168. With respect to the deprivation of liberty without a conviction in the context of a criminal proceeding, as established in Article 319 of the 2000 Code of Criminal Procedure for the state of Mexico, the Court notes that this rule only refers to the concurrence of the material assumptions, that is to say, to the punishable act and the participation of the accused, as well as the seriousness of the crime with which he is charged. It does not refer to the purpose of pretrial detention, nor to the procedural risks that it seeks to prevent, nor to the requirement to analyze the need for the measure in comparison with others that are less harmful to the rights of the defendant, such as alternative measures to deprivation of liberty. Therefore, as it is conceived, pretrial detention has no precautionary purpose whatsoever and becomes an anticipated punishment. 169. Similarly, this Court notes that the amended Article 19 of the Mexican Constitution, which establishes that the judicial authority “shall order mandatory pretrial detention” for certain crimes, suffers from the same problems that were pointed out for Article 319 of the 2000 Code of Criminal Procedure for the state of Mexico. 170. In both legal provisions, the precepts of the law also limit the role of the judge, affecting his independence (because there is no margin for judicial discretion) and implies an act that is exempt from any real control, since it is based on the mere application of the constitutional norm, preventing the accused from disputing the facts or challenging the grounds. 171. In sum, from a reading of Article 319 of the 2000 Code of Criminal Procedure for the state of Mexico, and Article 19 of the Constitution, when a criminal proceeding involves a crime that entails custodial penalties, it would seem that that, once the material assumptions have been proven, it is sufficient to verify that the statement was taken from the defendant (or that it is recorded that he refused to testify) for preventive detention to be applied. Thus, the aforementioned article prescriptively establishes pretrial detention for crimes of a certain gravity once the material assumptions have been established, without any analysis of the need for the precautionary measure in light of the particular circumstances of the case. Ultimately, we are faced with an automatic or ex officio preventive detention when certain crimes are alleged without the authorities having the ability to determine the purpose, necessity or proportionality of the precautionary measure in each case. 203 172. On the other hand, one could also analyze whether the mandatory pretrial detention established in Article 19 of the Constitution violates the principle of equality and non-discrimination established in Article 24 of the American Convention, since it introduces a different treatment between persons accused of certain crimes with respect to others. In this regard, the Court has established that the States must refrain from actions that are in any way aimed, directly or 203 It should be recalled that José Ramón Cossío Díaz, who testified as an expert witness in the instant case, explained that “the concepts of arraigo and mandatory pretrial detention provided for in the Mexican Constitution are not compatible with inter-American standards on personal liberty, judicial protection, judicial guarantees and presumption of innocence. Both constitutional measures are inadequate to comply with the purpose they seek to achieve and are disproportionate in that they unduly restrict the right to liberty with respect to the advantages that could be obtained from them.” The expert added that “since the entry into force of the reforms to Article 19 of the Constitution that establish the ex officio or automatic nature of pretrial detention, depending on the crime for which the accusation is made and the charges are brought, the exceptional nature of pretrial detention was eliminated.” Similarly, Rogelio Arturo Bárcena Zubieta, an expert witness offered by the State, declared during the public hearing that “mandatory preventive detention is not only contrary to inter-American standards, but it is also […] contrary to the Constitution itself, because it is true that the Constitution says that it can be ordered, that judges must order mandatory detention for certain crimes. But they forget to read that above that phrase, the Constitution also establishes that precautionary measures must comply with precautionary objectives, […], clearly, there is a problem […], of tension or direct violation of what is established in international standards, even with the division of powers, because if one interprets mandatory pretrial detention, as it has been interpreted in practice, it implies that the judges, [...], cannot exercise jurisdiction, because the lawmakers have already told them that what they have to do [...].” Written version of the expert opinion of José Ramón Cossío Díaz during the public hearing in this case (merits file, folio 1252); expert opinion of José Ramón Cossío Díaz during the public hearing in this case, and expert opinion of Rogelio Arturo Bárcena Zubieta during the public hearing in this case. -45-