Only in urgent cases, in the case of a serious crime as defined by law and when there is a wellfounded risk that the accused may evade justice, provided that cannot be brought before the judicial
authority because of the time, place or circumstances, may the Public Prosecutor’s Office, under its
responsibility, order his detention, stating the grounds and evidence that justifies its action.
In cases of urgency or flagrancy, the judge before whom the prisoner is presented shall immediately
confirm the arrest or order his release, according to the conditions established in the law.
No accused person shall be held by the Public Prosecution Service for more than forty-eight hours.
After this period, his release shall be ordered or he shall be brought before a judicial authority. Such
term may be duplicated in cases of organized crime. Any abuse shall be punished by criminal law.
All search warrants, which may only be issued by the judicial authority at the request of the Public
Prosecutor’s Office, shall specify the place to be inspected, the person or persons to be apprehended
and the objects to be sought, to which the search must solely be limited, and at the conclusion of
the search a detailed report shall be drawn up in the presence of two witnesses proposed by the
occupant of the place searched or, in his absence or refusal, by the authority carrying out the search.
43.
Article 161 of the Federal Code of Criminal Proceedings of 1999 established that:
An order of formal detention shall be decreed within seventy-two hours of the accused being placed
at the disposal of a judge, when the following requisites have been met: I. That the accused has
given a preliminary statement in the manner and under the standards established in the preceding
chapter or the record shows that he has refused to give a statement; II That it is demonstrated that
the alleged offense provides for the deprivation of liberty; III. That, with respect to the prior clause,
the probable guilt of the accused is demonstrated and IV. That there is no circumstance that would
fully exonerate the accused from responsibility or that would quash the criminal proceedings.
44.
Article 168 of the same Code established that:
The Public Prosecutor’s Office shall indicate the corpus delicti involved and the probable responsibility
of the accused as the basis for criminal proceedings. The judicial authority, in turn, shall examine
whether both requirements are vouched for in the record. The corpus delicti is the combination of
objective or external elements that make up the substance of a matter that the law expresses as a
crime, as well as the norms, should the classification so require. The probable responsibility of the
accused shall be proven when the existing evidence indicates participation in the crime, the
intentional or unintentional commission of the crime and the lack of any indication of a legal cause
or any reason to exclude his guilt. The corpus delicti and the probable responsibility shall be
demonstrated by any evidentiary means set out in the law.
b) The norms amended or adopted after the occurrence of the events in this case
45.
Article 19 of the Constitution of Mexico was amended in 2011 and 2019 and now reads as follows:
Detentions before a judicial authority in excess of seventy-two hours, counted from the moment
the accused is presented before the authority, are prohibited unless formal charges are presented
indicating the place, time and circumstances of such crime, as well as the evidence that an event
has occurred that the law classifies as a crime and that there exists the probability that the
accused has committed or has participated in its commission.
The Public Prosecutor’s Office may only request that the judge order pre-trial detention when
other precautionary measures are not sufficient to ensure the presence of the accused at his trial,
the development of the investigation, the protection of the victim, witnesses or the community,
as well as when the accused is on trial or has been previously convicted for having committed a
crime with intent. The judge may order preventive detention, by his own motion, in cases of
sexual abuse or violence against minors, organized crime, intentional homicide, feminicide, rape,
kidnapping, human trafficking, home robberies, use of social programs for electoral purposes,
corruption through unlawful enrichment and abuse of office, robbery of trucks in any of their
forms, crimes in the area of hydrocarbons, petroleum products or petrochemicals, the forced
disappearance of persons and disappearances committed by persons, crimes committed by violent
means, such as firearms and explosives designed for the exclusive use of the Army, Navy and Air
Force, as well as serious crimes determined by law against the security of the nation, the free
development of the personality and health.
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