The UN Working Group on Arbitrary Detention has called on the Mexican government to do so

Mexico should repeal mandatory preventive detention, say UN experts

photo_camera ONU/Evan Schneider - Image of a prison

A group of human rights experts say that "informal preventive detention is contrary to international guarantees for the protection of human rights". Article 19 of the Mexican Constitution obliges judges to impose this type of detention on all persons accused of certain crimes, a circumstance which, in the experts' opinion, leads to "multiple violations of their human rights, such as the presumption of innocence, due process and equality before the law".  

The UN Working Group on Arbitrary Detention* called on Mexico to urgently abolish mandatory pre-trial detention, also known as "unofficial" or "automatic" pre-trial detention, which is included in the country's constitution.

In a statement issued on Monday, the Group's chairwoman said that "unofficial pre-trial detention is contrary to international guarantees of human rights protection, as the Working Group's jurisprudence has indicated on multiple occasions".

Miriam Estrada-Castillo added that the Inter-American Court and 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, Mexican law 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".

She added that informal preventive detention is also contrary to judicial independence, the duty to provide legal grounds for detention, seriously compromises the right to personal integrity and the guarantee not to be subjected to torture or cruel, inhuman or degrading treatment. Although it is established by law, this does not guarantee that it is not arbitrary.

A decade awaiting trial

"One of the most serious consequences of mandatory preventive detention has been that many Mexicans spend more than a decade deprived of their liberty awaiting trial, without a 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 facing the Mexican government in the area of public security, the Working Group reiterated that the use of pre-trial detention places Mexico in clear violation of its international human rights obligations under the International Covenant on Civil and Political Rights. 

"Annulling informal preventive detention is not only an essential step towards alleviating the problem of arbitrary detentions in Mexico, but would also allow for the alleviation of overcrowding in the penitentiary system," the communiqué stresses.

The Working Group has been urging Mexico to urgently address 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-Chairperson); Elina Steinerte (Latvia); Priya Gopalan (Malaysia); and Matthew Gilllett (New Zealand).

The Group is part of what is known as the Special Procedures of the Human Rights Council. Special Procedures, the largest body of independent experts in the UN human rights system, is the general 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 organisation and serve in their individual capacity.

More in Society