers could and were routinely  be held incommunicado on military bases until the investigation of the prosecutor was complete.  Arraigo has been used against government officials as well. In the case of the massacres in La Laguna during 2010, prison officials in Durango's Centro de Readaptacion Social Numero 2 prison in Gomez Palacio, Durango, were detained for 20 days after it was learned that they had spent months permitting prisoners passes at night in order to attack Los Zetas facilities in La Laguna.  Those series of massacres cost the lives of more than 30 individuals in 2010.

Prison director Margarita Rojas Rodriguez was ordered detained for 20 days, and then was sentenced three months later to serve time in a prison in Nayarit.  Ten other officials were eventually sentenced for their tole in the massacres as well.

Another example of the use of arraigo is Jose Antonio Acosta Hernandez, AKA Diego, one of the bloodiest capos in Mexican Drug War history, who was ordered detained for 40 days for his role in more than 1,500 murders during his reign of terror between 2007 and 2011 in Chihuahua state.

Arraigo is part of the Mexican Article 139 of the Code of Criminal Procedure of the State, and not part of the Mexican Constitution.  Part of the law, according to an article entitled El Arraigo es Opesto al Principio de Presuncion de Inocencia, or Rooting is opposed to the principle of presumption of Innocense, found on the website of www.poderjudicial-gto.gob.mx/  by Laura Patricia Ramirez Molina, only freedom of movement of the detainee may be constricted.  The government is not allowed to seize property, but is only allowed to detain the suspects for the time period to enable prosecutors to complete their investigation.  In practice, prosecutors also limit detainees contact with the outside during the term of their detention.

In the article Ramirez Molina proposed the use of electronic means of tracking criminal suspects detained under arraigo.

The article can be found here (PDF download).

According to the article, Ramirez Molina said that arraigo violates Articles 14, 16 and 19 of the Mexican Constitution.  It should be noted that Mexican criminal procedure in practice doesn't allow the presumption of innocence in that criminal defendants must prove their innocence.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com

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