On January 15, 2020, the National Prosecutor Alejandro Gertz Manero and the president’s chief legal adviser, Julio Scherer, announced upcoming justice system reforms allegedly aimed at reducing impunity and recidivism. A draft text that had leaked a few days earlier and circulated widely appears to be an official document, despite the fact that Gertz said it had not been presented by his office and a final version would be presented before Congress in February. The proposal includes regressive and abusive measures that would allow prosecutors to use evidence obtained through torture, detain anyone for up to 40 days without charges, and once charged, place the accused in pretrial detention without judicial review.
“These proposed changes would significantly increase prosecutors’ authority at the cost of eliminating hard-won protections to safeguard fundamental rights,” said José Miguel Vivanco, Americas director at Human Rights Watch. “No genuinely law-respecting government should be looking to remove human rights safeguards, especially given the deplorable history of abuses by Mexican police and prosecutors.”
One of the most controversial proposed measures would be to expand an existing provision of law (arraigo) under which prosecutors may seek judicial authorization to detain a person for up to 40 days before bringing charges while they continue their investigation. The current law only permits such requests in organized crime cases, but the proposed changes would allow prosecutors to seek prolonged pre-charge detention for any crime, without bringing charges.
Human Rights Watch has previously urged Mexico to abolish the practice, since it contradicts the constitutional guarantee of freedom from arbitrary detention and violates international human rights standards. Human Rights Watch has documented scores of cases in which victims have been tortured, raped, or otherwise ill-treated before and during such detention.
Another controversial measure would make it easier for prosecutors to use evidence obtained through torture or other illicit means such as illegal wiretaps. The Mexican constitution says that any evidence obtained through the “violation of human rights” is considered illegal, meaning it is inadmissible in court. The proposal would add language to the constitution effectively giving judges complete discretion over whether to allow use of illegally obtained evidence in trials as long as “mitigating circumstances exist in its link to illegality.”
Precisely due to the widespread use of torture by Mexican authorities to obtain evidence and confessions, in 2017 the Mexican Congress passed a General Law on Torture. The law banned the use of evidence obtained under torture in criminal proceedings, created a national registry of torture cases and a National Mechanism to Prevent Torture, and required states to adopt similar legislation and create special prosecutor’s offices. Although implementation of the law has been slow, the proposed changes would undo all progress on this issue, Human Rights Watch said.
The proposed reforms would also eliminate the requirement that it be judges, having heard any challenges by the accused, who reach a determination on whether the evidence justifies the beginning of a formal investigation into the accused (the process of vinculación a proceso).
Article 19 of the Mexican constitution states that no one may be held for more than 72 hours without this judicial review. The proposed change to article 19 would eliminate both the judges’ role and the 72-hour limit. It would mean that if a suspect is charged with a crime that mandates pretrial detention, they could be automatically detained for the duration of the investigation and trial without judicial oversight of, or a chance to challenge, the evidence against them. Over the past year, the López Obrador administration has significantly expanded the list of crimes that call for mandatory pretrial detention to include tax fraud, burglary, election fraud, cargo theft, fuel theft, and many others.
As of 2018, people in pretrial detention made up around 40 percent of Mexico’s prison population, according to World Prison Brief. Human Rights Watch has contended that Mexico’s use of mandatory pretrial detention violates both rights to liberty and personal security and the presumption of innocence.
According to a UN report, 98 percent of crimes in Mexico go unsolved. In his first annual report, the National Prosecutor announced that more than 63,000 of the 300,000 cases he inherited from his predecessor had been left uninvestigated for so long that their statutes of limitations had expired.
Mexico has made a number of changes in its judicial system over the past decade aimed at reducing impunity and increasing transparency and respect for human rights. When Gertz announced the new proposals, he contended that past changes had contributed to “multiplying the number of delinquents” and that, while the prison population had been reduced, this had “multiplied the damage to society.”
The proposed changes would reverse progress made by Mexico in its judicial system in recent years. Increasing mandatory pretrial detention does little to reduce crime. At the same time, making it harder to use confessions obtained through torture as evidence forces police to conduct better criminal investigations, Human Rights Watch said.
