There has been an important debate about instructions from the Public Prosecutor’s Office regarding the use of pretrial detention, which implies legitimate differences or nuances between the different operators of the system, citizens and the political world. It is difficult for a political-criminal definition of the prosecution to generate unanimity of opinions, since behind it it is possible to demonstrate preferences, between higher levels of efficiency and effectiveness of criminal prosecution, and better levels of protection of rights and guarantees. A simile can be presented when regulating normatively the use of intrusive measures such as telephone interceptions, or the regulation of the autonomous powers of the police. In all these cases there are different political-criminal positions and visions.
Without prejudice to these legitimate differences, it is possible to conclude that there are red lines that the comparative evidence does not tire of showing, and that it is not desirable to cross. In this regard, it is possible to cite as an example the use of informal pretrial detention in Mexico, that is, the mandatory application of this measure for an extensive catalog of crimes defined in the law, which brings with it obvious injustices and disproportions that time is responsible for evidencing and that has recently generated the unanimous condemnation of the Inter-American Court of Human Rights for the violations that this rule has generated in its application. This, moreover, had been pointed out by the Supreme Court of Mexico itself for some time. At the other extreme, we can see cases where the unifocal vision or focused solely on the dimension of rights and guarantees can bring obvious cases of impunity, as happened years ago in our country in the case of the configuration of flagrante delicto, whose interpretation without reasonably uniform criteria by the prosecution and jurisprudence brought with it a legislative reaction that ended up amplifying it in its temporal limits and stripping it of its most reasonable contours.
It is not easy to find middle ground in these debates between efficiency and guarantee, but it is necessary: we need to avoid pendulum or extreme logics that at certain times see any action or autonomous prerogative of the police as an evil that must be avoided, and at other times the powers are extended to limits clearly incompatible with the rule of law. Moderation, correct data analysis and focus on real problems and solutions is what citizens demand from their authorities and especially from the government and the legislative branch.
In the case of the Prosecutor’s Office, it is comforting to observe the leading role that the Public Ministry and the National Prosecutor’s Office in particular have again in the debate on criminal prosecution policies. These are the attributions that we certainly entrust to this institution as a society and that we want them to use in complex moments for citizen security and the efficiency and effectiveness of the prosecution of crimes.
The instructions on the use of pretrial detention are a manifestation of these necessary powers that the institutional system gives and empowers the Public Prosecutor’s Office. Without prejudice to this, it is necessary to analyze the advantages and disadvantages in terms of its content, in order to verify whether it can be perfected, correctly understood or clarified, as de facto has been done.
On the one hand, it is noteworthy that the Public Prosecutor’s Office has highlighted a problem that had been dragging on for a long time and that is related to the lack of timely and reliable systems that allow the prosecutor’s office and the judicial system in particular to have real information on the identity of people who commit crimes. Without data, errors, identity theft, delivery of false identities, and a long road of impunity can be committed, allowing a person to commit several crimes and hypotheses of repetition or recidivism cannot be proven in their regard. In this it is necessary to highlight the problems that must be solved by the public system and in particular by the Civil Registry Service in the short term.
A second aspect that is important to highlight is the use of an attribution by the Prosecutor’s Office to try to standardize criteria of criminal prosecution, thus honoring the principle of legality and avoiding the proliferation of political-criminal visions or views in an institution that is characterized by its hierarchy and unity of action.
Thirdly, it is possible to notice the Reasonableness of the instructions in relation to the use of the legal power to extend detention when the prosecutor requires, as a result of the arrest of the accused and the lack of identity of the same, to clarify who it is and find the background for it. The deadline for the extension is tight and limited and reasonably proportional in most cases.
One aspect that deserves greater attention and analysis relates to the use of pretrial detention as a precautionary measure that the prosecutor in the case must use regardless of the type of crime committed or the legal interest affected. That aspect of the instructions mechanically considered does not appear proportionate and reasonable. This has also been evidenced by the jurisprudence of several courts in the country.
Pretrial detention is an extreme measure of deprivation of liberty without the person being tried, and on many occasions we have belatedly regretted the use of it in the case of innocent people, or those who did not deserve prison sentences. On the other hand, the use of short incarceration systems is not reasonable because of the high risks of criminal contamination in the prison system. In the latter case, and given the obvious problem of overcrowding and lack of control in the prison system, sending people without previous criminal careers, or with low levels of criminal commitment or first-timers, is dysfunctional and only risks perpetuating their criminal commitment or strengthening criminal ties in prisons or being recruited by gangs operating in the same prisons. In any case, the last word, obviously, is the judges of guarantee, who are called to decide in each case the application of the measure of preventive detention requested by the Prosecutor’s Office according to the merits of the same, the seriousness of the crime, the effective risk of flight that is accredited and the need to demonstrate by the prosecutor the material presuppositions of preventive detention.
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