Manuel Velasquez/Getty Images
Manuel Velasquez/Getty Images
On January 27, 2023, the Inter-American Court of Human Rights (IACtHR) notified the Mexican government of its judgment in the case of Tzompaxtle Tecpile et al. v. Mexico, in which it found Mexico responsible for subjecting three people—Jorge Marcial Tzompaxtle Tecpile, Gerardo Tzompaxtle Tecpile, and Gustavo Robles López—to forms of detention that intrinsically violate human rights. Among other reparations measures, the IACtHR ordered Mexico to reform its legal framework to eliminate and modify, respectively, two forms of detention: arraigo and pretrial detention.
This is the twelfth time that the IACtHR has found the Mexican State responsible for human rights violations. Complying with the IACtHR’s judgment is a binding legal obligation and a necessary step to eliminate practices that violate human rights and undermine the effectiveness of Mexico’s criminal justice system. However, compliance with the ruling will likely face resistance, especially given the government of president Andrés Manuel López Obrador’s stigmatization of the judiciary and defense of the overuse of pretrial detention.
Arraigo: what is it and what did the IACtHR order?
Since 2008, Article 16 of the Mexican Constitution has established a form of detention called arraigo. Presented as a tool against organized crime, arraigo authorizes the detention of a person for up to 80 days without charges being brought against them. During the period of arraigo, authorities can seek grounds to charge the person with a crime, so this form of detention is informally known as “detaining to investigate.” Before 2008, different forms of arraigo already existed in other Mexican laws; in the Tzompaxtle Tecpile et al. case, authorities approved the arraigo of the victims for up to 90 days in 2006.
Arraigo has been repeatedly linked to torture and the fabrication of criminal accusations. The human rights bodies that have analyzed the practice have unanimously concluded that it violates human rights, since it authorizes detention outside the framework of a criminal trial, and without due judicial control, for a period of time that far exceeds the permissible limit. Neither can arraigo be considered an effective mechanism against organized crime, considering the levels of violence and impunity that Mexico has experienced while arraigo has been in force in the Constitution. Authorities themselves have notably reduced their use of arraigo in recent years. However, the practice is still in force and the National Prosecutor’s Office (Fiscalía General de la República, FGR) applied it to more than 50 people between 2019 and 2021 (information request 330024622000526).
In Tzompaxtle Tecpile et al., the IACtHR examined arraigo in light of the American Convention on Human Rights, to which Mexico is a party. The IACtHR took into account the arguments of the parties, as well as various expert opinions (including one by the author), and referred to the analysis of arraigo by United Nations (UN) human rights bodies, among others. The IACtHR concluded that arraigo amounts to “the denial of due process itself” and that it violates the human rights to personal liberty and the presumption of innocence. Therefore, it ordered Mexico to eliminate arraigo from its legal framework. Compliance with this measure will require a constitutional reform.
Pretrial detention in Mexico: what is it and what did the IACtHR order?
The other type of prolonged detention analyzed by the IACtHR in this same case was pretrial detention, that is, the incarceration of a person during a criminal proceeding, prior to sentencing. It is common for a country’s legislation to include pretrial detention as a possible precautionary measure in the criminal justice system. However, as indicated by the IACtHR, “when ordering precautionary measures restrictive of liberty, the State must clearly explain and substantiate, according to each specific case, the existence of” the conditions that justify and make necessary the deprivation of liberty.
In Mexico, there is an overuse of pretrial detention, stemming in large part from norms that allow its use without complying with human rights standards. For example, the IACtHR found that the law applied to the victims of the case “prescriptively establishes the application of pretrial detention for crimes of a certain gravity … without an analysis of the need for precautionary measures in light of the particular circumstances of the case.”
The IACtHR also noted that the incompatibility of Mexican norms with human rights standards persists today and that some rights-violating aspects of the legal framework “were even expanded” through subsequent reforms. In the area of pretrial detention, such expansions are exemplified in the concept of mandatory pretrial detention (prisión preventiva oficiosa, PPO), currently in force in Article 19 of the Constitution. Under PPO, people accused of any of a long list of crimes are imprisoned from the beginning of the criminal trial, without the prosecutor’s office having to present any reason to justify the deprivation of liberty. A number of UN bodies have determined that PPO is incompatible with human rights.
Today, Mexico’s overuse of pretrial detention, including the expansion of PPO through a 2019 constitutional reform, seriously disrupts the effective investigation and prosecution of crimes. As of December 2022, more than 40 percent of Mexico’s prison population was in pretrial detention; on average, the length of criminal proceedings with pretrial detention in 2021 was between 141 and 248 days, but some people have been awaiting sentencing in prison for years. Spending months or years in pretrial detention has serious family, economic, and other impacts on the life of the incarcerated person, in addition to the suffering, risks, and human rights violations that the detention conditions themselves may entail. From this place of desperation, people have a strong incentive to seek any way to get out of prison as soon as possible, even if it means confessing to a crime they did not commit. National and international non-governmental research warns of the risk that people prosecuted in Mexico are accepting a form of plea bargaining known as the abbreviated procedure (procedimiento abreviado)—that is, they agree to confess to the crime and waive their right to a trial in exchange for a reduced sentence—not necessarily because they are guilty or because they think they will be convicted at trial, but simply because they are imprisoned. We recall in this context that pretrial detention has an extensively documented disproportionate impact on the poor and on women.
