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V. Law Enforcement: Ongoing Abuses that Undermine Public Security
If Mexico no longer engages in political violence as a matter of state policy, it does still tolerate, encourage, andin some caseseven mandate human rights abuses in the name of public security. The most notorious of these abuses is the use of torture by law enforcement agents to obtain confessions from criminal suspects. Another is the systematic misuse of preventive detention that results in innocent people being locked up with hardened criminals for months on end.
One of the most important initiatives of the Fox presidency has been a proposed overhaul of the justice system that wouldamong other thingsaddress the root causes of these two problems. While the reform package also contains several flawed provisions, the specific measures aimed at curbing the use of torture and excessive use of preventive detention are urgently needed.
Unfortunately, these proposed reforms have languished in Congress for over two years, and their prospects for passage in the near future do not seem promising. That could change, however, but only if some of the countrys political leaders prove willing to publicly counter what is the single most salient obstacle to progress in this area: the common misperception that public security and human rights are conflicting priorities.
Public insecurity is a top concern of the Mexican public, as well it should be. Mexicans have a fundamental right to protection from crimeas well as a right to justice when they are victims of crime. Yet there is a broad consensus in Mexico today that the state has largely failed to provide either. This consensus has fueled widespreaddiscontent within Mexican society, which manifested itself most dramatically during the Fox presidency in one of the largest public demonstrations in recent Mexican historythe 2004 Citizens March Against Delinquency and Impunity.
Politicians and public security officials routinely respond to this legitimate demand by promising to get tough on crime. They pass laws imposing harsher sentences. They boast of the number of criminals thrown in jail every year. They increase the number of crimes for which preventive detention is mandatory. And they disregard calls for the eradication of abusive practices like the use of torture and the misuse of preventive detention.
While it is one thing to be tough, it is quite another to be effective. The human rights components of Foxs justice reform proposal have encountered resistance because they appear to hinder the political imperative to get tough on crime. Yet, in fact, the measures aimed at curbing abuses are needed not only to promote human rights, but also to make the countrys criminal justice system more effective in promoting public security.
Take torture, for example. The main reason many Mexican law enforcement agents continue to practice torture is that it allows them to obtain confessions that can be used to convict people at trial. It is easier, they find, to beat a confession out of someone than to conduct a serious investigation. The victims are often unable or unwilling (due to fear) to prove the abuse took place. And judges routinely accept the coerced confessions as proof of guilt, even when the victims retract them later at trial. The result is a travesty for human rights and public security: innocent people confess to crimes they didnt commit, while those who did indeed commit the crimes go free.
The Fox proposal would curb this practice by removing the perverse incentive that promotes it. A modification of Article 20 of the Constitution would establish that only confessions given directly before a judge could be used to convict someone of a crime. The coerced confession extracted in a backroom or basement corridor would no longer be admissible at trial.
Opponents of the measure argue that it would weaken the hand of law enforcementand thereby strengthen the hand of criminals. But they are wrong. Rather than undermining prosecutors, the measure would merely force them to do their job better. Unable to rely on coerced confessions, they would need to conduct more thorough investigations in order to obtain convictions.
The systematic misuse of preventive detention presents a similar challenge. Under current law in most parts of Mexico, anyone charged with a serious crime is automatically jailed until trial. A judge has no discretion to grant provisional liberty to these suspectsnot even to those who seem unlikely to elude justice and pose no apparent danger to society. Over the years, popular demand for anti-crime measures has prompted legislators at both the state and federal level to expand the list of these serious crimes to ever more absurd proportions. So, for example, in the state of Jalisco today, a robbery carried out by more than one person at night is a serious crimewhich means two men charged with robbing a chocolate bar after sunset will automatically face months in prison while awaiting trial.
The result: more than 40 percent of prisoners in Mexico have notbeen convicted of the crime for which they are being held; many of these prison inmates have been charged with only nonviolent or relatively minor crimes; many will eventually be acquitted; and many pose no clear threat to society. Under international law, they are entitled to provisional liberty. But in Mexico, they are locked up for months on end, often with convicted criminals.
The Fox proposal has taken an important first step toward reducing this abusive practice at the federal level by allowing federal judges to grant provisional liberty in cases involving some serious crimes. The proposal also calls for a reform of the Mexican Constitution that would establish a presumption of innocence for individuals not convicted of a crime. This constitutional guarantee could be used to compel further changes in federal criminal law, as well as changes in the criminal law of the states to reduce the excessive use of preventive detention at the local level.
As with the anti-torture reform proposals, opponents argue that the measures aimed to curb preventive detention would weaken law enforcement. But once again, they are wrong. As with torture, the excessive use of preventive detention constitutes a serious threat to public security. The cost of incarceration of tens of thousands of nonviolent prisoners diverts public funds that would more wisely be invested in efforts to combat violent crime. It also contributes to the severe overcrowding of Mexican prisons, which undermines the ability of penal authorities to control inmate populations. This, in turn, results in a prison system where petty criminalsnot to mention innocent suspectsmust endure months living under the influence and even supervision of hardened criminals. The end result is a prison system that functions as something of a finishing school for delinquents.
The measures proposed to address the problems of torture and excessive use of preventive detention are part of a much broader reform package aimed at establishing an adversarial system of justice in Mexico. Not all the measures included in this package are positive from a human rights perspective. In fact, some are quite dangerous, such as a proposed reform of the Constitution that would effectively suspend basic due process guarantees in cases involving organized crime. Even the measure that could help reduce the excessive use of preventive detention contains serious shortcomings, as it does not end the automatic application of preventive detention for many serious crimes, nor for minor crimes when the accused cannot guarantee the payment of reparations to the victim.
Yet, however flawed the reform package may be, the measures to address the root causes of torture and the misuse of preventive detention represent a crucial break from the past. Both are imperative for promoting human rights and public security in Mexico. What the country now needs is for someone to show the political leadership necessary to persuade the public of the proposed reforms importanceand thereby transform them into a political imperative.
Mexicos Open Secret268
Among the human rights scandals that erupted during the Fox presidency, three of the most prominent were the prosecution of environmentalist peasants in Guerrero, the crackdown on protestors in Guadalajara, and ongoing impunity for the Ciudad Juárez murders. On the face of it, the three have little in common. But in fact, despite their obvious differences, all three share one important feature with countless other human rights cases that preceded them: the use of torture.
The Environmentalist Peasants of Guerrero
One of the earliest abuse cases to receive national and international attention during the Fox presidency involved Rodolfo Montiel and Teodoro Cabrera, two peasant leaders involved in environmental activism who were detained in 1999 by soldiers in the mountains of Guerrero. The two were held illegally by the military for two days and, when finally presented before civilian authorities, confessed to having been caught with the illegal drugs and weapons that the soldiers claimed to have found on them. Later they recanted these confessions before a judge, claiming they had been subjected to torture.
The CNDH would eventually determine that the soldiers had planted at least some of the evidence that the two men later confessed to possessing.269 By planting it, the soldiers gave themselves grounds to detain the men, and then by failing to hand them over promptly to the civilian authorities, they had the opportunity to torture or intimidate them into making false confessions. After the military refused to cooperate with investigators, the CNDH also concludedbased on a legal presumptionthat the two men had in fact been tortured.270
Despite the CNDHs findings, however, a judge convicted the two men, basing his decision at least in part on their retracted confession, as well as on the planted evidence.271 It was only after a sustained national and international campaign brought attention to the case that this miscarriage of justice was rectified and the two men were released.
