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ESTRATEGIAS DE LITIGACIÓN EN LAS MEDIDAS CAUTELARES | JUEZ CESAR ROBERTO HERNÁNDEZ AGUILAR. — Transcript

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0:05Good afternoon, everyone. The National
0:08Institute of Penal Sciences extends a
0:10warm welcome to the Judicial Week at
0:12INACIPE. In this fourth conference, we
0:15have the honor of hearing from Judge
0:17César Roberto Hernández Aguilar on
0:18the topic of litigation strategies for
0:20precautionary measures. He is a federal
0:24criminal judge in Mexico City at the
0:26Reclusorio Preventivo Varonil Sur. He
0:28was also a district judge from 2022 to
0:31July 2024 at the Federal Criminal
0:33Justice Center in the State of Mexico,
0:35based in Nezahualcóyotl. Judge,
0:38welcome to the National Institute of
0:40Penal Sciences. I ask Dr. Sergio
0:43Suárez Dávila, Academic General
0:45Secretary, to address us with a few
0:47words.
0:57Thank you very much. We are very happy.
1:05This week has been a great celebration
1:07for the National Institute of Penal
1:08Sciences to share the wisdom of our
1:10speakers with our legal community, whom
1:12we have already committed to returning
1:14for another round and another after
1:15that to hear from them. We have also
1:23invited them to become part of our
1:25faculty. I want to share that we have
1:30also agreed with the speakers that
1:31these talks will be recorded in a
1:33physical document. Booklets will be
1:41made where all the presentations will
1:43be captured so we can read, reread, and
1:45study them, and that is the intention:
1:47for the community to truly feel the
1:49possibility of having this closeness to
1:51knowledge at all times. Dear Judge, we
1:58truly appreciate your presence. We feel
2:03very honored to be able to hear from
2:05you, and well, we know of your
2:06background and we also know that, today
2:08, it is essential to have clarity in
2:10strategies. The procedure will always
2:16be like a game of chess. We know it is
2:19important. Gone are the days when it
2:23was only the Public Prosecutor who
2:25remained closed off and did not care
2:26what the defense was going to establish
2:28. Today it is fundamental—and if it
2:35is not done, it is a matter of bad
2:37strategy—to pay attention to how the
2:39defense, for example, is moving its
2:41pieces. For the defense, it is also
2:48important to address the specific
2:49strategy that the Public Prosecutor is
2:51following to prove, as we have seen in
2:53these talks, the crime, right? We saw
3:00it yesterday, the criminal injustice,
3:02this judgment of reproach, which will
3:04at a certain moment be reflected in a
3:06resolution, whether it be a conviction
3:08or an acquittal, depending on the
3:09strategy followed. Well, I don't want
3:14to dwell on this further, and we want
3:16to hear from you, Your Honor. Truly, I
3:19reiterate our gratitude for you being
3:21part of this very significant week for
3:23the National Institute of Penal
3:25Sciences. Welcome.
3:28Thank you.
3:36Before we begin, I don't think there
3:37are words to thank the National
3:39Institute of Penal Sciences enough for
3:41their support in holding these types of
3:42events. This week is very important
3:45because it culminates in Lawyer's Day,
3:47on July 12th. Being here at INACIPE is
3:50a true honor. Sharing the panel this
3:53week with judges like Judge Campos
3:54Malagón, who was here with you a few
3:56days ago, Judge Alcántara, Judge
3:58Ricardo Jeda, and Professor Shareni,
4:00who will be here tomorrow, and the
4:02invitation we received from INACIPE. It
4:07is a great honor to be here in this
4:09room, sharing knowledge with you that,
4:10from my experience, I hope can help you
4:12improve the quality of the
4:14administration of justice, because the
4:16administration of justice does not only
4:17belong to the judges; it belongs to us
4:19all. It is everyone's duty to do a
4:23proper job. If we all do an adequate
4:26job, with the excellence that is
4:28required, great results can be achieved
4:30. And as you know, this talk is titled
4:33"Litigation Strategies in Precautionary
4:36Measures." We will talk about that
4:39later, but I would like to start with
4:41the main theme of this talk, even if it
4:43seems I might deviate a little, but I
4:45hope my idea becomes clear by the end.
4:47Today, I want us all to walk away with
4:50the idea and the end of this talk will
4:53be this: that we must always put
4:55ourselves in someone else's shoes.
4:57Today we are going to learn that, to
4:59put ourselves in another person's place
5:01. And why do I say this? I would like
5:03you to participate during the talk. In
5:05all the conferences I give, I try to
5:07get you to participate, to answer a few
5:09questions. Don't worry, this isn't
5:11going to be a test or a quiz. They will
5:13be very simple questions, suggestive
5:15questions. To begin, which of you are
5:17still students? Raise your hand, please
5:20. students, which of you work in the
5:24Prosecutor's Office or are public
5:26prosecutors? Raise your hand, please.