Through pretrial detention and especially PPO, the mere opening of a criminal trial becomes a de facto punishment that investigative authorities can publicly present as an achievement. If the incarcerated person also accepts the abbreviated procedure, the result is a conviction that the authority can cite as an indicator of the fight against impunity, without the accusation ever having to be proven at trial. Thus, the ease of imposing pretrial detention detracts from the need for prosecutors to build solid cases, capable of holding up at trial, to solve and punish crimes.
After analyzing pretrial detention in Tzompaxtle Tecpile et al. and finding that Mexican norms on this subject do not comply with human rights standards, the IACtHR ordered the State to modify its legal framework to comply with the requirements set forth in the judgment. In addition, another IACtHR judgment is expected soon in an emblematic case of pretrial detention in Mexico: that of Daniel García Rodríguez and Reyes Alpízar Ortiz, who spent more than 17 years in pretrial detention.
Context in Mexico: stigmatization of the judiciary and defense of PPO by the government
Mexico recognized the binding nature of the IACtHR’s judgments when it accepted its jurisdiction in 1998. The reforms ordered in Tzompaxtle Tecpile et al., in addition to being human rights obligations, are also necessary to the proper functioning of Mexico’s still-young adversarial criminal justice system. Improving the work of all institutions on which this system depends should be a priority task for the State in light of the deficiencies that persist in criminal investigations in Mexico: in 2021, only 1.1 percent of crimes committed against the population resulted in the filing of criminal charges or some form of reparation. The consolidation of the adversarial criminal justice system has also been a focal point of international cooperation over the last decade and a half, including hundreds of millions of dollars in assistance from the United States.
Despite the urgent need to comply with the measures ordered by the IACtHR, the international ruling will face resistance from the Mexican State. Members of the López Obrador government, including military officials, publicly criticize judges for releasing people accused of crimes. In particular, the president and members of his cabinet have repeatedly defended PPO by stating that it is necessary to take the decision of whether or not to incarcerate defendants out of judges’ hands. In discussing criminal trials, the president often posits a false dilemma between due process and “justice”: for example, in August 2022, he equated due process guarantees with legal “technicalities” and, in the context of defending PPO, objected to such guarantees being invoked “as a pretext to free people left and right.” He added:
What, shouldn’t a judge, regardless of what is strictly legal, seek to impart justice? Or is it just that the document is wrong, the investigation was not well put together, and the arrest was not at 10:00 a.m., but at 11:00 a.m., and with that I have an excuse to release someone?
In light of the discourse of the president and other public officials, it is important to remember that judicial authorities have the legal duty to release people who have been arbitrarily detained or against whom there is insufficient evidence to open a judicial proceeding. Only in this way can there be a counterweight to security institutions and prosecutors’ offices that seeks to ensure that crimes are duly investigated and those responsible correctly identified through cases built on evidence. In a country with endemic failures in criminal investigations and a long history of falsification of the circumstances of arrests (linked to practices of torture and the fabrication of false accusations), strengthening this counterweight is crucial.
Additionally, eliminating PPO would not mean that all defendants would be free, but rather that prosecutors would have to justify to judges the need to incarcerate a person as a precautionary measure—a basic condition for respecting the rights of the population. Finally, it is important to recall that combating impunity requires effective investigations, and cannot be measured by the number of people imprisoned without a sentence.
Outlook for the immediate future
On the day the IACtHR’s ruling was announced, Mexico’s Ministry of Foreign Affairs and Ministry of the Interior issued a joint press release stating:
The Mexican State will carefully analyze the conclusions and orders of the Inter-American Court in its ruling in order to be in a position to comply with its provisions, ensuring the greatest respect for the obligations contained in the American Convention on Human Rights, in accordance with its democratic processes.
However, when asked about the press release, the Minister of the Interior, Adán Augusto López, rejected the jurisdiction of the IACtHR, stating on February 3:
It is absurd for the Inter-American Court to place itself above the Constitution and disrespect the Mexican State. There can be no power above the Mexican State … there can be no court, no matter how Inter-American it may be, that engages, as I said, in this nonsense of forcing the Mexican State to modify the Constitution ….
In recent years, Mexico has taken steps to comply with some reparations measures ordered by the IACtHR, but has refused to comply with others, including structural measures to prevent human rights violations by security institutions. In light of the context described above, it will be essential for the international community to add its voice to that of the victims and Mexican civil society in calling on Mexico to comply with the Tzompaxtle Tecpile et al. judgment.