Crackdown in Guadalajara
On May 28, 2004, in Guadalajara, after some participants in an anti-globalization demonstration clashed with security forces, Jalisco state police rounded up over a hundred people, some as they sat in public parks or strolled down the street, and some even as they were being treated in a Red Cross clinic. The majority of the detainees were then held illegally, incommunicado, for over two days. During this time, more than seventy people were arbitrarily detained. Fifty-five of them were subject to cruel and inhumane treatment, including nineteen who were tortured with the aim of coercing them into signing self-incriminating statements and providing information.272
The experience of twenty-six-year-old university student Norberto Ulloa Martinez was typical. I was taken alone to a room by four policemen, Ulloa told Human Rights Watch. They punched and kicked me in the head, the back, the legs, and knees and threatened to kill me if I didnt sign the confession they had written. One of them carried a pistol. He said, if you dont sign, I will kill you. I signed the declaration.273
Impunity in Ciudad Juárez
A third prominent case involved law enforcement authorities handling of cases involving the murder and disappearance of women in Ciudad Juárez, Chihuahua. Responding to mounting local, national, and international pressure to address the hundreds of cases of murdered and missing women, local authorities relied on coerced confessions to generate scapegoats. In 2003, the CNDH reported having found eighty-nine instances in which the suspects in these crimes had spontaneously confessed before the public prosecutor, only to recant the confession before a judge, claiming that they had been subjected to torture.274
One case involved two bus drivers who were detained in 2001 and confessed to raping and murdering eight young women and dumping their bodies in a cotton fieldonly to recant as soon as they were brought before a judge. A medical examination administered after they had spent a day in police custody found they had suffered first degree burns on their genitalsinjuries that had not been observed in another medical examination shortly after their detention. This medical evidence, along with the fact that entire lines in the mens separate police declarations were identical, led the CNDH to conclude that they had in fact been tortured.275 Despite this findingand despite the fact that a forensic expert reported having been pressured to plant evidence against the two men, and the fact that DNA tests of the presumed victims did not match the corpses the men had allegedly dumped; and the fact that one of their defense attorneys was gunned down by police in the street; and the fact that one of two defendants later died under suspicious circumstances in detentionin October 2004 the surviving defendant, Victor Javier García Uribe, was sentenced to fifty years in prison for the murders. In July 2005, after an appeal, Mr. García Uribe was freed due to lack of evidence.276
Another suspect who suffered similar abuse is David Meza. In May 2003, after hearing that his teenage cousin had disappeared in Ciudad Juárez, twenty-six year-old David Meza traveled from his home in Chiapas to help his family search for her. He soon became involved in local efforts to press for progress on the missing women cases, organizing acts of civil disobedience and publicly ridiculing the state attorney general. In July, police announced that they had found his cousins body and summoned Meza to police headquarters. Meza then confessed to the murderbut only, he claims, after two days of torture. He told Human Rights Watch that he was subject to electrical shocks, as well as cuts on his scrotum, chest, and arms, and deprived of sleep for two days. Even though he recanted his confession before the judge, and even there was no other evidence linking Mr. Meza to his cousins murder, he has been in preventive detention for over two and a half years.277 The Chihuahua State Human Rights Commission has certified that Mr. Meza was abused while in custody of the state judicial police and issued a recommendation in April 2005 requesting the state prosecutors office to initiate legal action against the responsible officers.278
Only the Tip of the Iceberg
While those three cases received unusual attention within Mexico and abroad, they were hardly isolated incidents. In Chihuahua, for example, the abusive treatment of detainees extends far beyond suspects in the cases of killings of women. In its 2003 report on Ciudad Juárez, the CNDH observed that the use of physical or psychological violence to obtain confessions appeared to be a regular practice within the state prosecutors office.279 And indeed, Chihuahuas current attorney general, Patricia González, told Human Rights Watch that during her twenty-four years as a criminal judge, she had encountered cases of torture all the time.280
A disturbing example from Chihuahua involves the case of Juan José Pérez, who was arrested in 2003 by five police officers when he was in his cell-phone store in Ciudad Juárez.281 Pérez told Human Rights Watch he was illegally detained for two days and physically and psychologically abused to confess to having committed a kidnapping. According to the state prosecutors office, Pérez remained in preventive detention until April 2005, when a judge declared he was innocent. In another 2003 case from Chihuahua, police forcibly removed Andrés Martínez from his house one night in a town near Chihuahua City. They brought him to a government office where they tortured him for three hours, insisting he confess to a kidnapping.282 According to the state prosecutors office, which has initiated proceedings against the police officers suspected of carrying out the abuse, they beat him severely, gave him electrical shocks in his genitals, inserted a broom stick in his anus, and placed a plastic bag on his head until he passed out.
Similarly, in Jalisco, the use of torture has not been limited to the case of the anti-globalization protestors. In July 2003, for example, Eduardo Guadalupe Jaime Díaz was detained in Zapopan, Jalisco, and taken to the state prosecutors office. According to the State Human Rights Commission, Díaz was tortured by seven police officers who beat him, partially suffocated him with a plastic bag, and applied electrical shocks to various parts of his body, seeking to induce him to confess he had robbed a beauty parlor.283
In Guerrero, as well, there have been torture cases that have escaped outside attention. In February 2000, for example, Álvaro García Ávila, Juan García Ávila, and Alfredo García Torres were arrested by soldiers in their homes in the community of Las Palancas and taken to a military base. Álvaro García Ávila and García Torres told Human Rights Watch they were badly beaten and tortured at the military base. García Torres said that soldiers beat him, threatened to kill him, and placed bags over his head to suffocate him. The soldiers accused him of having killed several police officers in 1999.284 They also accused him of being a guerrilla and demanded he tell them the whereabouts of the guerrilla commander. García Ávila also reported being beaten and asked about the commander. That night, they were transferred into the custody of the public prosecutor in Zihuatanejo. They were beaten again and forced to sign confessions.285
Chihuahua, Jalisco, and Guerrero are by no means the only
states where torture is a chronic problem. State human rights commissions have
documented cases that show widespread use of torture throughout Mexico. For example, in June 2001, Moisés Alberto Arceo Pérez, accused of robbing a vehicle, was tortured by judicial police officers and prosecutors in Yucatán.286 In April 2003, Juan Carlos Martínez Berrios, alleged to have kidnapped his cousin, was tortured by
prosecutors in the State of Mexico; Martínez Berrios died a few days later as a
result of the torture.287
In December 2003, Esteban Gregorio Morales Martínez and Martín Vásquez Pérez
were tortured by judicial police in Oaxaca seeking to establish they had
committed a robbery.288
In March 2004, Omar Ibarra Ávalos, accused of robbing car radios, was tortured by judicial police officers in Nayarit.289 In December 2004, Raúl Silva Espinosa
was tortured by judicial police officers in Querétaro seeking to establish he
had participated in a robbery.290
State commissions continue to receive regular reports of torture. For example, in 2005, the Oaxaca State Human Rights Commission received seven complaints in which torture is alleged. Human Rights Watch obtained documentation on one of these complaints, which refers to the case of thirty-five-year-old Feliciano Julián Gómez Ortiz. Gómez Ortiz, accused of having stolen a cargo of Nestlé products, was tortured in July 2005. Four police officers arrived at his car repair shop in Tlaxiaco, Oaxaca, searching for someone else. When they could not find that other person, they took him instead. After he was tortured for three hours by two police officers, one of them pulled out a picture from a drawer and told the other one: this is not the asshole we are looking for.291
According to a 2003 CNDH study, there were some 588 cases of torture (many involving more than one victim) documented by state and national human rights ombudsmen between 1990 and 2003.292 A 2005 CNDH general recommendation on the practice of torture reiterated that the problem of torture in the justice system persists.293
There are good reasons to believe, moreover, that the documented cases represent only a small fraction of the total number. One is the fact that torture is notoriously difficult to document. There are usually no witnesses to the crime, and it often leaves no physical scars on the victim. Consequently, the only evidence of torture is likely to be the word of the victim, which is often insufficient to prove that the crime took place.
And even this evidence may often never emerge, since a principal effect of the tortureand often its main objectiveis to intimidate the victim into silence. For example, Andrés Martínez told Human Rights Watch that he is now scared of everything. A year after he pressed charges against the police officers that had tortured him, a man came to visit him and suggested he withdraw his case. He did not do that, but he did modify his declaration to remove the statement saying that he had recognized the torturers. Another man who had been tortured at the same time later told Martínez that his fear of reprisals had deterred him from doing anything that would draw attention to his torture, including even going to the hospital to get medical assistance.294
A second consideration that may explain why torture is still such a widespread phenomenon in Mexico is that it is very rarely sanctioned. Although there are a series of norms that were adopted to initiate cases against public servants that commit acts of torture, the CNDH has recently held that there is a very high rate of impunity for torture practices in Mexico.295
Those states that try to prosecute these cases face considerable obstacles. In Oaxaca, for example, a special office has been set up within the state prosecutors office to handle torture allegations. Yet officials from the state human rights commission told Human Rights Watch that this office routinely relabeled these as abuse of authority cases (which carry lighter sanctions).296 In Chihuahua, the current state attorney general set out to investigate torture allegations when she took office in 2004. But officials from the office in charge of these investigations told Human Rights Watch that progress had been limited by a variety of factorsincluding the fact that they received information on torture cases a long time after the alleged abuse took place, as well as the fact that police officers were reluctant to collaborate with the investigation or arrest their colleagues.297
The Incentive to Torture
Yet the reason torture continues in Mexico is not so much because people can get away with it. It is, rather, because torture fulfills a significant function within the Mexican criminal justice system: it generates confessions. According to the CNDH study, in over 90 percent of the cases documented by the federal and state ombudsmen, torture had been used to force a confession from the victim.298
Forced confessions can serve multiple purposes. One is to provide evidenceboth the self-incriminating statement itself and any leads a victim might provide to other witnesses and physical evidencethat the victim is guilty of a crime. But if torture is typically intended to force the truth out of a criminal, its just as likely to force a lie out of someone who is innocent. It can, consequently, serve an even more sinister purposeproviding law enforcement agents cover for their own criminal activities. When, for instance, agents illegally detain people without an arrest warrant, they can force the detainees to say they had been caught committing a crimei.e., in flagrante delictothereby justifying the detention. In this way, torture facilitates the practice of arbitrary detentionwhich is, itself, a chronic human rights problems in Mexico.299
Law enforcement agents know that even if a torture victim retracts a confession later at trial, the judge is likely to give greater weight to the confession than to the retraction, in accordance with Mexicos peculiar version of the principle of procedural immediacy. In other countries, this principle is understood to mean that the evidence presented directly before the judge is likely to be more reliable and, consequently, deserves greater weight as evidence in a trial. But Mexico has turned the concept on its head, with judges giving greater weight to statements made most immediately after the crimei.e., beforethe suspect appears in front of the judge. According to the Mexican Supreme Court, first declarations have more evidentiary value since they are made without any external influence and without the possibility to reflect on what happened.300
In a series of rulings in 1995, the Supreme Court held that a confession can only serve to prove guilt when it is corroborated by other evidence.301 But these rulings have not changed the practice on the ground. Judges still regularly apply the Mexican version of the principle of procedural immediacy. As a result, instead of serving as a procedural guarantee for the accused, in practice, the principle of procedural immediacy in Mexico does precisely the oppositefacilitating, if not encouraging, abuse.
