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Minister Luis Maria Aguilar Morales proposed to the plenary session of the Supreme Court of Justice of the Nation (SCJN) to invalidate the articles of the National Code of Criminal Procedures that allow informal preventive detention (PPO). In his project, the togado considers that the PPO violates the principles of presumption of innocence by imposing jail on an individual accused of a crime who has not yet been sentenced, which violates article 19 of the Constitution and is contrary to international conventions on human rights signed by our country. Also, he maintains that it is a custom
with harmful consequences as it stands as an anticipated sanction that, to top it off, hits hardest people in situations of extreme poverty who cannot access adequate defense and, because they are deprived of their liberty, condemns their families to precariousness and to remain in poverty
. The president of the SCJN, Arturo Zaldívar, joined this position by stating that preventive detention is part of what must be corrected to make access to justice a reality in Mexico.
If the proposal that the plenary session of the Supreme Court will discuss on September 5 is approved, 92,595 people currently subject to this precautionary measure might be released, and henceforth the PPO can no longer be applied automatically, but rather the judge before whom each detainee appears may impose it according to the peculiarities of the case
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In response, President Andrés Manuel López Obrador warned that eliminating the mandatory nature of informal preventive detention in several crimes considered serious would encourage impunity and corruption. Therefore, he called for a mechanism for justice to be expedited, but not to use this as a pretext to free left and right
. In announcing the official position of the federal government, the Ministry of the Interior and the Legal Department of the Presidency considered the existence of the PPO essential. in certain crimes, to ensure that alleged criminals who are arrested for organized crime, serious crimes of the common order or white collar crimes, are not eluded from the action of justice during the criminal process
as well as to avoid that they evade the action of justice; who, in retaliation for their arrest, threaten the integrity of the victims or threaten or harm witnesses, or who continue to commit crimes and direct criminal activities that affect society
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The ongoing controversy between the Executive and Judicial powers requires several considerations. If it seems clearly unjustifiable and even counterproductive that 40.8 percent of the 226 thousand 916 people incarcerated in federal and state prisons are subject to preventive detention, and if it is true that this affects people with limited resources in several of the cases that merit PPO under current legislation, it is untenable to say that there is a concern for the most disadvantaged sectors of society when seeking to eliminate preventive detention for serious crimes such as, for example, illicit enrichment or tax fraud for more than 8.7 million pesos .
In this sense, it inevitably raises suspicions that Minister Aguilar’s project is presented when individuals belonging to the political and economic elites are criminally prosecuted, who have ample resources to evade the action of justice and, with great probability, would remain unpunished if the authorities did not have the tool of informal preventive detention. Faced with these dilemmas, it is necessary to find a formula that protects human rights without becoming a letter of marque for white-collar criminals.
