I am writing to thank you for your response to our letter of March 6, 2008, expressing Human Rights Watch’s observations to the justice reform package that was approved by the Mexican Congress that day. We value your government’s stated commitment to human rights. However, your administration’s response does not address our fundamental concerns regarding the constitutional reform proposal. In light of the recent approval of the reform package by a majority of state legislatures, your government must take necessary steps to adopt measures that would prevent serious human rights abuses.
In two letters from Mr. Miguel Alessio Robles, legal counsel for the executive, and Ambassador Patricia Espinosa, foreign affairs minister, your government highlights the positive aspects of the approved justice reform. As stated in our original letter, we agree that the reform is, in some respects, an historic step forward for Mexico, as it creates the basis for an oral and adversarial justice system and contains measures that are critical for promoting greater respect for fundamental rights.
Your government’s response justifies measures we criticize in our letter—specifically, the proposals to extend pre-charge detention to up to 80 days and to include a list of crimes for which pretrial detention is mandatory—stating that they are “exceptional” and thus compatible with international law. However, the “exceptionality” of these measures does not make them compatible with international standards.
Of particular concern is the proposal to allow prosecutors, with judicial authorization, to detain individuals suspected of participating in organized crime for up to 80 days before they are charged with a crime. This proposed 80-day limit for pre-charge detention would be, by far, the longest of its kind in any Western democracy. In other countries, the limit for any form of pre-charge detention, or preventative detention, is generally less than seven days. Detention without charge for such a long period of time violates the fundamental right to liberty and security of the person and the associated protections against arbitrary detention enshrined in international law. Even if exceptional, this 80-day limit is excessive. This standard has been made quite clear in the international jurisprudence from both the UN and regional human rights bodies to which we drew your attention in our first letter.
Another problematic proposal for which the “exceptionality” argument does not apply is the one that denies judges the power to decide, in cases involving one of a prescribed list of offenses, whether a defendant should remain in jail or be provisionally released pending and during trial. When there is no possibility of obtaining pre-trial liberty, the detention of accused but unconvicted persons ultimately impinges on the presumption of innocence, whether this applies to a long list of crimes, or just a few.
I would like to reiterate that the reform package contains historic measures that could greatly strengthen Mexico’s justice system, so long as it is adequately implemented. However, the two provisions discussed in this letter regarding pre-charge and pre-trial detention, will need to be modified in order to prevent serious human rights abuses in the future.
Sincerely,
/s/
José Miguel Vivanco
Executive Director
Americas Division