Most of the torture cases mentioned above fit this pattern. Álvaro García Ávila and Juan García Ávila, for example, were convicted on weapons charges based on coerced confession in which they admitted to possessing illegal firearms, which were corroborated by the testimony of three of the soldiers who had detained them. The judge in their case disregarded their subsequent declarations in which the two denied the charges to which they had confessed, claiming that the previous statements had been made under coercion. Their innocence was corroborated by all the civilian witnesses called to testify, as well as by a fourth soldier. Nevertheless, the judge hearing the case, applying the principle of procedural immediacy, chose to rely on the recanted confessions.302
Similarly, Victor García Uribe was found guilty in 2004 of several of the Ciudad Juárez murders by a judge who based the verdict almost exclusively on Uribes confession, even though it was contradicted by other evidence.303
To overcome the immediacy principle, these torture victims must prove that their confessions were coerced. According to the Mexican Supreme Court, this recantation by the accused is not, by itself, sufficient to eliminate evidentiary value of the confession. Instead the accused must present evidence in favor of the claim that the confession was coerced.304
But, as we noted earlier, proving coercion and even torture can be difficult, if not impossible, given the likely absence of witnesses and physical evidence. And even when there is physical evidence of torture, the defendant may have a difficult time convincing a court to disregard an allegedly coerced confession. This difficulty was clear, for example, in the case Martin Del Campo Dodd.305 After being detained by Mexico City police in 1992, Del Campo confessed to murdering his sister and brother-in-law, only to recant at trial, arguing that the confession had been extracted under torture. A medical examination at the time of his detention documented the injuries that he claimed the police had inflicted. And later, the prosecutors office determined that the police had indeed arbitrarily detained and beaten Del Campo. Yet the trial and appellate courts ruled that Del Campo had failed to disprove the claim he had made in his confession that his wounds had been self-inflicted. In other words, the allegedly coerced confession helped provide the grounds for refuting the claim that it had been coerced.
What is even more remarkable is the fact that, even when torture isproven, the victim can still be convicted with evidence obtained through the coerced confession. Mexican courts have held that, so long as the confession has been corroborated by other information, the fact that a confession has been obtained through physical violence should not be the basis for acquitting the suspect.306 While the coerced confession may itself be thrown out, the leads it generates can still serve as evidence at trial. Indeed, some Mexican courts have even foundin clear violation of international lawthat a coerced confession can itself be admissible at trial if it is corroborated by other evidence.307
In sum, Mexicos criminal justice system currently encourages torture by allowing law enforcement agents to use coerced confessions to achieve their endswhether those ends are obtaining criminal convictions or covering up illegal activity. As long as it fulfills this function, the practice of torture in Mexico is unlikely to go away.
Mexicos Obligations Under International Law
International human rights law categorically prohibits torture, as well as cruel, inhuman, or degrading treatment. This prohibition is established by Article 7 of the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the American Convention on Human Rights. Mexico has also assumed the responsibility to prevent and punish torture by ratifying the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 1986 and the Inter-American Convention to Prevent and Punish Torture in 1987. In April 2005, Mexico ratified the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Why Past Efforts to Curb Torture Have Failed
Mexico has not ignored its torture problem altogether. Over the past fifteen years, all three branches of government have taken steps to curb the practice. Yet their actions have, for the most part, consisted of ad-hoc measures in response to torture-related scandals, which they treated as embarrassing aberrations rather than as symptoms of an ongoing structural problem. And all of them have failed for the same reason: they stopped short of addressing the root cause of the problem.
In the early 1990s, Congress passed anti-torture legislation that was promising in theory, but inadequate in practice. The 1991 Federal Law for the Prevention and Punishment of Torture made it a federal crime to practice torture and established that no confession or information obtained through the use of torture could be cited as evidence at trial.308 But according to its Article 1, the law only applies in trials in Mexico City and elsewhere, only in federal courts. Furthermore, these protections have been severely undermined in many cases by the difficulties that victims face when it comes to proving their torture. And, as previously mentioned, even when torture isproven, some federal courts have disregarded the law and found that a coerced confession can itself be admissible at trial if it is corroborated by other evidence.309
The 1991 law also requires that the person making a confession have a lawyer present. But, as the U.N. Special Rapporteur on Torture has reported, this provision has little impact in practice, given that most criminal defendants in Mexico rely on public defenders who are poorly qualified, extremely badly paid, and overworked, and therefore find it virtually impossible to ensure an adequate defense.310 Moreover, the law allows criminal suspects to make confessions in the presence of a person of confidence instead of a lawyer. In many cases, criminal suspects had never met, let alone consulted with, this person of confidence until the moment they signed their confessions. Furthermore, the person of confidence was often an employee of the prosecutors office.
Two years later, Mexico passed a constitutional amendment that struck closer to the heart of the problem. It established that only confessions made before a judge or prosecutor could be cited as evidence. The aim was to prevent the police from beating confessions out of people when they were alone behind closed doors. Yet the presence of a prosecutor is not enough to prevent coerced confessions. After all, the judicial police work for the prosecutors and they share the same incentives to force suspects to confess. A suspect could always be beaten up behind closed doors before being presented to the prosecutor and if the prosecutor found the suspect to be uncooperative, he could return the suspect to the police for another beating.
In recent years, the Supreme Court and lower courts have issued rulings providing guarantees that should, in theory, curb the use of torture. But their impact has also been limited in practice.
As previously mentioned, since 1995, the Supreme Court has held that the confession is admissible at trial only if it is corroborated by other evidence.311 Lower courts have explicitly held that the first declarations of the accused do not always have more value than subsequent ones, since immediacy is not the only element that should be taken into account when evaluating the truth of a confession.312
Yet, as we have seen, this jurisprudence has not been respected in practice. One problem is that there is no clear interpretation of what counts as corroborating evidence. Consequently, it is possible for prosecutors to corroborate the coerced confession using weak evidence that is independently obtained, or strong evidence that derives from the confession itself. In fact, prosecutors in Mexico City offer witness statements as the only evidence in 90 percent of the cases. In most of those cases, the witnesses are either the arresting officers or the officers who sent the suspect to the prosecutors office.313
In January 2005, the Supreme Court held that the right to adequate counsel becomes effective from the moment in which the accused is presented to the prosecutor. Accordingly, the first declaration given before the prosecutor will be inadmissible if the accused did not have the chance to consult privately with a lawyer prior to the declaration.314
This decision is most welcome since a recent evaluation by the Center for Investigations and Education in Economics (Centro de Investigación y Docencia Económicas, CIDE) found that only 30 percent of those that made declarations before a prosecutor, and only 73 percent of those that made declarations before a judge, had access to a lawyer when they gave their statements.315 However, this decision does not constitute binding jurisprudence in Mexico, and therefore it is unlikely to result in any immediate change in the way the justice system works.
Even if, eventually, the Supreme Court does create binding jurisprudence on this issue, ensuring adequate counsel at the point when the suspect is before the prosecutor will not solve the problem. After all, 60 percent of those accused of crimes are detained by the police and remain under their custody for some time before being presented to a prosecutor.316
In 2000, the Fox administration committed itself to 25 steps to combat torture, consisting mainly of measures to increase the training and supervision of police and detectives, as well as to improve investigations into torture allegations.
As part of this program, the PGR issued internal guidelines for compliance with the Istanbul Protocol, which sets standards for documenting torture and its consequences.317 The internal guidelines include criteria to be used by specialists performing medical and psychological evaluations of people who allege they were victims of torture.
