1

in Mexico

2

What is arraigo?

Arraigo is an arbitrary detention that is used to obtain information about a person in a criminal investigation which, by a judicial order, allows for the continuous monitoring by the district attorney. The purpose of the detention is to increase the time that authorities are allowed to initiate the investigation by keeping a person deprived of their liberty.

It is also worth mentioning that the objective of arraigo is not to determine if a person is innocent or guilty, but rather to deprive a person of their liberty in order to obtain information that may later be used for at the trial stage. There is no investigation before the arraigo; people are detained under arraigo in order to investigate.

The district attorney can imprison the alleged offender for a period from 40 to 80 days with a judicial order. During the arraigo, prosecutors practically place the detained in solitary confine-ment; severely restricting their access to

their family, attorney and independent medical care.

It is important to highlight that prior to the constitutional penal reform, the Supreme Court of Justice of the Nation had declared the unconstitutio- nality of this measure because it violates various constitutional rights, including the right to personal liberty.

On June 18th 2008, several Consti-tutional amendments to the criminal justice system in Mexico were approved, which incorporated important topics in the matter, such as oral trials and the presumption of innocence. However, the reform is inconsistent because it also elevated arraigo to Constitutional status, being that it is an administrative detention that is realized without any previous charges which violates various rights. This measure pretends to justify that, in the interest of combating orga- nized crime and promoting public safety, it is necessary to restrict human rights such as personal freedom, freedom circulation, physical and mental integrity, and the presumption of innocence.

Is arraigo compatible with human rights?

No. Arraigo is, in and of itself, a violation of various human rights. This measure is clearly a form of arbitrary detention contrary to the human rights obligations that Mexico has acquired and it violates the rights of personal liberty, legality, presumption of innocence, the guarantees of due process and the right to an effective recourse. Moreover arraigo expands the possibilities of being subjected to torture or other cruel, inhuman or degrading treatment.

There is no investigation before the arraigo;

3

How and where isarraigo used?

The Mexican Commission for the Defense and Promotion of Human Rights (hereinafter CMDPDH for its abbreviation in Spanish) has documented a wide range of cases of people who have been detained under arraigo in military facilities, in hotels or private houses, and it has verified that people are detained under arraigo before the restriction order is approved, which constitutes an arbitrary detention.

We have documented several cases involving torture, cruel, inhuman and degrading treatments and deplorable conditions of detention, in which elements of the military and/or police submit victims in order to obtain incriminating confessions, testimonies or declarations.

In military barracks, the situation is more alarming because the barracks are used to detain civilians under arraigo and such facilities do not meet the minimum requirements to ensure the proper treatment that should be provided to any person who is detained. Similarly, as the Constitution states, the use of military jurisdiction is not naturally applicable to civilians who lack military functions.

Criminal justice and the Public security strategy In Mexico, arraigo, raids (cateos) and automatic preventive detention have become the “tech-niques” most commonly used in criminal investigations. The regularity of their use is based on the combination of the criminal justice system and public safety. As such, the justice system becomes an available tool which is often used to support the public security system. Thus, the Mexican government has set up an exception system which consists of the application of a pre-conviction punishment that relaxes a person’s judicial guarantees and puts them in a position of legal limbo where they are neither indicted or in the exculpatory process.

people are detained under arraigo in order to investigate.

4

The indiscriminate and illegal use of arraigo.A medic in the city of Agua Prieta, located in the state of Sonora, was detained for three consecutive periods of detention under arraigo by the Office of the Mexican Attorney-General (hereinafter PGR for its abbreviation in Spanish). Once his first term of 40 days expired, he was detained under arraigo for the alleged crime of organ trafficking and smuggling undocumented persons, the district attorney requested an extension of the term of the detention for another 40 days. The maximum period allotted to the district attorney for a detention under arraigo is 80 days, upon expiration of this term the district attorney must release or accuse the person. However, in complete violation of the applicable law and the Constitution, when the period of 80 days finished, the Attorney requested a further arraigo order, but this time under the charge of money laundering. With that, the case was settled before the Tenth Court of Chihuahua, and the medic was transferred to the maximum security prison of Altiplano, in the state of Mexico.1

Confessions and narratives of arraigo victims“... they sat me down on the floor and tied my hands behind my back (...) they tied my feet with tape (...) they covered my face with a plastic bag and asphyxiated me on several occasions (...) there were three guys, one was sitting on my feet, one on my stomach and one more who placed the plastic on my face until I stopped breathing; I believe that I lost consciousness in the first

5

interrogation; I remember when I regained consciousness I felt them giving me a chest massage (...) they violently put the plastic back on my face repeatedly; I did not know what to do, I panicked because they resurrected me the first time, I felt like I no longer mattered in this world, I could only wonder about what I had done ... “.

