B.3. The application of “arraigo” and the subsequent pretrial detention imposed on Daniel
García Rodríguez and Reyes Alpízar Ortiz
142. The representatives and the Commission have argued that the concept of arraigo
established in Article 154 of the 2000 Code of Criminal Procedure for the state of Mexico, which
was applied in the instant case, is not compatible with the content of the American Convention
and that it violates the rights to personal liberty and to the presumption of innocence as well as
the obligation to adopt provisions of domestic law (Articles 7 and 8(2)). They also reached similar
conclusions with respect to the preventive detention that was applied in this case. Therefore, it is
appropriate to examine these rules and determine whether they are contrary to the right to
personal liberty and to the presumption of innocence in light of the American Convention.
143. In order to carry out this analysis, the Court recalls that Article 2 of the American
Convention requires the States Parties to adopt, in accordance with their constitutional procedures
and the provisions of the Convention, such legislative or other measures as may be necessary to
give effect to the rights and freedoms protected by the Convention. 172 This duty implies the
adoption of measures of two kinds: on the one hand, the elimination of rules and practices that in
any way violate the guarantees provided under the Convention, 173 either because they disregard
those rights or freedoms or impede their exercise. 174 And, on the other hand, the promulgation of
laws and the development of practices conducive to the effective observance of those
guarantees. 175
144. As this Court has pointed out on other occasions, the provisions of domestic law adopted
for such purposes must be effective; this means that the State has the obligation to enshrine and
adopt in its domestic legal system all the necessary measures to ensure that the provisions of the
American Convention are actually complied with and put into practice. 176 In this sense, the Court
has indicated that States not only have the positive obligation to adopt the necessary legislative
measures to ensure the exercise of the rights enshrined therein, but they must also avoid enacting
laws that impede the free exercise of these rights and, at the same time, avoid suppressing or
modifying the laws that protect them. 177
145. The Court will now analyze the compatibility of the concepts of arraigo and pretrial or
preventive detention with the American Convention in the following order: a) the concept of arraigo
in Article 154 of the 2000 Code of Criminal Procedure for the state of Mexico; b) pretrial detention
in the 2000 Code of Criminal Procedure for the state of Mexico and in Article 19 of the Mexican
Constitution, and c) the application of arraigo and pretrial detention in the specific case.
a) The concept of arraigo in Article 154 of the 2000 Code of Criminal Procedure for the state
of Mexico
Cf. Case of Gangaram-Panday v. Suriname. Preliminary objections. Judgment of December 4, 1991. Series C No. 12,
para. 50; Case of Granier et al. (Radio Caracas Television) v. Venezuela. Preliminary objections, merits, reparations and costs.
Judgment of June 22, 2015. Series C No. 293, para. 389, and Case of Dial et al. v. Trinidad and Tobago, supra, para. 49.
172
173
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs. Judgment of May 30, 1999. Series C No. 52,
para. 207, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para. 116.
174
Cf. Case of Hilaire, Constantine and Benjamin et al. v. Trinidad and Tobago. Merits, reparations and costs. Judgment of
June 21, 2002. Series C No. 94, para. 113, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para. 116.
175
Cf. Case of Castillo Petruzzi et al. v. Peru. Merits, reparations and costs, supra, para. 207, and Case of Tzompaxtle
Tecpile et al. v. Mexico, supra, para. 116.
176
Cf. Case of “The Last Temptation of Christ” (Olmedo Bustos et al.) v. Chile. Merits, reparations and costs. Judgment
of February 5, 2001. Series C No. 73, para. 87, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra, para. 117.
177
Cf. Case of Castillo Petruzzi et al. v. Peru, supra, para. 207, and Case of Tzompaxtle Tecpile et al. v. Mexico, supra,
para. 117.
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