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Mexico’s Supreme Court (SCJN) is set to eliminate automatic preventive detention (jail without bail) in the country, arguing that it violates the human rights provided for in international treaties, in addition to the fact that it has been the reason for condemnation of Mexico by the Inter-American Court of Human Rights (IACHR).

The move by the SCJN would give criminal judges in Mexico the freedom to decide, on a case-by-case basis, who should be held in pretrial detention while on trial, regardless of the alleged crime.

Automatic pretrial detention, or arraigo, was introduced to the Mexican Constitution in 2008, as a federal preventive measure to detain people suspected of belonging to organized crime. However, human rights groups have argued that it is a form of arbitrary detention and that it violates, among other things, the right to personal liberty, presumption of innocence, due process and a speedy trial.

In February 2019, Mexican President Andrés Manuel López Obrador’s (AMLO) leftist National Regeneration Movement (Morena), which has a majority in the Chamber of Deputies, carried out a constitutional reform in the lower house that added nine crimes — which included generalized abuses of power by government officials, misuse of public funds, electioneering and petroleum theft — to the list of crimes that would merit automatic pretrial detention.

At that time, the Office of the United Nations High Commissioner for Human Rights (OHCHR) warned that the move by Morena would increase the likelihood of innocent people being incarcerated and worsen an already burdened penal system in Mexico. Civil society groups in the country likewise expressed concern that widening the powers of a penal system that was in dire need of reform — in conjunction with the increased militarization of the country under López Obrador — added to the risk of abuse.

The SCJN decision would replace automatic pretrial detention with justified preventive detention, in which the Prosecutor’s Office has to produce evidence to justify keeping the accused in jail. Experts argue that preventive detention does the opposite: It subjects the detained to public scrutiny and trial by media, and allows more time for authorities to “determine” if the accused is guilty or not.

Political journalist F. Bartolome of Mexican daily newspaper Reforma wrote on Wednesday, Aug. 24, that “the abuse of preventive detention has led to the mediocrity of the Public Ministry, since it does not have to prove its accusations with evidence and proof.”

Bartolome also said that “what should have been a tool of the Public Ministry ended up becoming the baton of the executive branch.”

“AMLO’s so-called Fourth Transformation, or 4T, has perverted preventive detention and used it to fill prisons and threaten opponents, but not to improve the justice system,” Bartolome wrote. “And that is said by ministers, jurists, experts, academics and, above all, victims of this abuse of power. These are not just high-profile political figures or white-collar criminals, but people who could have awaited their trials in freedom, but without having been found guilty, remain behind bars.”

The SCJN move comes on the heels of the recent order of Mexico’s Federal Attorney General’s Office (FGR) for the immediate release of former Secretary of Social Development (Sedesol) and former Secretary of Agrarian and Urban Territorial Development (Sedatu) Rosario Robles Berlanga, who had been subjected to three years of preventive detention without trial for a misappropriation of funds case more popularly known as the “Master Fraud.”

López Obrador, in his daily morning press conference on Wednesday, said that the SCJN decision to eliminate preventive detention could “give way to impunity and corruption.”

“If the justices vote like this, let it be known at least what it is about. Do not hide anything,” López Obrador said. “And I asked the secretary of the interior and the legal adviser to be very clear, because there are times when they use technicalities and talk about ‘thesis’ and ‘jurisprudence’ and ‘due process,’ and the essence of the matter is not understood.”

Political analysts and experts in Mexico have warned of the dangers of arbitrary detention, particularly in light of the recent moves by the Nicaraguan government — headed by leftist President Daniel Ortega — to silence its critics, namely, the Catholic Church and the independent press.

On July 6 of this year, police in Managua detained two drivers working for the Nicaraguan independent newspaper La Prensa and also raided the homes of a reporter and a photojournalist working for the news outlet. On Tuesday, Aug. 23, the Nicaraguan government seized the equipment and offices of La Prensa, whose staff — including writers and photographers — were forced to leave the country last month for fear of imprisonment, forcing them to operate the newspaper from exile in digital form.

On Friday, Aug. 19, Rolando Álvarez, who has served as the bishop of Matagalpa, Nicaragua, since 2011, was arrested after the police raided his residence and put him under home confinement and eight of his companions in jail.

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