An indigenous woman has spent 17 months in prison in a state in southeastern Mexico without trial and without sentence, for the alleged crime of transporting drugs irregularly, and counting.
Somewhere else in Mexico, a former public official is imprisoned – who was extradited from another country to face his criminal process for illicit enrichment and corruption – under the ruling of the authorities for considering that he has all the contacts and economic resources to escape.
These are two cases in which the legal remedy that It is known as “pretrial detention”; This precautionary measure implies depriving a person who has been accused of a crime of his liberty while the legal process that he faces to reach trial and a deliberation that finds out if he is guilty or not is developed.
Pretrial detention has two different ways of being applied: informal and justified.
What is informal preventive detention?
The unofficial pretrial detention it is applied automatically with certain crimes considered as “serious”. If a judge hearing a case of intentional homicide considers it necessary, he could order the accused to be imprisoned without a prior conviction.
The serious crimes cited in Mexican legislation for which preventive detention applies are:
- Homicide
- femicide
- Violation
- Kidnapping
- human trafficking
- Sexual abuse or violence against minors
- Organized crime
- home robbery room
- Use of social programs for electoral purposes
- Corruption in the case of crimes of illicit enrichment
- Abusive exercise of functions
- Cargo transport robbery in any of its modalities
- Offenses related to hydrocarbons, petroleum products or petrochemicals
- Crimes related to forced disappearance of persons and disappearance committed by individuals
- Crimes committed with violent means such as weapons and explosives
- Crimes related to firearms and explosives for the exclusive use of the Army, Navy and Air Force
- Serious crimes determined by law against the security of the nation, the free development of personality, and health
Informal preventive detention, which is validated in the Constitution, also has time limits. Defendants cannot spend more than two years in prison without a conviction, unless the extension of pre-trial detention is due to the exercise of the defendant’s right to defense. People who have been placed in this modality and who have not received a sentence in two years will be released, without this implying the continuity of their processes or the application of other precautionary measures.
The debate surrounding preventive detention in its informal form is that it contributes to punitiveness in the penal system and to the violation of human rights. Additionally, not only does it not contribute but it hinders the processes of procurement and administration of justice.
Some civil society organizations and activists point out that depriving defendants of their liberty without a justified criminal argument and without a sentence, furthermore, encourages impunity, because by keeping an alleged culprit of a certain crime in prison, the prosecutors and authorities reduce the importance or urgency of such cases.
As in the case of indigenous women, and dozens of people who are deprived of liberty, the deprivation of liberty is carried out under prejudice rather than a trial, particularly when there are no factors that effectively prove the need to imprison the charged.
What is justified preventive detention?
Unlike the unofficial, the justified pre-trial detention it is not applied automatically only because of the type of crime in the case, but because of a more complete analysis of the risks.
Justified pre-trial detention is based on the argument that, if the accused retains his freedom under the presumption of innocence, there is a significant probability that he will abscond, that the witnesses or victims are at risk, that the evidence will be tampered with or that any other something that affects the administration of justice.
An applicable example of this measure is the deprivation of liberty cited at the beginning of the article, a former public official whose position and economic and social resources, as well as the history of detention and other factors, support the argument that his freedom would imply risks to the criminal process.
Civil society organizations point out that, in contrast to informal preventive detention, the justified modality offers an application that is more in line with the human rights of individuals, because it is not just a prejudice or an arbitrary decision that directs the motive. from prison
However, justice systems and international organizations still
Why are they in the conjunctural debate in Mexico?
The Supreme Court of Justice of the Nation (SCJN) is discussing the constitutionality of informal preventive detention in serious crimes –these are explicitly indicated in Article 19 of the Constitution and Article 167 of the National Code of Criminal Procedures–.
Although the experience in data shows that in all the years in which Mexico has used informal preventive detention as a precautionary measure, it has not managed to reduce the levels of insecurity and impunity, a large part of the population is still in favor of this resource. .
74% of the adult population considers that the accused should remain in prison during their criminal proceedings, according to figures processed by Impunidad Cero. In addition, 8 out of 10 Mexicans agree that all crimes should be punished with jail.
International experience has also shown that punitivism is not effective in reducing insecurity, violence and impunity. In Mexico, the challenge is not only in legislative matters; also in social matters.
