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The Case of Tzompaxtle Tecpile et al. v. Mexico: Insights on Arraigo and Pretrial Detention

Mr Genaro Andrés Manrique Giacomán

Genaro Andrés Manrique Giacomán is a doctoral researcher within the Human Rights Centre at Ghent University. His research focuses on the evidence regime of the Inter-American Court of Human Rights, as part of the ERC-funded project “DISSECT: Evidence in International Human Rights Adjudication”, under the supervision of Prof Dr Dembour. He holds a Master’s Degree in Political Science from the University of New Brunswick (Canada) and a Law Degree from Universidad Iberoamericana Torreón (Mexico). Before joining Ghent University, he worked in academia, coordinating the Bachelor of Law and the Human Rights Program at Universidad Iberoamericana Torreon in Mexico (2018-2020).


On November 7, 2022, the Inter-American Court of Human Rights (hereinafter IACourt or the Court) issued the judgment in the case of Tzompaxtle Tecpile et al. v. Mexico, in which it declared the Mexican State responsible for the violation of the rights to personal integrity, personal liberty, judicial guarantees and judicial protection (Articles 5, 7, 8 and 25 of the American Convention on Human Rights, respectively) of Jorge Marcial Tzompaxtle Tecpile, Gerardo Tzompaxtle Tecpile and Gustavo Robles López. These violations took place between 2006 and 2008 and occurred in the context of their detention and imprisonment and subsequent criminal proceedings.

Source: Milenio Noticias

This case is interesting because it addresses the discussion on the conventionality of two controversial provisions of the Mexican Constitution: arraigo and pre-trial detention. For years, different national and international human rights organizations have been stressing that both provisions should be eliminated from the Constitution and other national legislation because they are contrary to international human rights law, fostering imprisonment based on false presumptions/suspicions and preventing victims from accessing justice.

The first of these, arraigo, is a pre-procedural measure contemplated in the Federal Code of Criminal Procedure of 1999 and in the Federal Law against Organized Crime of 1996 at the time the events of this case occurred. As of 2008, it was incorporated into the Mexican Constitution. The concept of arraigo allows the judicial authority, at the request of the Public Prosecutor's Office, to order the temporary custody of a person for 40 days (with the possibility of extending it for a maximum of 80 days) without charges being brought against them. The measure is granted whenever it is necessary for the success of the investigation, the protection of persons or legal assets, or when there is a well-founded risk that the accused will evade justice.

Regarding the second measure, pre-trial detention, is a precautionary measure that was regulated in the Federal Code of Criminal Procedure of 1999. Subsequently, it was modified and, as of 2011, the measure of mandatory pre-trial detention was incorporated into the Mexican Constitution. This provision requires the judicial authority to impose the precautionary measure of mandatory pre-trial detention without the need for the Public Prosecutor's Office to substantiate its request in the case of certain crimes classified as "serious". Through this precautionary measure, the judicial authority orders the detention of a person from the beginning of the criminal process in order to prevent them from evading justice.

Facts of the case

Jorge Marcial Tzompaxtle Tecpile, Gerardo Tzompaxtle Tecpile and Gustavo Robles López were arrested on January 12, 2006 on the Mexico-Veracruz highway after a police patrol searched their vehicle and found incriminating evidence. They were interrogated and held incommunicado for two days. Subsequently, an arraigo order was issued, which implied that they were transferred to an arraigo house of the Attorney General's Office in Mexico City. They were kept for more than three months until April 22, 2006, when Federal Public Prosecutor's Office filed charges against the victims for the crime established in the Federal Law against Organized Crime in the modality of terrorism. Later, the judge of the case ordered the opening of the criminal proceeding, and the victims were kept in pre-trial detention for a period of approximately two and a half years. On October 16, 2008, the judgment was issued, which acquitted the victims of the crime, ordering their immediate release.

The victims took their case to the Inter-American Commission in February 2007. On December 7, 2018, the Commission presented the merits report and due to the fact that the State did not comply with all of the recommendations made, it decided to submit the case to the IACourt on May 1, 2021.

IACourt's findings with respect to arraigo and pre-trial detention in Mexico

After analyzing the arguments and evidence presented by the parties, the IACourt concluded that since arraigo was a pre-procedural measure restricting liberty for investigative purposes, it was contrary to the content of the Convention, in particular the rights to personal liberty and the presumption of innocence of the person being held in custody. It also stated that the contents of the national legislation, both Article 12 of the Federal Law against Crime of 1996 as well as Article 133 bis of the Federal Code of Criminal Procedure of 1999, presented several problems: 1) They did not allow the person under an arraigo order to be heard by a judicial authority before the measure was decreed; 2) They restricted the freedom of a person without having sufficient elements to formally link them to a specific crime; 3) They did not refer to the specific factual conditions that had to be met to apply such a measure; 4) They established a purpose for the restrictive measure that was incompatible with the legitimate purposes for the restriction of personal liberty; and 5) They affected the right of the arrested person not to incriminate themselves.