These guidelines apply automatically to the federal government, and the Attorney Generals Office has signed agreements with some state-level counterparts for its implementation in the states. Although this is a good example of internalizing an international norm, most torture cases occur at the state levelas the Mexican government itself recognizesand the greatest challenge for the federal government today is making the guidelines mandatory for all state prosecutor offices and ensuring that they all receive courses on how to use them.318 Until that happens, these measures will have limited impact at the state level.
Moreover, the adoption of the guidelines cannot, by itself, guarantee that cases of torture will be adequately investigated and addressed. It is also necessary to ensure the guidelines are implemented effectively. Their implementation in Mexico has been undermined by several factors, according to Mexico NGOs, among them the fact that authorities conducting the evaluations have not always been independent experts, and crucial evidence has sometimes been neglected.319 More fundamentally, the guidelines themselves provide no guarantee that perpetrators of torture will be prosecuted, the single most effective way of curbing abuse.
In September 2003, President Fox signed the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Protocol, which was ratified in April 2005, establishes a system of regular visits to be undertaken by independent international and national bodies to places where people are deprived of their liberty to document abusive practices and offers recommendations for improving the guarantees against torture and mistreatment.
Foxs Reform Package
The Key to Progress
While these initiatives may have prevented some abuses, what Mexico has needed to overcome its torture problem is a reform that would make it far more difficult to use coerced confessions at trialnot in theory, but in practice. In March 2004, President Fox sent to Congress a justice reform proposal that included measures designed to do precisely that.
One measure is an amendment of Article 20 of the Constitution, which requires that a criminal defendant have access to defense counsel from the moment he or she is brought before the prosecutor, and that it be an adequate and certified lawyer. This requirement aims to end the practice of incompetent or even non-certified defenders, also known as persons of confidence, from signing off on confessions without ever providing serious legal counsel to the defendant. The Senate approved this constitutional reform in 2005, which is an important step. But, it still has to be approved by the House of Representatives and local congresses before it can become enforceable.320
While this reform should be helpful, alone it is not enough to solve the problem. Judicial police would still routinely have custody of suspects before presenting them to a prosecutor and could torture them before they receive adequate counsel.
The critical change proposed by the Fox administration is to deny evidentiary value to all confessions that are not made directly before a judge. The proposed modification of Article 20 of the Constitution would render inadmissible any confession given before any authority other than a judge or before a judge but without the presence of a defense lawyer. The reform package also proposes to modify Article 459 of the federal criminal procedure code to incorporate these provisions at the federal level.
Under this proposal, prosecutors will no longer be able to use confessions they obtained on their own (or through the judicial police) and, consequently, will be much less likely to conspire with the police to coerce self-incriminating testimony. This provision, together with another that requires judges to be present at all judicial hearings, would put to rest Mexicos peculiar version of the immediacy principle. Torture victims would no longer have to prove that their original pretrial confession was coerced. It simply would not be admissible at trial.
Both prosecutors and investigative police agree that this is a necessary solution. The attorney general of the state of Chihuahua, for example, told Human Rights Watch that denying evidentiary value to confessions obtained by prosecutors prior to trial is absolutely crucial for ending torture.321
Another important reform that remains pending would deny legal effect to all illegal practices by law enforcement agents, thereby quashing any evidence obtained illegally.322 This provision is crucial to prevent courts from considering other evidence that is obtained as a consequence of coerced confessions, since today there are no clear rules regarding the use of this type of evidence at trial.
Impact at the State Level
Since the federal code of criminal procedure does not apply to states, any reforms to it will have no impact at the state level. However, the proposed constitutional reform to Article 20, requiring that confessions be made only before judges, does apply to states.
The constitutional reform proposal will, in the first place, strengthen a series of reforms that have been taking place at the state level. This is crucial since 95 percent of crimes are judged by state level judicial systems.323 Justice reform proposals are currently under discussion in Oaxaca, Jalisco, Zacatecas, and Chihuahua, and they all address the problem of ascribing evidentiary value to confessions obtained by prosecutors.
The Oaxaca, Jalisco and Zacatecas reform proposals require that any declaration by the accused be given in presence of a defense attorney and before a judge.324 The Chihuahua reform package, on the other hand, still says that declarations rendered before a prosecutor could have evidentiary value, but the proposal provides for other mechanisms to ensure that the person accused of a crime is not tortured to obtain a confession.325 A Nuevo León reform proposal that was adopted in part in December 2004 establishes a new oral and adversarial system for some crimes, but it still allows confessions to be rendered before a prosecutor. Statements made by the accused to prosecutors are valid as long as they were made in the presence of defense counsel and are later read (or reproduced with documentation) in front of a judge.
While they would represent a step forward, not all proposed state-level reforms go far enough, making it all the more pressing that Mexico adopt the Fox administrations proposed reform to Article 20 of the Mexican Constitution, requiring all states to propose and adopt reforms capable of genuinely eradicating the use of forced confessions. Some reforms assume that the contradiction of evidence presented by the prosecutor and the defense counsel before the judgeby itselfwill be enough to disqualify a coerced confession. Yet without other safeguards, this has not been the case.
Adoption of the proposed constitutional reform is also important to prevent constitutional challenges to the new state norms. If local prosecutors feel that state-level reforms are limiting their ability to solve cases, they could request the federal attorney general to challenge the constitutionality of the new norms. Absent a constitutional requirement that state laws substantively mirror federal laws aimed at curbing coerced confessions, local prosecutors could argue that new state procedural laws contradict Article 21 of the Constitution, which gives prosecutors the authority to conduct criminal investigations.
If state prosecutors comply with new state laws and do not challenge them, reforms at the state level could improve the justice administration in Mexico enormously. But, in light of a potential constitutional challenge, it is crucial to complement state reforms with the adoption of Foxs proposed amendment to Article 20.
A Dangerous Flaw
While part of the reform proposal would represent a major step forward, the progress it offers could be severely undercut by a huge exception it has carved out for cases involving organized crime. Foxs proposal adds language to the Constitution that allows a distinct legal regime to apply to these cases, so that they are not bound by the basic due process guarantees established by the Constitution. It is an astounding measure, especially considering that Mexican law defines organized crime broadly to include not only drug cartels, but also any group of three or more people who conspire to commit multiple crimes.326 It may well be true that law enforcement agents may need special tools to bring powerful mafias to justice, but this does not justify creating a wholly separate set of rules under the Constitution.
Other Useful Measures
In addition to changing the text of the Constitution and the law, other measures must be adopted. It is essential that any constitutional reform be accompanied by proper training that will teach current standards to prosecutors and judicial police, as well as how to conduct better investigations, and the consequences of not doing so. For judges to become more effective guarantors of basic rights, they must have access to training and sufficient resources to assume their new role, enforce reforms, and adequately manage their case load.
Above all, it will be essential to adopt at least some measures that will ensure more direct involvement of the judges in the criminal process. A recent study shows that 90 percent of those imprisoned in two states and Mexico City report that they never spoke with the judge that was deciding the case against them.327 The judges presence during declarations must be, then, the first step towards their greater involvement in the judicial process in general.
Misguided Opposition to an Urgent Reform
The main obstacle to passing these much-needed reforms has been politicians concerns that they run counter to the public demand for greater public security. Opponents of the measures argue that denying prosecutors the authority to use confessions will prevent them from doing their job.
But this argument is largely misleading. Under the proposed reform, prosecutors will still be able to interrogate suspects to build leads that can help them solve cases. What they will not be able to do is use these declarations as evidence at trial. This limitation is undoubtedly a significant one. But it must be understood as a serious antidote to a very serious and widespread problem.
Moreover, the antidote is needed not merely to curb abuses, but also to improve the quality of investigations carried out by prosecutors. As the Under Secretary of Criminal Public Policy of Public Security in the Fox administration put it so long as confessions have evidentiary value, investigative police officers will be tempted to obtain confessions instead of search for hard evidence.328 For some, this temptation is all the more powerful when it is possible to force confessions out of people. Why take the time and effort to establish the actual truth, these prosecutors figure, if I can close the case by coercing a suspect into confessing?
But when coercion becomes a convenient shortcut, the cost for criminal suspects is profound, as torture often causes enduring psychological as well as physical damage. And as the case of Ciudad Juárez has demonstrated, the torture victims are not the only ones affected by this abuse. If criminal suspects are wrongly convicted on the basis of coerced testimony, the victims of their alleged crimes (and the victims relatives) will be denied their right to justice as well.
Defenders of the proposed exception for organized crime argue, in similar terms, that it is necessary because of the difficulties and dangers associated with investigating drug cartels and kidnapping rings. It is certainly reasonable for the reforms to include well-designed and targeted exceptions for certain cases that are particularly difficult to investigate. Other countries, such as Italy, Colombia and the United States, have adopted such exceptions. However, none of these countries have resorted to measures as extreme as the blanket exception under the Mexican reform proposal, which would deny basic constitutional guarantees to anyone suspected of participating in organized crime, broadly and nebulously defined. Mexicos proposed blanket exception would remove incentives for thorough investigation, increasing the likelihood that the innocent would be convicted and that some of the most hardened criminals would be left free, ultimately making prosecutors less effective at combating organized crime.
