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Mexico: Abolish “Arraigo” Detention from Constitution

Proposals to Curtail the Practice Inadequate; Detainees at Risk of Torture

Mexico’s congress should reject a proposed constitutional change on preventive detention, Human Rights Watch said today. The proposed change, which would reduce the maximum preventive detention period from 80 days to 40, would not meet international human rights standards. Instead, Mexico’s Congress should move to eliminate the practice, known as “arraigo,” Human Rights Watch said.

“The practice of arraigo contradicts some of the most sacred principles of Mexico’s Constitution, such as freedom from arbitrary detention, gives prosecutors a perverse incentive to deprive people of their liberty before thoroughly investigating them, and undermines basic safeguards against torture,” said José Miguel Vivanco, Americas director at Human Rights Watch. “The only way to ensure more effective, professional investigations and curb the negligence and abuse that this preventive detention has fostered is to strike it from the constitution altogether.”

Under current law, prosecutors have up to four days in cases of suspected organized crime to present formal charges before a judge. Prosecutors may seek judicial authorization to detain that person for an additional 80 days before bringing charges under arraigo while prosecutors continue their investigation.

The proposal currently before Mexico’s House of Representatives would reduce the maximum period of detention under this provision to 40 days. It would also extend the maximum period of time justice officials may detain people before presenting them before a judge from 4 days to 7 in cases of suspected ties to organized crime.

Another proposal suggested to the House of Representatives would replace arraigo with another form of pre-charge detention, which the proposal refers to as “detention with judicial control.” Under this legislation, judges would be able to order the detention of suspects for up to 10 days before they are charged, whose custody would then be overseen by judges rather than prosecutors.

Neither the proposal to reduce the arraigo detention period to a maximum of 40 days, nor the proposal to replace it with up to 10 days of pre-charge detention under judicial control, complies with international human rights standards, Human Rights Watch said. Both the United Nations Human Rights Committee and the European Court of Human Rights have indicated that a period in excess of four days before a person is brought before a judge to be charged or released is prima facie too long.

While the Inter-American Court has only had to give judgment in a case involving a 15-day detention period with a 30-day maximum and ruled that it violated the American Convention on Human Rights, it has explicitly endorsed the approach of the European Court and Human Rights Committee on the importance of promptness in judicial control over detention.  

The UN Committee on Torture, the UN Group on Arbitrary Detentions, the UN Working Group on Enforced Disappearances, and the UN special rapporteur on the independence of judges and lawyers are among the international entities that have called for the abolition of pre-charge detention in Mexico.

“Any additional time before a detainee is brought before a judge for charging – whether days or weeks, and whether it is called arraigo or another name – would constitute an unreasonable infringement on fundamental rights, and will create an environment ripe for more abuse,” Vivanco said.  

Human Rights Watch has documented scores of cases in which victims have been subjected to serious abuses – including torture and rape – in the period before and during preventive detention under the existing provision. 

For example, four men from Baja California – Ramiro Ramírez Martínez, Rodrigo Ramírez Martínez, Orlando Santaolaya and Ramiro López Vázquez – were arbitrarily detained in June 2009 and taken to an Army base, where military personnel applied electric charges to their genitals, asphyxiated them, pulled out their toenails, and beat them in front of one another until they signed false confessions. The confessions were then used against the men to obtain pre-charge detention orders from a judge. They were held during that period on a military base, where they were subjected to additional abuses.

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