Mexico should annul mandatory preventive detention, say UN experts

The UN Working Group on Arbitrary Detention* called on Mexico on Monday to urgently annul mandatory preventive detention, also known as “unofficial preventive detention” or “automatic”, which is included in the Constitution of that country.

In a statement issued this Monday, the president of the Group indicated that “the informal preventive detention is contrary to international guarantees for the protection of human rights, as the jurisprudence of the Working Group has indicated on multiple occasions.”

Miriam Estrada-Castillo added that the Court and the Inter-American Commission on Human Rights, as well as the Human Rights Committee and the Committee against Torture, have adopted similar conclusions.

The expert pointed out that, according to article 19 of the Constitution, the Mexican legal system obliges judges to impose this type of detention on all persons accused of certain crimes, a circumstance that, in her opinion, led to “multiple violations of their human rights, such as the presumption of innocence, due process, and equality before the law”.

It added that informal preventive detention is also contrary to judicial independence, to the duty to legally justify the reasons for the detention, seriously compromises the right to personal integrity and the guarantee of not being a victim of torture or cruel, inhuman or degrading treatment. Despite being established by law, this does not guarantee that it is not arbitrary.

A decade waiting for a trial

“One of the most serious consequences of mandatory pretrial detention has been the fact that many Mexicans spend more than a decade deprived of their liberty awaiting trial, without sentence and in conditions of serious risk to their lives and personal integrity. This also contributes to prison overcrowding,” said Estrada-Castillo.

Despite being aware of the challenges that the Government of Mexico faces in terms of public security, the Working Group reiterated that the informal preventive detention places Mexico in clear violation of its international human rights obligations, assumed with him International Covenant on Civil and Political Rights.

“Annulling the informal pre-trial detention is not only an essential step to alleviate the problem of arbitrary detentions in Mexico, but it would also allow to alleviate the overcrowding of the prison system,” the statement highlights.

The Working Group has been insisting to Mexico on the need to urgently resolve this structural problem since 2018 and has repeatedly offered the necessary technical assistance.

*The Working Group is composed of five independent expert members from various regions of the world: Miriam Estrada Castillo (Ecuador; Chairperson-Rapporteur), Mumba Malila (Zambia; Vice President); Elina Steinert (Latvia); Priya Gopalan (Malaysia); Y Matthew Gillett (New Zealand).

The Group forms part of what is known as the Special Procedures of Human Rights Council. Special Procedures, the largest body of independent experts in the UN human rights system, is the umbrella name for the Council’s independent investigative and monitoring mechanisms that address specific country situations or thematic issues in all parts of the world. Special Procedures experts work on a voluntary basis; they are not UN staff and do not receive a salary for their work. They are independent of any government or organization and serve in their individual capacity.