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JSCA Presents Volume II of Study on Pretrial Detention and Criminal Procedure Reform in Latin America

The publication contains research articles completed as part of a project designed and directed by JSCA during 2010 and 2011 with the support of the Canadian International Development Agency (CIDA). The new stage of the project includes assessments of four countries that were not covered in the first: Argentina, Brazil, Mexico and Peru.

**Introduction

One of the main goals of Latin America’s criminal justice system reforms was the rationalization of the use of pretrial detention. New criminal procedure systems replaced inquisitorial ones in which pretrial detention was used as a general rule, an automatic consequence of the process, and an anticipatory sentence and introduced a paradigm with a protective logic under which pretrial detention is used only exceptionally and proportionally. Countries around the region adopted alternatives to pretrial detention and began to use hearings as a space for producing information and developing rulings.

As was established in Pretrial Detention and Criminal Procedure Reform in Latin America: Evaluation and Perspectives, a Spanish-language publication released by the Justice Studies Center of the Americas (JSCA) in 2008, these reforms have generated heterogeneous results. A few countries have managed to reduce the percentage of inmates who are held in pretrial detention. However, in most countries, the regulatory reform did not produce significant changes and the judicial system has continued to function in a fairly traditional manner. Despite the limited results of the regulatory change, in many countries a strong process of counter-reform developed in the area of protective measures. This process led to legislative changes aimed at establishing categories of crimes in which the application of pretrial detention is practically automatic, prohibiting the replacement of pretrial detention with any other measure, or incorporating new and controversial grounds for its use.

The purpose of this study is to analyze developments in the use of pretrial detention in countries that were not covered by JSCA’s previous study, namely Argentina, Brazil, Mexico, and Peru. A report describing the situation from a regulatory perspective as well as an empirical one has been generated in each of these countries.

It is important to note that these nations have implemented very dissimilar reform processes. Argentina, Mexico, and Peru currently have partial reforms in place. Argentina is a federal state with 23 provinces, some of which have a fully implemented adversarial system and some of which still use an inquisitorial system in which the judge investigates the case and issues a ruling. The case of Mexico is similar. It is also a federal country, and eight of the 32 entities have reformed their legislation. Finally, Peru has been moving towards an adversarial system since 2006 with the gradual implementation of a new criminal procedure code. The adversarial system is in place in 16 of the country’s 29 judicial districts.

The situation of Brazil is quite different because it has not experienced the reform processes observed elsewhere in Latin America. The Brazilian Criminal Procedure Code, which has national coverage and is thus applied in both the federal and state jurisdictions, has not been subjected to a comprehensive reform. Over the years, it has been changed through specific bills that address matters such as the police, criminal investigation, the organization of the courts, and protective measures. It is interesting to see that while Brazil has a fairly traditional procedure system, its use of pretrial detention (the percentage of inmates held in pretrial detention) is similar to that of the other countries discussed in this study.

During the period in which this publication was being produced, Brazil approved Law No. 12.403, which introduces protective measures other than pretrial detention. For example, defendants who have been released under these measures may be prohibited from entering certain places, contacting a specific person, or leaving the jurisdiction. They also may be placed under house arrest. (1) While this is an important step towards the consolidation of the legal paradigm of the use of pretrial detention under the protective logic, these measures are not being incorporated into an institutional structure that addresses the monitoring of these types of measures.

Each country presents an array of problems such as the length of time individuals are held awaiting a decision regarding pretrial detention –or the duration of the pretrial detention itself-, the duration of hearings, the degree to which oral procedures are used in the hearings, decisions issued outside of hearings, and other interesting findings.

For example, Argentina presents serious problems of efficiency in judicial management. It is common for months or years to pass following the conclusion of the investigation without the case going to trial due to enormous administrative difficulties related to the organization of trials. The maximum terms of pretrial detention are extensive, and some provinces simply have no maximum terms. Researchers also observed a lack of discussion between the parties of “reasonable terms” for pretrial detention.

One of the main problems reported in Mexico is that the 2008 Constitutional Reform mandates the use of pretrial detention in cases involving certain crimes. This process has encouraged states to adopt that list of crimes and add others. In general terms, one can say that the reform process in Mexico’s states presents dissimilar results in regard to the use of pretrial detention. Some present decreases in the percentage of inmates who are being held in pretrial detention while others reported increases in the use of this protective measure.

Finally, after observing 112 hearings in Peru, researchers found that judicial actors faced challenges when trying to gather the information required for the hearing during which the protective measure was to be discussed. They also observed excessively long hearings –which could cause the discussion to be diverted from key matters for establishing the defendant’s guilt or innocence- and the issuing of rulings outside of the hearing.

All of the reports indicate that there is a need to expand the discussion regarding the use of alternatives to pretrial detention and to address the lack of mechanisms for oversight or monitoring of these substitute measures.

One of the aspects that is lacking in Latin American reform processes is the creation of a system that would allow for information to be gathered on the specific situation of a defendant in order to evaluate the need for protective measures. There is also a need for supervisory mechanisms to verify compliance. These needs are evident in countries around the region like Argentina, Mexico, and Peru. The reports produced through the JSCA project describe a general lack of specific, concrete, and reliable information for the discussion of protective measures. Without a methodology for ascertaining the defendant’s procedural risk, the tendency is to automatically order protective custody based on poor information and automatism that sees this as the only response to crime.

The reports also suggest that there is a lack of mechanisms for overseeing the use of measures other than pretrial detention. Currently, there are no clear and reliable statistics regarding levels of non-compliance with substitute measures in Latin America.  Nor is there a space in which to produce monitoring reports that describe the degree to which a defendant has complied. In short, there is no specific institutional structure that addresses these and other aspects, and control is more or less symbolic or anecdotal.

These reports –and the contents of JSCA’s 2008 study on pretrial detention- lead us to conclude that there is a clear need to begin to work seriously on the discussion, design, implementation, and assessment of policies that favor the effective use of protective measures other than pretrial detention. This involves taking on the challenges present in each jurisdiction, which range from the excessive duration of the criminal procedure to a lack of opportunities to exercise the right to legal defense, the lack of oversight mechanisms for protective measures other than pretrial detention, and in some cases the counter-reform process.

NOTE:

(1) See Art. 319 of Brazil’s Law 12.403.