As a result of the discussions generated in the last few days in the Supreme Court of Justice of the Nation (“SCJN”), regarding the use of pretrial detention in Mexico, a series of questions have arisen in Mexican legal forums, consisting of determining whether or not it is possible for an article of the Political Constitution of the United Mexican States to be declared unconstitutional. Such questions may sound somewhat absurd, for how could a judge declare the Constitution unconstitutional? However, this has been the basis for several legal debates in Mexico, which are currently relevant due to the draft ruling that the SCJN plenary session prepared, which proposed the elimination of pretrial detention in Mexico. [1].
It should be remembered that unofficial pretrial detention is the possibility of the state to imprison a person automatically during his criminal process, without the judge being able to analyze the possibility of imposing another precautionary measure, directly attacking the principle of presumption of innocence.[2] The Constitution allows the use of unofficial pretrial detention through Article 19. Therefore, since it is provided for by the Constitution, it is presumed to be a constitutionally valid figure.
However, it must be borne in mind that the Constitution, in addition to being a formal document that contains the guidelines of the State and regulates the relations between citizens and the government, is a solemn document, which provides for a series of prerogatives that have the character of fundamental rights, whose hierarchy is superior to other legal norms. Therefore, the Constitution, as a general rule, is the supreme rule of the country, so that no rule of lower rank, whether law or regulation, can go against its content.
Therefore, it is pertinent to ask ourselves the following question: is it possible for an article of the Constitution to be declared unconstitutional because it goes against a human right? The simple answer is no. However, we must remember that, as a result of the constitutional reform on human rights in 2011, the first article of the Constitution provides that the norms related to human rights must be interpreted in accordance with the Constitution and international treaties, favoring at all times the broadest protection for individuals. This is known as the principle pro persona, which establishes that, in the event that a legal norm that is part of the Mexican legal system grants broader protection than another norm to a citizen, in terms of human rights, that norm must be applied and the norm with lesser protection must not be applied.
The aforementioned article seems to be very clear, since in the event of a contradiction between the Constitution and an International Treaty, the norm that grants the broadest protection to the governed should prevail, with the possibility of the Constitution not being applied. However, with the issuance of jurisprudence 20/2014 issued by the SCJN, a key aspect was determined:
“Derived from the final part of the first paragraph of Article 1 of the Constitution, when there is an express restriction in the Constitution on the exercise of human rights, the constitutional text shall prevail.”
The transcribed part of the jurisprudence provides that in the event of a contradiction between an international treaty and the Constitution in matters of human rights, the judge must apply the constitutional text over the treaty. Therefore, it is valid to ask the following questions: what happens when an article of the Constitution goes against a human right? How could an article of the Constitution not be applied, if the Constitution provides that the norms relating to human rights must be interpreted in accordance with the text of the Constitution?
The above questions are questions that the Ministers of the SJCN asked themselves in order to decide on the elimination of the informal preventive detention.
In the event that the SCJN had decided to eliminate the official pre-trial detention, due to its incompatibility with international human rights treaties to which Mexico is a party, we consider that it would have been a way to give full meaning to Article 1 of the Constitution and, consequently, to the 2011 human rights reform.
Thus, in the hypothetical case that the SCJN’s project had been approved, consisting of the elimination of informal preventive detention, it would have been the first time that an article of the Constitution had been declared unconstitutional, or unconstitutional[3]. However, the debate would not have ended with the expulsion of unofficial pretrial detention from the Constitution, since this precedent would have laid the groundwork for future discussions, since it would allow the possibility that any citizen could sue before a judge, the inapplication of a constitutional article, and directly apply an international treaty. In this way, the jurisprudential criterion 20/2014 would have been surpassed. However, since the bill was not approved, we believe that the SCJN justices missed an opportunity to change the status quo in the country in the area of human rights.
The SCJN project raised many questions that judges, litigators and constitutional lawyers should address carefully, because as mentioned throughout this text, this project would have opened the doors to a new constitutional paradigm in Mexico, which ensures the protection of human rights, in the broadest and most comprehensive manner possible.
REFERENCES
[2] Article 19. No detention before a judicial authority may exceed seventy-two hours from the time the accused is placed at his disposal, without being justified by an order of commitment to process in which the following shall be expressed: the crime with which the accused is charged; the place, time and circumstances of execution, as well as the data establishing that a fact has been committed that the law indicates as a crime and that there is a probability that the accused committed it or participated in its commission.
The Public Prosecutor’s Office may only request preventive detention from the judge when other precautionary measures are not sufficient to guarantee the appearance of the accused at trial, the development of the investigation, the protection of the victim, witnesses or the community, as well as when the accused is being prosecuted or has been previously sentenced for the commission of an intentional crime. The judge will order preventive detention in cases of abuse or sexual violence against minors, organized crime, intentional homicide, femicide, rape, kidnapping, human trafficking, home robbery, use of social programs for electoral purposes, corruption in the crimes of illicit enrichment and abusive exercise of functions, theft of cargo transportation in any of its modalities, crimes related to hydrocarbons, crimes committed with violent means such as weapons and explosives, crimes involving firearms and explosives for the exclusive use of the Army, the Navy and the Air Force, as well as serious crimes determined by law against the security of the nation, the free development of the personality and health.
[3] Article 1. In the United Mexican States all persons shall enjoy the human rights recognized in this Constitution and in the international treaties to which the Mexican State is a party, as well as the guarantees for their protection, the exercise of which may not be restricted or suspended, except in the cases and under the conditions established in this Constitution.
The norms relating to human rights shall be interpreted in accordance with this Constitution and with international treaties on the subject, favoring at all times the broadest protection for individuals.
All authorities, within the scope of their competencies, have the obligation to promote, respect, protect and guarantee human rights in accordance with the principles of universality, interdependence, indivisibility and progressiveness. Consequently, the State shall prevent, investigate, punish and redress human rights violations, under the terms established by law.
Slavery is prohibited in the United Mexican States. Slaves from abroad who enter the national territory shall, by this fact alone, attain their freedom and the protection of the laws. Any discrimination based on ethnic or national origin, gender, age, disabilities, social status, health conditions, religion, opinions, sexual preferences, marital status or any other that violates human dignity and has the purpose of nullifying or impairing the rights and freedoms of individuals is prohibited.
[1] On September 5, 2022, the ministers of the SCJN discussed the unconstitutionality action 130/2019 and the amparo in review 355/2021, whose projects proposed to inapply the informal preventive detention, however, the project was not approved.
[2] The principle of presumption of innocence is that a person who is being charged for the alleged commission of a crime must be presumed innocent until proven guilty.
[3] Inconventional means that a legal norm is incompatible with the American Convention on Human Rights, and must therefore be disregarded by the judge.
Emiliano Serratos Guzmán
Paralegal