Excessive Use of Preventive Detention
More than 40 percent of prisoners in Mexicoover eighty thousand individualshave not been convicted of the crime for which they have been imprisoned. Instead they serve prison time for months on end, both before and during trial. The reason for this is that the justice system currently does not grant judges the power to decide, in cases where serious crimes are alleged, whether a suspect should remain in jail or be provisionally released pending trial. The problem is aggravated by the penchant of elected officials to increase the number of serious crimes (delitos graves) in response to public demands for improved public security.
This excessive use of preventive detention violates the fundamental rights of thousands of Mexicans. And, combined with the penal systems failure to keep separate facilities for convicted prisoners and those who have not been convicted, it contributes to the overcrowding of prisons, with dire consequences for public security in Mexico.
How the Legal System Limits Judges Discretion
The Mexican legal system does not grant judges the power to decide whether a person accused of a serious crime will face trial in preventive detention or in provisional liberty. Article 20 of the Mexican Constitution holds that a judge may grant provisional liberty unless the law expressly prohibits it in light of the gravity of the offense. But instead of establishing criteria for determining whether the circumstances in a specific case justify sending the accused to preventive detention, Mexican lawsboth at the federal level and in most statesestablish an extensive list of serious crimes for which preventive detention is mandatory.329 In other words, if a person is charged with any of those serious crimes, judges do not have discretion to evaluate that case. They must send the accused to preventive detention and deny any request for provisional liberty.
In response to popular demands for stronger anti-crime measures, the list of serious crimes has increasedboth at the state and federal levelsduring the last years. The list of serious crimes includes crimes that are not necessarily dangerous. In Jalisco, for example, if a robbery is committed with two aggravating factors it becomes a serious crime. For instance, if two people shoplift at night it becomes a serious crime because it is a robbery with two aggravating factors (it involves two people and occurs at night). In Zacatecas, certain electoral crimes are considered serious crimes. So, if a public official uses public funds to support a political party or candidate, independently of the sanction that this person could face for misuse of public funds, he or she will also be sent to preventive detention for being accused of a (serious) electoral crime. In Yucatán, the illicit sale of alcoholic beverages is a serious crime. Therefore, if a person illicitly sells or distributes alcoholic beverages, he or she will face trial in preventive detention.
At the state level, almost all criminal procedure codes have a list of serious crimes. In those places where there is no list of serious crimes, such as Veracruz and Mexico City, a crime is considered serious if the mathematical average between the maximum and minimum sentences for that crime is more than a certain number of years. In Mexico City, for example, a crime is serious if the average is more than five years. The problem in these cases is also that judges do not have discretion to grant provisional liberty in cases of serious crimes. If someone is accused of a crime that is considered serious due to the arithmetic formula, judges must send the accused to preventive detention. In these states, as a consequence of civil societys calls for justice, politicians have increased the sentences of most crimes. Thus, the end result is the same as it is at the federal level or as it is in those states where there is a list of serious crimes: Many non-dangerous crimes become serious and preventive detention becomes mandatory.
Currently, the Mexican Constitution does not include in its text the presumption of innocence. Some Supreme Court constitutional interpretations have stated that the presumption of innocence is implicitly contained in the Constitution.330 However, these interpretations do not yet constitute binding jurisprudence.
Impact on Prison Conditions
The current legal framework leads to an excessive use of preventive detentiona problem that has only been exacerbated as federal and state legislators have expanded the number of crimes deemed serious. The number of Mexican prisoners who have not been convicted of the crime for which they are being held has doubled over the past decade.331 Currently there are over eighty thousand prisoners in preventive detention, almost 43 percent of the total prison population.332
The large number of suspects in preventive custody is a major factor contributing to overcrowding in Mexicos prisons. The fact that Mexico routinely fails to separate convicted and not convicted prisoners only exacerbates the problem.333 The average occupancy rate of Mexican prisons currently stands at 135 percent of actual capacity.334 In extreme cases, such as one prison in the state of Sonora, occupancy rates are in excess of 500 percent of capacity.335
The problem of prison overcrowding has only worsened during the Fox presidency. Between December 2000 and November 2005, the prison population increased by 54,488 prisoners (a 35.2 percent increase).336
Overcrowding leads to increasingly bad conditions for those detained in Mexican prisons. Fifty-three percent of prisoners in three local jurisdictions (Mexico City, Mexico state and Morelos) reported that they do not receive enough food, and 29 percent do not have enough water to drink. Most prisoners rely on their families for medicine, clothes, shoes, and basic resources necessary for their hygiene (for example, soap, toilet paper, and toothpaste). Prisoners rarely receive an education or have the chance to work while in prison.337 Overcrowding, with similar consequences, has also been documented in the majority of state prisons.338
An example of the misuse and tragic consequences of the current system of preventive detention involves the case of Felipe García Mejía, who was arrested in January 2004 in Mexico City. He was charged with allegedly stealing a womans bag on the street, while in the company of his brother and a friend. The prosecutors considered it a serious crime and he was therefore sent to preventive detention. García Mejías case also tragically exemplifies how sending people to preventive detention may lead to other violations of rights. Although he was only fifteen years old, he was sent to jail with adult prisoners. While in preventive detention, he was harshly beaten by another inmate.339 Due to his injuries, he died a few days after his arrest.340
Mexicos Obligations Under International Law
Under these circumstances, detention of unconvicted prisoners violates international human rights law concerning the presumption of innocence, one of the most established and widely accepted principles of the right to a fair trial, and the treatment of prisoners.
Article 8(2) of the American Convention on Human Rights expressly establishes that every person accused of a criminal offense has the right to be presumed innocent. Article 24 of the ICCPR also provides that everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law. And Article 9(3) of the ICCPR, for its part, establishes that persons charged with a crime should not, as a general rule, be kept in detention.341 According to the United Nations Human Rights Committee, preventive detention may only be used if it is lawful, reasonable, and necessary. It is only appropriate if it is necessary to prevent flight, interference with evidence or the recurrence of crime or where the person concerned constitutes a clear and serious threat to society which cannot be contained in any other manner.342
Furthermore, the previously-described living conditions violate international human rights standards that provide that persons deprived of liberty must be treated with dignity.343 The failure to separate convicted prisoners from those who are in preventive detention undermines the presumption of innocence and violates international standards that provide that convicted and unconvicted persons should be held separately and receive separate treatment.344 Finally, Mexicos criminal system fails to pursue the social reintegration of those convicted for having committed a crime, which, according to international law, should be the goal of any criminal system.345
Foxs Reform Package
The justice reform package that President Fox presented in March 2004 offers an important step toward curbing the excessive use of preventive detention in Mexico through amendments to the federal Constitution and the federal code of criminal procedure.
One of the proposed amendments to the Constitution would establish a constitutional guarantee of the presumption of innocence. Another would add language indicating that judges may grant provisional liberty to individuals accused of serious crimes.346 An amendment to the Federal Code of Criminal Procedure would include more specific language allowing judges to determine whether or not to grant provisional liberty in cases involving certain (but not all) serious crimes, provided that the accused does not have a prior conviction for a serious crime, has complied with procedural obligations in prior trials, and is not subject to an extradition process related to the accusation.347
Unfortunately, the Fox proposal suffers from serious shortcomings. One is that it maintains automatic preventive detention for many of the serious crimes in the federal criminal code. Another is that it fails to eliminate existing provisions that deny provisional liberty to individuals accused of non-serious crimes who are unable to guarantee their ability to pay damages should they be convicted.348
Yet both these shortcomings could potentially be counteracted by establishing a constitutional guarantee of the presumption of innocence. This guarantee could provide the basis for compelling future legislative and judicial actions to grant judges greater discretion in determining when and whether to grant provisional liberty.
The constitutional guarantee of the presumption of innocence could also have an important impact at the state levelespecially in states where efforts are already underway to reform local criminal law to address the problem of excessive use of preventive detention.
Proposed state reforms to the codes of criminal procedure in Chihuahua, Jalisco, Oaxaca, and Zacatecas have specifically addressed the problem of excessive use of preventive detention. The proposed reforms in Chihuahua, Jalisco, and Oaxaca would go even further than the federal proposal by completely eliminating the list of serious crimes from the local codes of criminal procedure. The reforms would grant the judge discretion to adopt the most appropriate precautionary measures in all cases. Moreover, they would limit preventive detention to a maximum of twelve months.349 A reform proposal in Zacatecas, by contrast, keeps the current system of relying on a list of serious crimes, but it does grant judges discretion to decide on preventive detention with respect to crimes that are not listed as serious crimes.350
These states reforms are the exception, however, which is all the more reason why an amendment to the federal Constitution to guarantee the presumption of innocence is so crucial: it could compel other states to pursue similar reform efforts.
