Coluna Fictio Iuris
The figure of preventive imprisonment has been a subject of debate in Mexican law from the very beginning, which sparked a lot of discussion regarding its recognition both at the constitutional level and in criminal procedural regulations. In this regard, debates on preventive imprisonment have generated arguments in favor and against, reaching the highest Mexican court, the Supreme Court of Justice of the Nation, which decided at the end of 2022 to maintain this measure despite all the criticisms and despite the repeated resolutions of the Inter-American Court of Human Rights recommending the elimination of this figure from Mexican legislation.
Since 2014, when the National Code of Criminal Procedure was published, until the present day, there have been multiple voices against preventive imprisonment, describing it as an anticipated punishment and a mechanism in favor of the authorities to allow them to detain for investigation rather than detaining based on investigation. Furthermore, critical voices argue that preventive imprisonment leads to prison overcrowding and exposes individuals who have not yet received a guilty verdict to be placed among convicts with firm sentences since there is no division between inmates in the Mexican penitentiary system. As a result, the accused, who is not yet convicted, is exposed to a hostile and aggressive environment as if they were already a prisoner.
A few days ago, as a consequence of the Tzompaxtle Tecpile and others v. Mexico and García Rodríguez and another v. Mexico cases at the Inter-American Court of Human Rights, a regional body of the Federal Judiciary approved mandatory jurisprudence that eliminates preventive imprisonment in 18 states of Mexico. In this regard, the Regional Plenum in Criminal Matters of the Central-North Region decided that when a crime merits mandatory preventive imprisonment, filing an amparo (a constitutional remedy) will imply an automatic provisional suspension, allowing the accused to proceed with their process in freedom. Thus, despite the recognition of preventive imprisonment in the Mexican Constitution and the National Code of Criminal Procedure, the judiciary has chosen to exercise conventionality control (which it is obliged to do) to declare the figure of preventive imprisonment incompatible with international standards, opting for less restrictive measures such as periodic appearances before a judge, posting a financial guarantee, or the use of electronic monitoring devices, among others.
All this opens up a new scenario of action in which, through the interpretation of the judiciary, the national legislation seeks to align with international mandates, fulfilling obligations that had seemed to be forgotten for a long time. It remains to be seen what will happen in the future with issues such as requests for mandatory preventive imprisonment, constitutional Article 19, and Article 167 of the National Code of Criminal Procedure, and above all, we will have to see how much workload district courts will face from now on as a result of the foreseeable wave of amparo filings.
It was about time for Mexico to start taking a different direction from the current one, in which preventive imprisonment, although it should be an exceptional measure, is used as a general rule.
Imagem Ilustrativa do Post: mexico // Foto de: Rodrigo Reyes Sànchez // Sem alterações
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