Tuesday, 04 March 2008 19:00
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CalderonDear President Calderón,

I am writing to share some observations regarding the justice reform package that was approved by the Mexican Congress today. The reform is, in some respects, an historic step forward for Mexico, as it creates the basis for an oral and adversarial justice system and contains measures that are critical for promoting greater respect for fundamental rights. We welcome, for example, the proposal to include the basic guarantee of presumption of innocence in the Mexican Constitution.

At the same time, however, we are deeply concerned about other provisions that will violate Mexico's international human rights obligations if this reform enters into force. Of particular concern is the proposal to modify article 16 of the Mexican Constitution to allow prosecutors, with judicial authorization, to detain individuals suspected of participating in organized crime before they are charged with a crime. This pre-charge detention would be possible for a period of up to 40 days if "it is necessary for the success of the investigation, to protect individuals or goods, or when there is a justified risk of flight." The 40-day limit could be extended for up to an additional 40 days if the circumstances that gave rise to it continue to exist.

This proposed 80-day limit would be, by far, the longest of its kind in any Western democracy. In other countries, the limit for any form of pre-charge detention, or preventative detention, is generally less than seven days. In the context of combating terrorism, for example, the maximum period allowed for pre-charge detention in Canada is one day; in the United States, Germany and South Africa it is two days; in Italy and Spain it is five days; and in Ireland and Turkey it is seven days. The United Kingdom recently extended the time limit for pre-charge detention for certain terrorism related offenses to 28 days, making it the Western democracy with the longest pre-charge detention time. However, British courts have yet to adjudicate on whether this is consistent with human rights law, although previous case law indicates that such a long pre-charge detention period is not permitted.

Detention without charge for such a long period of time violates the fundamental right to liberty and security of the person and the associated protections against arbitrary detention enshrined in international law. The American Convention on Human Rights (Article 7, ACHR), the International Covenant on Civil and Political Rights (Article 9, ICCPR), and the European Convention on Human Rights (Article 5, ECHR) all require that an individual arrested or detained on reasonable suspicion of having committed an offense must be "informed promptly" of the charge against him or her and "brought promptly" before a judge or other officer authorized by law to exercise judicial power. The Human Rights Committee applying Article 9 (2) of the ICCPR that requires anyone arrested to be "promptly informed of any charges against him" found detainment for seven days without charge to be a violation.1 The European Court of Human Rights has held that to hold a person for a period of fourteen or more days, even where there was a state of emergency and threat of terrorism, without them being charged was a violation. It deemed the period "exceptionally long," rendering detainees vulnerable not only to arbitrary interference with the right to liberty but also to torture.2

A second provision proposed in the new constitutional text that also raises serious human rights concerns is the one that denies judges the power to decide, in cases involving one of a prescribed list of offenses, whether a defendant should remain in jail or be provisionally released pending and during trial. On the one hand, the reform package proposes that the right to presumption of innocence be incorporated in the Constitution and that pretrial detention should only be used when other precautionary measures are not enough to prevent, for example, the risk of flight, interference with the investigation, or security of the victim or witnesses. But it also states that judges must order pretrial detention if the person is accused of a series of crimes listed in the Constitution.

When there is no possibility of obtaining pre-trial liberty, the detention of accused but unconvicted persons, particularly where it may last for a substantial period, ultimately impinges on the presumption of innocence, one of the most established and widely accepted elements of the right to a fair trial. Article 8(2) of the ACHR expressly establishes that every person accused of a criminal offense has the right to be presumed innocent. Article 14 of the ICCPR also provides that "everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law." Article 9(3) of the ICCPR explicitly establishes that a person charged but not yet convicted of a crime should not, as a general rule, be kept in detention. According to the United Nations Human Rights Committee, pretrial 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."3

Again, I would like to reiterate that the reform package contains historic measures that could greatly strengthen Mexico's justice system. However, the two provisions discussed here, regarding pre-charge and pre-trial detention, will need to be modified in order to prevent serious human rights abuses in the future.

Sincerely,

José Miguel Vivanco
Executive Director
Americas Division

1 Kurbanov v Tajikistan, No.1096/2002 para. 7.2.
2 Aksoy v Turkey, [1996] ECHR 68 (December 18, 1996) para. 66 - 78.
3 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 offenses, 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 offense, 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).

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