Misguided Opposition to an Urgent Reform
As with the proposed anti-torture reforms, opponents argue that efforts to curb the misuse of preventive detention would weaken law enforcement. A typical view was expressed by one senator, who told Human Rights Watch that a constitutional guarantee of the presumption of innocence was unnecessary and that the reform of preventive detention would only mean setting criminals free.351
The comment, which presumes the guilt of jailed suspects, is itself an eloquentif inadvertenttestament to the need to reinforce the principle of the presumption of innocence in Mexico. It also shows a troubling lack of awareness of the negative consequences of the excessive use of preventive detention, which itself constitutes a serious threat to public security.
Ineffective Use of Resources
The incarceration of tens of thousands of nonviolent prisoners diverts public funds that would more wisely be applied to other strategies to promote public security. The average cost of having one person in prison in Mexico is 130 pesos per day (U.S.$ 12.5).352 If there are eighty-two thousand prisoners in preventive detention in Mexico, and the numbers are increasing, the cost per day of keeping these people in prison is over U.S.$1 million. And, this is only the direct cost of incarceration, which does not take into account other costs, such as that which results from the prisoners inability to work, earn an income, and pay taxes, as well as the social and psychological costs incurred by the prisoners dependants.
Corruption and Violence within Prisons
The excessive use of preventive detention also contributes to the severe overcrowding of Mexican prisons, which in turn undermines the ability of penal authorities to control inmate populations. This lack of control fosters the development of corruption networks within prisons, which are sometimes operated by prison guards and sometimes by powerful mafias within the prisons. As a result, for example, inmates in some prisons have to pay an internal tax once or twice a day. Prisoners must pay to receive visits, to be able to get food from their family members, to be transferred to bigger or less violent cells, or to avoid performing their cleaning duties.353
The system then becomes so chaotic that, according to a prison director in Aguacalientes, those working within it must increase the number of convicted prisoners that get an early release. Since there is a limit to the number of people a prison can house, and there are practically no limitations on who goes into the prisons, the system generates a perverse incentive: if overpopulation is complicating governance within the prison, the penal authorities in charge of determining who gets early release has an incentive to increase the number of prisoners to which they grant that type of release. When granting release, they consider whether the convicted person has served 60 percent of the sentence, whether he or she has been sentenced more than once for that same crime, and whether he or she behaved well in prison. The criteria used to grant early release do not include whether that person will be a danger to society after he or she is released. As a consequence, three out of ten high risk convicted prisoners get early release.354
Furthermore, since convicted and unconvicted individuals participate together in some activities within prisons (such as sports, education, and family visits), people who have been charged with less serious crimes often interact with inmates convicted of violent crimes. In many cases, the most hardened criminals recruit prisoners that are in jail for minor crimes to perform major crimes when they leave prison. A well-known example of this was the 2005 kidnapping of soccer coach Rubén Omar Romano. His kidnapping was orchestrated by a dangerous criminal held in the Santa Martha Acatitla prison, and carried out by other individuals who had been in the prison with him prior to their release.355 Those carrying out the kidnap had been imprisoned for minor crimes.356
More Prisoners Does Not Equal More Security
Critics of the proposed reform argue that preventive detention is necessary to ensure that criminals are sent to jail. But this argument is based on the erroneous assumption that increased imprisonment of suspects results in increased security. This is not the case in Mexico.
Too often, arrest quotas and other arbitrary factorsnot an assessment of the risk a particular individual posesdrive decisions to imprison suspects. For example, in 2003, the Secretary of Public Security of Mexico City (Secretaría de Seguridad Pública del DF) said it intended to increase the number of arrests in order to be able to present twenty-five thousand peopleevidently an arbitrary numberbefore a prosecutor every year. Between 2002 and 2005, the number of prisoners in Mexico City doubled.357 Prosecutors told the Mexican NGO CIDE that they were required to send cases to trial, and that the more cases you send, the better; it does not matter if they are properly substantiated or not.358
Judicial police officers sometimes face even more troubling incentives: some receive an economic bonus if they detain people and send them before a prosecutor. For example, in the municipality of Tlanepantla in the State of Mexico, police officers received 1,500 pesos (almost U.S.$150) for every person they arrested. The system, which was publicized, lasted only a few days due to complaints by civil society groups.359 Nevertheless, this practice has apparently not disappeared. In a 2005 documentary, a judicial police officer confirmed that officers do receive a bonus if they arrest someone and present this person before a prosecutor.360
The increasing number of prisoners is, therefore, not a good measurement of the systems effectiveness at combating insecurity. Given the failure of prosecutors to conduct reliable investigations, there is little certainty as to whether the jailed suspects are, in fact, responsible for the crimes for which they are charged.
Another argument against limiting the use of preventive detention is that it will be harder for prosecutors to solve crimes, and for judges to convict, because every person charged with a crime will remain free. This argument is also fundamentally flawed. To allow judges to presume that every individual is innocent and grant them the ability to determine in each case whether that person should be held in preventive detention simply gives them the possibility to decide if the defendant will face trial in jail or in provisional liberty. It does not force judges to leave everyone free during trial. And even in cases where they do grant provisional liberty, judges will be able to use other measures to ensure that the person will be present during trial and eventually sent to jail if he or she is found guilty and the crime merits imprisonment.
If Mexico is to make any meaningful progress in curbing the abuses that continue to be committed in the name of fighting crime, it will need to recognize that these abuses themselves represent a threat to public security. The justice reform measures discussed in this chapter represent a crucial step in the direction of integrating human rights and public security into a single coherent agenda.
1) Curb the use of coerced confessions as evidence in trial
The next administration should promote a constitutional amendment that would allow confessions to be admissible as evidence at trial only if they are made before a judge and with the presence of a defense attorney. This reform would eliminate the main incentive that judicial police and prosecutors currently have to engage in torturethe fact that confessions rendered before prosecutors can be used as evidence in trial.
2) Curb the excessive use of preventive detention
The next administration should promote an amendment to the Constitution, giving judges full discretion to grant provisional liberty or preventive detention in all cases of serious and non-serious crimes. Preventive detention should be a measure of last resort, adopted only in cases where the judge believes the suspect will otherwise not be present during trial, where granting provisional liberty would interfere with the normal development of the judicial process, where there is substantial evidence that the accused would pose a serious threat to society which cannot be contained in any other manner. In all cases, the judge should also have the power to adopt other precautionary measures that do not interfere with the liberty of the accused.
To ensure that the judges discretion is exercised properly, the decision to grant provisional liberty or to impose preventive detention must be reasoned and adopted after open and oral hearings in which the prosecutor and the defense attorney had the possibility to explain their points of view.
The next administration should also promote an amendment to the Constitution to establish a guarantee of the presumption of innocence. Such an amendment could play a vital role in compelling further reforms at the federal and state level to allow judges more discretion over the use of preventive detention.
 Parts of this section were originally published in Human Rights Watch/Americas, Mexico Military Injustice: Mexicos Failure to Punish Army Abuses, A Human Rights Watch Report, vol. 13, no. 4(B), December 2001.
 CNDH, Recommendation 08/2000, July 14, 2000.
 Magistrate in the First Unitary Tribunal of the 21st Circuit, Decision in case 406/2000, October 26, 2000.
 CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos Relativo a los Hechos de Violencia Suscitados en la Ciudad de Guadalajara, Jalisco, el 28 de Mayo del 2004, con Motivo de la Celebración de la III Cumbre de América Latina, el Caribe y la Unión Europea, [online] http://www.cndh.org.mx/lacndh/informes/espec/jalisco/index.htm (retrieved December 2005), 2004, part VI.
 Human Rights Watch telephone interview with Noberto Ulloa Martínez, June 21, 2006.
 CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos sobre los Casos de Homicidios y Desapariciones de Mujeres en el Municipio de Juárez, [online] Chihuahua, http://www.cndh.org.mx/lacndh/informes/espec/juarez2003/index.htm (retrieved December 2005), 2003, part VI.
 Chiahuahua Supreme Tribunal, Decision in case 474/04, , July 15, 2005.
 Human Rights Watch interview with David Meza Argueta, Chihuahua City, Mexico, November 15, 2005.
 Chihuahua State Human Rights Commission, Recommendation 12/2005, April 25, 2005.
 CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos sobre los Casos de Homicidios y Desapariciones de Mujeres en el Municipio de Juárez, [online] Chihuahua, http://www.cndh.org.mx/lacndh/informes/espec/juarez2003/index.htm (retrieved December 2005), 2003, part VI.
 Human Rights Watch interview with Patricia González, Chihuahua State Prosecutor, Chihuahua City, Mexico, November 15, 2005.
 Human Rights Watch interview with Juan José Pérez (not his real name), Chihuahua City, Mexico, November 15, 2005.