During the public hearing, Judge Sierra Porto expressed that the way in which arraigo is implemented in Mexico is incompatible with the presumption of innocence and even incompatible with common sense. He also highlighted that, in the rest of the Americas, during a criminal proceeding probable perpetrators are first investigated, and if there is sufficient evidence, and if legal requirements are met, pre-trial detention is ordered to avoid evasion of justice, so it is very difficult to understand the arraigo in the terms proposed by the Mexican State.

In this regard, the IACourt declared that the State violated its obligation to adopt domestic law provisions contained in Article 2 of the American Convention in relation to the right not to be arbitrarily deprived of liberty (Art. 7. 3), to judicial control of the deprivation of liberty and the reasonableness of the term of pre-trial detention (art. 7.5), to be heard (art. 8.1), to the presumption of innocence (art. 8.2) and to not testify against oneself (art. 8.2.g), to the detriment of the victims Jorge Marcial and Gerardo Tzompaxtle Tecpile, and Gustavo Robles López.

Regarding pre-trial detention, the Court concluded that the national legislation establishing pre-trial detention, Article 161 of the Federal Code of Criminal Procedure of 1999, did not include any reference to the purposes of such measure, nor to the procedural dangers it would seek to avoid, nor to the requirement to analyze the necessity of the measure in comparison to other measures that are less harmful to the rights of the accused (such as periodic reports to the judicial authority, electronic monitoring, bail, etc.). In addition, said article also establishes mandatory pre-trial detention for specific serious crimes, without requiring an analysis of the necessity of the measure in light of the particular circumstances of each case.

Thus, the IACourt determined that the State failed to comply with its obligation to adopt domestic law provisions contained in Article 2 of the Convention in relation to the rights to not be arbitrarily deprived of liberty (Article 7.3), to judicial control of the deprivation of liberty (Article 7.5), and to the presumption of innocence (Article 8.2) of the three victims.

As part of the reparations, the Court ordered the State to repeal in its domestic legal system the provisions related to the arraigo as a pre-procedural measure to restrict liberty for investigative purposes. It also ordered the State to amend its domestic legal system in relation to pre-trial detention, since Articles 161 and 168 of the Federal Code of Criminal Procedure still have an identical wording to the one in force at the time of the facts.

The IACourt also expressed its concern about the 2019 constitutional reform under which the problematic aspects of pre-trial detention that had been pointed out remained and were even expanded in the form of mandatory pre-trial detention, and therefore ordered the State to adapt its legal system to make it compatible with the American Convention, taking into consideration the requirements that measures of this nature must meet in order to be in conformity with the aforementioned treaty (I/A Court H.R., Tzompaxtle Tecpile et al. v. Mexico, Preliminary Objection, Merits, Reparations and Costs, Judgment of November 7, 2022, Series C No. 470, para. 97).

Political repercussions of the judgment

On January 27, 2023, the IACourt notified the Mexican government of its judgment. Shortly after, the Ministry of Foreign affairs and the Ministry of the Interior announced through an official press release that they would comply with the resolution

However, a few days later, the Secretary of the Interior made a series of unfortunate comments, stating:

It is nonsense for the Inter-American Court to place itself above the Constitution and to disrespect the Mexican State. There cannot be any power above the Mexican State, which is, among other things, the guarantor of social, political and economic stability in this country... there cannot be any court, no matter how Inter-American it may be, that commits this nonsense of forcing the Mexican State to modify the Constitution.

Despite the unfortunate statements, national and international human rights organizations as well as academics, praised the judgment, emphasizing the importance of the Mexican state's full compliance with the IACourt’s order.

Concluding remarks

The IACourt did not address the application of mandatory pre-trial detention because the concept did not exist at the time of the facts. Mandatory pre-trial detention was introduced as part of the 2008 criminal reforms and was enhanced by the constitutional reform of 2019. However, according to the Court, this provision does not comply with the existing Inter-American standards on pre-trial detention. The IACourt could not rule on a measure that did not exist at the time of the facts when studying the case, yet in the reparations, it found that this new provision of mandatory pre-trial detention maintains and expands the "problematic aspects" analyzed in the merits.

The IACourt ordered the Mexican State to amend its domestic law and the definition of mandatory pre-trial detention; therefore, it would be up to the Legislative Branch (and the Permanent Constituent, since a constitutional reform is required) to carry out the necessary adjustments and reforms to comply with the Court's order. Unfortunately, pre-trial detention has become a key policy issue on the agenda of President Lopez Obrador and his party Morena, therefore, given that they have a majority in Congress and local legislatures, it is almost impossible to expect them to carry out these amendments. That being said, an interesting debate has arisen as to whether the Supreme Court has the power to reform the Constitution or whether this is an exclusive power of the permanent Constituent.

Regardless of the above, in the next few months, the Inter-American Court will be issuing a decision in the case of García Rodríguez and Reyes Alpízar v. Mexico, where the two alleged victims spent 17 years in preventive detention without conviction, so it is expected that the Court will reinforce the order to amend domestic regulations concerning mandatory pre-trial detention, and thus making the three branches of government feel the burden and the responsibility to carry out the necessary reforms to remove from the national legislation these provisions that clearly violate the American Convention on Human Rights.

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