(Testimony of a police officer detained under arraigo in a military barrack, March 2009, Tijuana, Baja California)

Sexual Violence -arraigo and confessions obtained under torture“.. they laid me down face up with my hands behind my back on a mattress on the floor, wrapped me in blankets, and asked me if I had dealings with some people (...) then they [sic] a wet cloth over my face, when I breathed I felt how wet it was, it was difficult for me to breathe. So I felt a stream of water on my nose, I tried to sit up but I couldn’t because they held me by the shoulders, legs and someone was pressing my stomach (...) they got me up, sat me in a chair and suddenly I felt that they put plastic bag on my face, I felt I was going to faint, they would take the bag off for a few seconds (...) I had some boots on that they took off (...) they started to give me shocks on my feet for a long period of time (...) they spoke between themselves and decided who was going to stay and who was going to watch the door (...) he removed my pants and my lycra shorts, then he got on top of me, raped me, he ejaculated inside of me, he got off of me and I tried to cover myself, but he told me to not do so because his partner was coming ... “

(Testimony of a civilian woman detained under arraigo, detained by soldiers in February 2011 in Ensenada, Baja California)

6

Working Group on Arbitrary Detention of the UN (2002):Arraigo represents a form of arbitrary detention due to the insufficiency of the available judicial resources and that the places where these detentions take place are, if not considered secret, are at least “discrete”. Committee Against Torture of the UN (2007): The State should, in light the Supreme Court of Justice of the Nation’s decision, ensure that arraigo is eliminated both in law and in practice, and at the federal and state level. (Paragraph 15)

United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatments (2009): The use of arraigo leaves detainees in a very vulnerable situation without a defined legal status to exercise their right to judicial defense (...) The little oversight on the practice of arraigo heightens the possibilities of being subjected to torture (...) close to 50% of people interviewed during their visit to the Federal Center of Arraigos in Mexico City showed signs of torture and abuse.

Universal Periodic Review (2009):Some countries have questioned the use of arraigo in México. New Zealand, Ireland and Switzerland, recommended for the evaluation of the use of arraigo and its elimination as soon as possible,

since it can be considered an arbitrary detention. The Human Rights Committee of the United Nations (2010):Expressed strong concern over the legality of the use of arraigo in the fight against organized crime because a person can be detained without charge for up to 80 days and without the legal guarantees prescribed by Article 14 of the International Covenant on Civil and Political Rights.

UN Special Rapporteur on the Independence of Judges and Lawyers (2010):Arraigo is an arbitrary measure and it is inconsistent with the principle of the presumption of innocence and the right to personal liberty. Moreover, this mechanism is itself contrary to the oral adversarial model that Mexico has taken

Recommendations from international organizations

6

7

in substitution to mixed inquisitorial system. (...) Arraigo should disappear from the criminal justice system in Mexico. (paragraphs 92-94)

Working Group on Enforced or Involuntary Disappearances (2011):... received information on cases in which a person who was the subject of a temporary disappearance was later presented to local or federal authorities and detained under arraigo. (par. 30). (...) it recommends eliminating arraigo from law and practice, both federal and state level to prevent cases of enforced disappearance. (par. 88)

In two cases litigated by the CMDPDH, the National Commission of Human Rightsquestioned the legality of retaining aggrieved persons in military instal-lations and recommended that the Ministry of Defense ensure that those detained by soldiers are not taken to military installations, and that these people immediately be made available to the appropriate authority in accordance to Law. (Recommendation # 87/2011) “... that all persons detained by the army immediately be put at the disposal of the corresponding ministerial authority and that military facilities are not used as centers of detention, interrogation, rape and torture ...” (Recommendation # 52/2012)

Data

The CMDPDH has created a database that is updated with media monitoring and requests for access to public information. This data has allowed us to demonstrate the ineffectiveness of the mechanism, its lack of transparency and its violating nature.