 Human Rights Watch interview with Andrés Martinez (not his real name), Chihuahua City, Mexico, November 15, 2005.
 Jalisco State Human Rights Commission, Recommendation 10/2004, December 22, 2004.
 On March 5, 1999, judicial police arrived in the community of Rancho Nuevo where, the day before, a memorial service had been held for Alvaro García's brother, Otoniel García Torres, who had been shot to death two weeks earlier. According to community members, Otoniel García had attempted to prevent illegal foresting by an official in the ejido of Río Frío. The official responded by seeking the help of a local political boss, who in turn hired the police to carry out the killing. According to community witnesses, the police arrived shooting and the locals responded, killing four police and three madrinas (paramilitaries) who had accompanied them. [Undated letter by Luis Torres, signed by Estafania Torres, Marria Cruz Yañez, Salud Torres Montiel, Guadalupe Torres, Epifanio Peralta, Consección Segura. Also, Human Rights Watch interviews with Álvaro García Avila and Alfredo García Torres, Acapulco, Guerrero, Mexico, March 31, 2001.]
 Human Rights Watch interviews with Alvaro García Avila and Alfredo García Torres, Acapulco, Guerrero, March 31, 2001.
 Yucatán State Human Rights Commission, Resolution on file C.D.H.Y. 132/III/2001, April 1st, 2002.
 State of Mexico Human Rights Commission, Recommendation 21/2004, March 12, 2004.
 Oaxaca State Human Rights Commission, Recommendation 48/2004, November 19, 2004.
 Commission for the Defense of Human Rights of the State of Nayarit, Recommendation 28/2004, October 19, 2004.
 Queretaro State Human Rights Commission, Recomendation (157)/05/2005, May 9, 2005.
 Human Rights Watch interview with Feliciano Julián Gómez Ortiz, his wife Esperanza, and his two sons, as well as with his lawyers from the Center for Human Rights and Advice for Indigenous Populations (Centro de Derechos Humanos y Asesoría para Pueblos Indígenas, CEDHAPI), Tlaxiaco, Oaxaca, Mexico, November 21, 2005.
 Ricardo Hernández Forcada y María Elena Lugo Garfias, Algunas notas sobre la tortura en México, (Mexico, CNDH: 2004), p. 139.
 CNDH, Recomendación General 10: Sobre la Práctica de la Tortura, November 17, 2005.
 Human Rights Watch interview with Andrés Martinez (not his real name), Chihuahua City, Mexico, November 15, 2005.
 CNDH, Recomendación General 10: Sobre la Práctica de la Tortura, November 17, 2005.
 Human Rights Watch interview with Hugo López Hernández, visitador general, and Marcos Figueroa Calvo, executive secretary, Oaxaca State Human Rights Commission, Oaxaca, Oaxaca, Mexico, November 22, 2005.
 Email correspondence with a member of the office in charge of investigating torture allegations (Contraloría de Asuntos Internos) in the State Attorney Generals Office, February 10, 2006.
 Ricardo Hernández Forcada y María Elena Lugo Garfias, Algunas notas sobre la tortura en México, (Mexico, CNDH: 2004), p. 139.
 Arbitrary detention is related to the lack of powers of law enforcement agents to investigate crimes. Since law enforcement agents have no investigative powers, they can only combat crime by detaining individuals in the street if they are caught committing a crime. As we discuss in the section on excessive use of preventive detention, police officers usually have to a fill a quota of detained individuals. The incentive to detain people is even greater if law enforcement agents can use coercion to obtain a confession that will later be used as evidence in trial because they can virtually detain anyone and then use a coerced confession against them.
This situation is exacerbated by the fact that arbitrary detention is not a typified crime in Mexican criminal codes, it is generally possible to detain someone in flagranti if a third person indicates that the accused was seen committing a crime, and it is not possible to present an injunction against an arbitrary detention if the accused is then formally charged with a crime (because the appeal becomes moot).
 Mexican Supreme Court, Primera Sala, Tesis 106, Sexta Época, Apéndice de 1995, tomo II, Parte SCJN, p. 60. See also Segundo Tribunal Colegiado del Sexto Circuito, Tesis: VI.2o. J/61, Novena Epoca, Semanario Judicial de la Federación y su Gaceta, Tomo: IV, August 1996, p. 576.
 Mexican Supreme Court, Primera Sala, Tesis 108, Sexta Época, Apéndice de 1995, tomo II, Parte SCJN, p. 61.
 Magistrate of the Second Unitary Tribunal of the 21st Circuit, Decision in criminal case 79/2000, January 31, 2001. In the same trial, García Torres was convicted on drug charges, based on the testimony of the soldiers who said they captured him while he was carrying three kilos of poppy seed down the road from the house. Although he had never confessed to this, the judge dismissed his testimony denying his guilt and the corroborating testimony of eyewitnesses, on the grounds that they lack[ed] juridical relevance in the face of the direct and categorical accusations made by the captors.
 Chihuahua Supreme Tribunal, Case 474/04, July 14, 2005, p. 47.
 Mexican Supreme Court, Primera Sala, Tesis 104, Sexta Época, Apéndice de 1995, tomo II, Parte SCJN, p. 59.
 Inter-American Court on Human Rights, Case Martin del Campo Dodd v. Mexico Preliminary Objections, September 3, 2004.
 Tercer Tribunal Colegiado de Circuito, Tesis 474, Octava Época, Apéndice de 1995, Tomo II, Parte TCC, p. 281.
 Segundo Tribunal Colegiado del Sexto Circuito, Semanario Judicial de la Federación XIV, July 1994, p. 512.
 Law to Prevent and Sanction Torture (Ley Federal para Prevenir y Sancionar la Tortura), December 27, 1991.
 Segundo Tribunal Colegiado del Sexto Circuito, Semanario Judicial de la Federación XIV, July 1994, p. 512.
 United Nations Commission on Human Rights, Report of the Special Rapporteur, Mr. Nigel S. Rodley, submitted pursuant to Commission on Human Rights resolution 1997/38, E/CN.4/1998/38/Add.2, January 14, 1998, para. 38.
 Mexican Supreme Court, Primera Sala, Tesis 108, Sexta Época, Apéndice de 1995, tomo II, Parte SCJN, p. 61. Other judicial decisions held that a confession given before the judicial police and the prosecutors and not before a judge will only have evidentiary value if it is corroborated by other evidence. Tribunal Colegiado del Vigésimo Circuito, Tesis 478, Octava Época, Apéndice de 1995, tomo II, parte TCC, p. 284.
 Segundo Tribunal Colegiado del Sexto Circuito, Tesis VI.2o.J/184, Octava Época, Semanario Judicial de la Federación IX, March 1992, p. 91; and Tribunal Colegiado en Materia Penal del Séptimo Circuito, Tesis VII.P.J/48, Octava Época, Gaceta del Semanario Judicial de la Federación 86, February 1995, p. 43.
 National Center for State Courts, Practice Matters: Mexico Citys Criminal Courts. An Evaluation and Suggestions for Change, (unpublished) p. 137.
 Mexican Supreme Court, Primera Sala, Tesis 1a.CLXXI/2004, Semanario Judicial de la Federación y su Gaceta XXI,January 2005, p. 412. Another recent decision by a lower court also provides the guarantee of adequate counsel and the prohibition of torture by defining a confession as an admission of facts that constitute a crime for which the person is being accused, given by a person of more than eighteen years old, mentally capable of doing so, which is given before a person with legal faculties to receive it, with assistance of his or her defender, and without any use of violence. Cuarto Tribunal Clegiado del Décimo Circuito, Tesis XV.4o.J/1, Novena Época, Semanario Judicial de la Federación y su Gaceta, tomo XXI, January 2005, p. 1527.
 Marcelo Bergman et. al., Delincuencia, Marginalidad y Desempeño Institucional, División de Estudios Jurídicos, CIDE, 2003, p. 48.
 Ibid., p. 51.
 The Istanbul Protocol became a United Nations document in 1999 and it is also called Manual on Effective Investigation and Documentation of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment.
 Mexicos report before the Committee against Torture, Ministry of Foreign Affairs, 2005, p. 9.
 Red Nacional de Organismos Civiles de Derechos Humanos Todos los Derechos para Todos, Informe de la Situación de los Derechos Humanos en México 124º período de sesiones de la Comisión Interamericana de Derechos Humanos, March 6, 2006.
 See the proposed reform to the Federal Code of Criminal Procedure [online] http://www.presidencia.gob.mx/docs/reformalegal_ssp.pdf, and the proposed reform to the Constitution [online] http://www.presidencia.gob.mx/docs/reformas_ssp.pdf (retrieved April 2006).
 Human Rights Watch interview with Patricia González, Chihuahua State Attorney, Chihuahua City, Mexico, November 15, 2005.
 Article 470 of the proposed federal criminal procedure code.
