indirectly, at creating situations of de jure or de facto discrimination. 204 Likewise, when the
discriminatory treatment refers to the unequal protection of domestic law or its application, this
must be analyzed in light of Article 24 of the American Convention 205 in relation to the categories
protected by Article 1(1) of the Convention. The Court recalls that a difference in treatment is
discriminatory when it has no objective and reasonable justification, 206 that is, when it does not
pursue a legitimate end and there is no reasonable relationship of proportionality between the means
used and the purpose pursued. 207
173. In the case of mandatory pretrial detention, the differentiated treatment can be verified in
the fact that those accused of committing certain crimes will not have the possibility of having
control over or adequately defending themselves from the measure, since there is a constitutional
mandate that imposes the preventive measure of deprivation of liberty. On this point, it is
important to recall that Article 8(2) of the Convention stipulates that, during the proceedings,
every person is entitled, with full equality, to various minimum guarantees of due process. For this
Court, it is clear that the automatic application of mandatory pretrial detention without considering
the specific case and the legitimate purpose for restricting a person’s liberty, as well as his specific
situation with respect to others who, when also charged with crimes, are not covered by Article
19 of the Mexican Constitution, necessarily implies a breach of the right to equality before the law,
in violation of Article 24 of the American Convention, and to enjoy, with full equality, certain
guarantees of due process, in violation of Article 8(2) of said instrument.
174. For the above reasons, this Court finds that Article 319 of the 2000 Code of Criminal
Procedure for the state of Mexico and Article 19 of the Constitution as amended in 2008, which were
applied in the instant case (supra para. 164), contained - and continue to contain clauses in the
case of Article 19 of the Constitution - that, per se, are contrary to various rights established in
the American Convention. These rights are: the right not to be deprived of liberty arbitrarily (Article
7(3)), the right to have judicial control over the deprivation of liberty (Article 7(5)), the right to
presumption of innocence (Article 8(2)), and the right to equality and non-discrimination (Article
24). Accordingly, the Court concludes that the State violated these rights, in relation to the
obligation of adopt provisions of domestic law established in Article 2 of said treaty, to the
detriment of Daniel García Rodríguez and Reyes Alpízar Ortiz.
c) Regarding the application of arraigo and pretrial detention in the specific case
175. In the previous sections, the Court has determined that both the concept of arraigo
contained in Article 154 of the 2000 Code of Criminal Procedure for the state of Mexico and the
concept of pretrial detention contained in Article 319 of said Code and in Article 19 of the
Constitution as amended in 2008, were contrary to the American Convention, since they violated
the rights not to be deprived of liberty arbitrarily (Article 7(3); to judicial control of the deprivation
of liberty (Article 7(5)); to be heard (Article 8(1)); and to the presumption of innocence (Article
8(2)). Moreover, with respect to arraigo, the Court concluded that it also violated the right to be
Cf. Juridical Condition and Rights of Undocumented Migrants. Advisory Opinion OC-18/03 of September 17, 2003.
Series A No. 18, para. 103, Case of Ramírez Escobar et al. v. Guatemala. Merits, reparations and costs. Judgment of March
9, 2018. Series C No. 351, para. 270.
204
205
Cf. Case of Apitz Barbera et al. (“First Court of Administrative Disputes”) v. Venezuela. Preliminary objection,
merits, reparations and costs. Judgment of August 5, 2008. Series C No. 182, para. 209; Case of Ramírez Escobar et al.
v. Guatemala, supra, para. 272, and Case of Montesinos Mejía v. Ecuador, supra, para. 115.
206
Cf. Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A
No. 17, para. 46, Case of Flor Freire v. Ecuador. Preliminary objection, merits, reparations and costs. Judgment of August
31, 2016. Series C No. 315, para. 125, and Case of Guevara Díaz v. Costa Rica. Merits, reparations and costs. Judgment of
June 22, 2022. Series C No. 453, para. 49.
207
Cf. Case of Norín Catrimán et al. (Leaders, Members and Activist of the Mapuche Indigenous People) v. Chile. Merits,
reparations and costs. Judgment of May 29, 2014. Series C No. 279, para. 200; Case of Flor Freire v. Ecuador, supra, para.
125, and Case of Guevara Díaz v. Costa Rica, supra, para. 49
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