Constant increase of arraigo

In late 2011, PGR2 reported that between June 2008 and October 2011 the overall number of people detained under arraigo was 6,562, with an annual average of 1,640 people. In May 2012 the data increased to 7,775 people detained under arraigo3.

Although the Constitution only allows for detention under arraigo for orga- nized crime cases, the PGR reported4: only 3 of 5,362 orders of arraigo were emitted for that offense. The rest of the arraigo cases are for alleged drug crimes (46%) abduction (23%) and terrorism (16%).

Seven UN bodies have recommended the elimination or restric-

tion of arraigo. The Mexican government continues applying it

and failing to comply with its international obligations.

7

8

The excessive use of arraigo to investigate crimes

Of the 2,775 arraigo cases that CMDPDH has monitored in the press, 54% of these (1,491) were applied by state authorities for common law crimes.5 This shows the repeated use of arraigo by state authorities, although the Constitution only authorizes its use for organized crime cases.

Opacity and inconsistency of data

To date, the actual dimensions of the use of this measure remain unknown due to the opacity by the various authorities involved in the management of numbers and the use of statistical controls of arraigo.

People detained under arraigo at Federal Investigations Centeraccording to crimes: 2008-2011

Source: PGR, Memos No. SJAI/DGAJ/06812/20011 and No. SJAI/DGAJ/05398/2012

Source: PGR, Memo No. SJAI/DGAJ/06812/2011

Number of persons detained under arraigo at FederalInvestigations Center: january 2008 - may 2012

2500

2000

1500

1000

500

0

OthersOrganize crime

Auto theftChild traffickingMoney laundry

TerrorismKidnapping

Drug trafficking

2008

1215

1771 1982

2374

433

2009 2010 2011 2012

Personas arraigadas en Centro de Investigaciones Federalessegún delito 2008-2011

OtrosDelincuencia organizada

Robo de vehículosTrá�ico de menores

Lavado de dineroTerrorismo

SecuestroContra la salud

873

197205

288847

12322503

0 500 1000 1500 2000 2500 3000

Fuente: PGR, o�icio No. SJAI/DGAJ/06812/2011

9

According to PGR, 647 arraigo orders were requested between June 2008 and April 20106 and according to the Council of the Federal Judiciary 1,051 orders of arraigo were issued between June 2008 and May 20107. The difference could be explained only if 808 order of arraigo were issued in one month, between April and May 2010.

On the other hand, the data of the National Commission of Human Rights does not allow us to have a real understanding of the number of complaints of human rights violations under arraigo either.

In the request for access to public information by the CMDPDH, the National Human Rights Commission of Mexico (hereinafter CNDH for its abbreviation in Spanish) reported 405 complaints of human rights violations related to arraigo in a constant growth: 45 complaints in 2008 to 148 in 20118. However, according to a newspaper article that quotes the CNDH’s report to Congress, the number of complaints in the same period was 1,0649.

Judicial Protection: An amparo is a dysfunctional and ineffective tool in arraigo cases.

Despite the Mexican state’s argument, we have found that there is no effective judicial remedy against arraigo. According to our research, under resolutions on the issue, the judge’s refusal to protect the complainant is justified on behalf of the public interest,

Source: CMDPDH’s database, Media monitoring

Federal law crimes 46 %

Commonlaw crimes 54 %

even in cases where the judge has not determined whether a person who has been detained under arraigo is guilty.

Similarly, according to statements made by trial lawyers, amparo (motion for judicial protection) requests against arraigo orders in the federal context only rush the Public Prosecutor to consign the criminal investigation before the District Judge so that the judge can decree the formal arrest before the injunction background is resolved, and therefore the judgment against arraigo is left without judicial standing.

The ineffectiveness of arraigo in obtaining convictions.

Arraigo, besides being a violation of human rights, is highly ineffective in punishing crimes11: close to 90% of people under arraigo were consigned but only 3.2% received a conviction.

Between January 2009 and October 2011, of the 324 amparos requested against arraigo orders only 14 were granted, representing 4.3%.10

10

Source: MemosCNDH/PVG/DG/138/2010,

CNDH/2VG/08012010, TVG/000709, QVG/

CNDH/108/2010

Arbitrary detentionand torture 26 %

Torture or cruel, inhuman and degrading treatments41 %

Arbitrary detention38 %

Judgment 3.2%

No control, no rulesVarious UN agencies have constructed reports that point out that arraigo is a form of arbitrary detention which facilitates the use of torture and other cruel, inhuman and degrading treatments. The CNDH has confirmed this assertion by reporting that between 2008 and 2010 of the 120 complaints of human rights violations

related to arraigo, 38% made reference to arbitrary detention, 41% made reference to cruel, inhuman or degrading treatments and 26% reported both violations12.