 Ministry of Public Security, Antecedentes del Sistema Nacional de Seguridad Pública, [online] http://www.ssp.gob.mx/application?pageid=snsp_sub_2&rootId=28&pbname=snsp_acerca&docName=Antecedentes&docId=37 (retrieved December 2005).
 The Oaxaca reform is the clearest one, and establishes both conditions expressly in its proposed Article 138. The Jalisco and Zacatecas proposals specifically establish the declaration by the accused must be given in presence of the defense attorney, and after the accused was assisted by the attorney. They both also propose that the judge must read the accused his or her rights prior to the declaration, which implicitly means that the judge must be present. In the Jalisco proposal it is Articles 162 to 167, and in the Zacatecas one it is Articles 164 to 172.
 A ministerial declaration will be valid evidence only if it was given in presence of a defense attorney, if it was videotaped, if the prosecutor proves that the accused was not forced to declare, and if the accused was not illegally detained at that time. Article 361 of the proposed reform.
 Article 2 of the Federal Law Against Organized Crime (Ley Federal contral la Delincuencia Organizada).
 Marcelo Bergman et. al., Delincuencia, Marginalidad y Desempeño Institucional, División de Estudios Jurídicos, CIDE, 2003, p. 52.
 Human Rights Watch interview with Rafael Ríos, Mexico City, Mexico, November 17, 2005.
 At the federal level, Article 194 of the Federal Criminal Procedure Code lists which crimes are considered serious.
 See for example Mexican Supreme Court, Tesis P. XXXV/2002, Novena Época, Semanario Judicial de la Federación y Su Gaceta XVI, August 2002, p. 14.
 Between 1994 and 2004, the number of unconvicted prisoners in Mexico has almost doubled: it increased from 42.167 to 81.947. Guillermo Zepeda, Myths of Pretrial Detention in Mexico,Open Society Justice Initiative, 2004, p. 8.
 Guillermo Zepeda, Myths of Pretrial Detention in Mexico,Open Society Justice Initiative, 2004, p. 6. The percentage of prisoners in preventive detention at the state level is of 44.5 percent, and at the federal level it is of 31.2 percent. Open Society Justice Initiative, The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis, (forthcoming 2006), p. 22.
 CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos sobre la Situación de los Derechos Humanos en los Centros de Reclusión de la República mexicana, dependientes de Gobiernos Locales y Municipales, [online] http://www.cndh.org.mx/lacndh/informes/espec/creclus/index.htm (retrieved December 2005), 2004,part IV.b.4 and part V.B.
 Elena Azaola et. al., El Sistema Penitenciario Mexicano, Project on Reforming the Administration of Justice in Mexico, Center for U.S Mexican Studies, 2003, p. 6.
 Open Society Justice Initiative, The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis, (forthcoming 2006), p. 60.
 CNDH, Recomendación General 11: Sobre el Otorgamiento de Beneficios de Libertad Anticipada a los Internos en los Centros de Reclusión de la Republica Mexicana, part I.A.
 CNDH, Informe Especial de la Comisión Nacional de los Derechos Humanos sobre la Situación de los Derechos Humanos en los Centros de Reclusión de la República mexicana, dependientes de Gobiernos Locales y Municipales, [online] http://www.cndh.org.mx/lacndh/informes/espec/creclus/index.htm (retrieved December 2005), 2004, part V.B.
 Ibid. See alsoU.N. Commission on Human Rights, Report of the Working Group on Arbitrary Detention on its visit to Mexico, E/CN.4/2003/8/Add.3, December 17, 2002, p. 3.
 In addition to the international human rights standards mentioned in the next section, when the person detained is under 18 years old, there is also a violation of article 37 (c) of the Convention of the Rights of the Child and Article 10 (2) (b) of the International Covenant on Civil and Political Rights.
 Human Rights Commission of Mexico City, Recommendation 5/2004, June 24, 2004.
 Article 9(3) of the ICCPR; see also General Comment No. 8 of the Human Rights Committee on the ICCPR, Art. 9 (Sixth Sess. 1982), Report of the Human Rights Committee, adopted Apr. 12 , 1984 by the Human Rights Committee, 40 U.N. GAOR Supp. (No. 40) U.N. Doc. A/40/40 (stating "[p]re-trial detention should be an exception and as short as possible").
 Hugo van Alphen v. the Netherlands (No. 305/1988) (July 23, 1990), Official Records of the General Assembly, Forty-fifth Session, Supplement No.40 (A/45/40), vol. II., annex IX, sect. M., para. 5.8. Similarly, the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders established that:
(b) Pre-trial detention may be ordered only if there are reasonable grounds to believe that the persons concerned have been involved in the commission of the alleged offenses and there is a danger of their absconding or committing further serious offences, or a danger that the courts of justice will be seriously interfered with if they are left free;
(c) In considering whether pre-trial detention should be ordered, account should be taken of the circumstances of the individual case, in particular the nature and seriousness of the alleged offence, the strength of the evidence, the penalty likely to be incurred, and the conduct and personal and social circumstances of the person concerned, including his or her community ties;
Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August-7 September 1990: report prepared by the Secretariat (New York: United Nations, 1991), E.91, IV , chap.I, sect.C (para.2).
 See Article 10(1) of the ICCPR; Article 5(2) of the American Convention on Human Rights; and Rules 15 to 26 of the Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955, and aproved by the Economic and Social Council by its resolution 663 C (XXIV) of July 31, 1957 and 2076 (LXII) of May 13, 1977.
 Article 10 (2) (a) of the ICCPR; Article 5 (4) of the American Convention on Human Rights; and Rules 8 (b) and 84 to 93 of the Standard Minimum Rules for the Treatment of Prisoners.
 Article 10(3) of the ICCPR; Article 5(6) of the American Convention on Human Rights; and Rules 58 to 61 and 71 to 81 of the Standard Minimum Rules for the Treatment of Prisoners.
 Under the proposal, Article 20 of the federal Constitution would read: In all criminal cases, the accused, the victim or the offended party will have the following rights.
A. The accused [will have the right to]:
(I) The presumption of innocence until declared guilty of a crime by competent courts. [The accused] shall face trial in liberty, except if, in accordance to the law:
(a)It is considered a serious crime, unless the judge decides otherwise,
(b) It is a non-serious crime, sanctioned with prison sentence, if the accused cannot guarantee his or her ability to pay reparations, and
(c) The judge has reversed possibility that the accused face trial in provisional liberty (in both serious and non-serious crimes).
 Under the proposal, Article 252 of the Federal Code of Criminal Procedure would read: ( ) The judge may grant provisional liberty to the accused, in light of the circumstances of the investigated crime in the case of crimes in [some sections of the article that lists serious crimes] as long as the accused has not been previously convicted of a serious crime, has always previously complied with procedural obligations, and is not subject to an extradition process related to the crime for which he or she is being accused. In these cases, the crime will not be considered serious for the purposes of granting provisional liberty.
 Under the proposal, Article 237 of the Federal Code of Criminal Procedure would read: Every person accused of having committed a crime will face trial in liberty, unless the accusation is related to crimes considered serious by this Code and the judge has not authorized the liberty, or if the accusation is related to non-serious crimes but the accused has not provided guarantees for reparations, or in both types of crimes, if the accused was previously granted provisional liberty and a judge reversed such decision.
See proposed Article 20(A) of the Constitution, and proposed Articles 237-252 and 336-341 of the Federal Code of Criminal Procedure.
 In the Jalisco proposal it is Articles 189 to 206; in the Chihuahua proposal it is Articles 177 to 194; and in the Oaxaca proposal it is Articles 169 to 174. According the director of legislative studies in the Nuevo León State Attorneys office, they are beginning to draft a reform proposal with the same provisions. Email correspondence between Human Rights Watch and Nina Ruiz Lozano, March 13, 2006.
 Article 191 of the Zacatecas proposal.
 Human Rights Watch interview with Senator Orlando Paredes, Mexico City, Mexico, November 16, 2005.
 Open Society Justice Initiative, The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis, (forthcoming 2006), p. 53.
 Ibid., p. 63.
 Human Rights Watch telephone interview with Juan Pablo Ruiz de la Rosa, Aguascalientes, México, March 10, 2006. Ruiz de la Rosa is the director of the El Llano prison in Aguascalientes.
 Silvia Otero, Trasladan a autor de secuestro de Romano a La Palma, El Universal, September 22, 2005.
 Silvia Otero, Reclutan a plagiarios en penal, El Universal, September 23, 2005.
 Open Society Justice Initiative, The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis, (forthcoming 2006), p. 35.
 Documentary El Tunel by Roberto Hernández, CIDE, 2005.
 Open Society Justice Initiative, The Economic Costs of Pretrial Detention in Mexico: A Cost-Benefit Analysis, (forthcoming 2006), p. 71.
 Documentary El Túnel by Roberto Hernández, CIDE, 2005.