In torture and cruel treatments complaints, the victims mention beatings, lesions, fractures and the administration of electric shocks to their genitals or other body parts.

According to an analysis of the data obtained through our investigation, authorities identified as responsible for the complaints are:

Consigned 90%

70 %

Office of the Mexican Attorney-General

Federal PublicSecurity Ministry

NationalDefense Ministry

40 %34 %

Detained under arraigo

Source: PGR, Memos No. SJAI/DGAJ/09406/2011 and No. SJAI/DGAJ/10153/2011

Complaints before the CNDH for human rights violations in arraigo

cases: 2008-2010

Note: The victims can report more than one authority in their complaint

Source: CMDPDH’s Database

Authorities responsable for violations of human rights in arraigo cases

11

The immediate elimination of arraigo from law and practice, both at the federal and state level.

An amendment to the Constitution’s primary and secondary legislation, both at federal and state level, to guarantee that arraigo is eliminated and to monitor that the implementation of the new criminal justice system in all states respects the exclusion of arraigo in local jurisdictions.

That any person detained under arraigo be allowed to present complaints to the competent authorities when she/he thinks that they have been subjected to torture or cruel treatment;

That the judicial power, at the federal and local level, uphold the unrestrictive respect of the rights relating to due process and implement its judicial control functions to prevent the violation of the right to defense and personal integrity.

Given the gravity of the situation and considering the many recommendations made by international organizations, the Mexican Commission for the Defense and Promotion of Human Rights recommends the following:

That until arraigo is eliminated, the necessary measures are taken to enforce the prohibition of the use of torture and other cruel treatment before, during and after arraigo, including among others:

That no person detained under arraigo be held in military facilities, barracks, police facilities or any other place that may breach the required detention conditions;

That any statements made while detained under arraigo have no probative value in criminal proceedings;

That any person detained under arraigo have the right to access the counsel of their choice;

That in any questioning of people detained under arraigo occur with their defense attorney present;

ENDNOTES1 http://www.reforma.com/nacional/articulo/672/1342048/?Param=42 PGR, Memo No. SJAI/DGAJ/09406/20113 PGR, Memo No. SJAI/DGAJ/06812/2011 and SJAI/DGAJ/05398/20124 PGR, Memo No. SJAI/DGAJ/06812/20115 CMDPDH’s Database, Media Monitoring6 PGR, Memo No. SJAI/DGAJ/3440/20107 Comprehensive Case Monitoring System, includes data until October 17th 2011, http://www.dgepj.cjf.gob.mx 8 CNDH, Memo No. CI/38/287/20119 http://eleconomista.com.mx/sociedad/2011/09/02/cndh-recomienda-cambios-figura-arraigo10 Comprehensive Case Monitoring System, includes data until October 17th 2011, http://www.dgepj.cjf.gob.mx11 PGR, Memo No. SJAI/DGAJ/09406/2011 and No. SJAI/DGAJ/10153/201112 Memo CNDH/PVG/DG/138/2010, folio 7110, dated April 29th 2010, same which conferred the information through the First (Memo CNDH/PVG/DG/138/2010), Second (Memo CNDH/2VG/08012010), Third (Memo TVG/000709) and Fifth (Memo QVG/CNDH/108/2010), Inspectors of the aforementioned public organism

This publication was made possible thanks to the support of the Open Society Foundations. The contents of this re-port reflect the views of the CMDPDH and do not neces-sarily reflect the views of the Open Society Foundations. Editor’s in Chief:Juan Carlos Gutiérrez Contreras andSilvano Cantú Martínez

Managing Editors:Michaela Telepovska, Daniel Joloy Amkie,Leopoldo López Rizo and Isis Nohemí Hernández

Design and Formatting:Communicare

Mexican Commission for the Defense and Promotion of Human RightsTehuantepec 142 Col. Roma Sur Mexico D.F. 06760+52 (55) 5564 2582info@cmdpdh.orgwww.cmdpdh.orgTwitter: @CMDPDHFB: Cmdpdh

Photographs:Fotolia.com/Eky Chan/ BortN66/Vibe Images/ lethril