5:28No, I hope the third part of this talk,
5:30which is focused on you, will be useful
5:32. And who are practicing lawyers? The
5:38vast majority who have to deal with the
5:40famous preventive detentions imposed on
5:42their clients. Today, I reiterate, the
5:45talk will be about putting ourselves in
5:47someone else's shoes. As a first point,
5:51who among you has obtained a driver's
5:53license? Raise your hand, I assume
5:56everyone, or the majority. And who
5:58among you says, "I live in the State of
6:00Mexico, but I want my driver's license
6:02from Mexico City?" And you have a
6:06relative, an uncle, a cousin, someone
6:08who gives you their proof of address in
6:10Mexico City; don't worry, we're not
6:12going to cancel anyone here. I just ask
6:15you to raise your hand if you have ever
6:17done that. No one has done it. Don't be
6:20shy, I'll raise mine, don't worry. I
6:22see a few hands raised. Agreed. Second
6:24point, and don't raise your hands for
6:26this one because here there is actually
6:27an infraction. Better to say if you
6:29know someone. How many of you know
6:32someone who has registered their
6:34license plates? Vehicle plates. I heard
6:37some laughter over there. Vehicle
6:39plates from the state of Morelos or the
6:41State of Mexico, because due to the
6:43cost of their vehicle, it's not worth
6:45it for them to get their plates in
6:46Mexico City. Do you know someone like
6:49that? I know quite a few, we all know
6:51someone. Agreed? And now something a
6:55bit more relaxed. How many of you have
6:58moved houses throughout the course of
6:59your lives? I have moved houses about
7:04six times. So, I assume you have also
7:06changed your address on several
7:08occasions out of necessity, for
7:10personal growth, or for school. Those
7:13of you who are students, you won't let
7:15me lie, often have to move to go to
7:16work. And what does all this have to do
7:19with precautionary measures? I asked
7:22this of those who are prosecutors and
7:23those who are lawyers. I want those who
7:26are prosecutors, those who are public
7:28ministers, to put themselves in the
7:29shoes of those people I just mentioned.
7:32I want you to put yourselves in the
7:33shoes of that person who has moved
7:35throughout the course of their life.
7:40And I want you to think that surely you
7:41at some point have done these types of
7:43procedures, which are indeed a bit of a
7:45trick, some little schemes to manage
7:47not to pay a certain tax or to obtain a
7:49personal document. I want you to put
7:53yourselves in the shoes of the person
7:55who is being charged or accused of a
7:56crime. Would you consider that to be a
7:59sufficient reason? for that person to
8:02be in prison for more than 2 years
8:03until they are given a sentence. Who
8:05among you says that person deserves
8:07pretrial detention? I don't see any
8:09hands raised anymore, but we all know
8:11someone who has done that type of
8:13procedure. Today's talk, I reiterate,
8:16is to put ourselves in another person's
8:18shoes. Many times in precautionary
8:22measure hearings, I have heard these
8:24types of arguments—arguments implying
8:26that because someone has lived in
8:28several homes, they must be in pretrial
8:30detention. Or that they got their
8:33license using an address that wasn't
8:35theirs, and therefore there is
8:36falsification of address, so the person
8:38must remain in pretrial detention
8:39throughout their entire process. Or on
8:43the other hand, that when they went to
8:44register their license plates, they did
8:46it in another state, and look, if they
8:48were untruthful about vehicle
8:50registration, they will also be in
8:51their criminal trial, and for that
8:53reason, they must be in pretrial
8:55detention. Let's always put ourselves
8:57in other people's shoes. That is what
9:00today's talk will be about, and I will
9:01divide it substantially into three
9:03sections. The first is, many of you are
9:06students, and I understand you might
9:08have some doubts regarding what a
9:10precautionary measure entails. We won't
9:13do a full review, don't worry, just
9:15specific aspects that every lawyer
9:17should master in hearings. And when I
9:20say should, I mean the world of how
9:21things ought to be, because you will
9:23see. And here, we aren't going to "
9:26cancel" anyone, but we are going to be
9:28critical of everyone: prosecutors,
9:30defense attorneys, and judges as well.
9:32Judges also issue arbitrary decisions
9:35when imposing precautionary measures.
9:37Furthermore, let's ask one last
9:38question before we fully begin with the
9:40talk on precautionary measures. How
9:42many of you consider that pretrial
9:44detention was arbitrarily imposed on
9:46your clients? So, don't worry, we are
9:51here to have a sort of roast of
9:53everyone: judges, defense attorneys,
9:55and prosecutors. And for that reason,
9:59like all the conferences I give, I will
10:01divide this into three sections. The
10:03first is how precautionary measures
10:05should be understood by judges. And
10:08when I say how they should, I mean the
10:10ideal, the minimum preparation required
10:12for judges to impose a precautionary
10:14measure. The second point is directed
10:19at prosecutors, because you won't lie
10:21to me either; many people would deserve
10:23to be in pretrial detention, but they
10:25aren't, because sometimes it is
10:27attributed to deficiencies in their
10:29conduct, deficiencies which, I
10:30anticipate now, are not always the
10:32prosecutor's fault. What do I mean by
10:37this? How many times have we heard this
10:40debate on social media where we say the
10:42judge released them because the
10:43prosecutor didn't do their job well? It
10:48seems like a game of pass the ball,
10:50seeing who we can blame. On one hand,
10:53there are newspapers that say, "A judge
10:55released a certain criminal." And there
10:57are those who say, "No, it was all the
10:59Public Prosecutor's fault." I am of the
11:01opinion that we must all assume our
11:02responsibilities. Everyone. If a person
11:08is released due to a procedural
11:09formalism, we reach an extreme where
11:11that formalism guarantees impunity for
11:13someone awaiting a conviction to ensure
11:15reparation for damages. Conversely, for
11:22the Public Prosecutor's Office—and I
11:24am not here to canonize the institution
11:26—those who work in the prosecutor's
11:28office, those who raised their hands,
11:30know the excessive workload that exists
11:32. Piles of case files. The files now
11:36look like old preliminary inquiries.
11:38For those who don't know what a
11:40preliminary inquiry is, those inquiries
11:42were formalized investigations where
11:44there were testimonies, inspections,
11:45expert reports, and the trial was just
11:47a ratification of what happened. What
11:50used to happen? A person who reached
11:53formal imprisonment was a person who
11:55was already sentenced. You rarely saw
11:57an acquittal in that system, and the
11:58files were already volumes upon volumes
12:00upon volumes. Today, that doesn't mean
12:04we should say, "Oh, because they have a
12:06lot of work, let them do it haphazardly
12:08." No, it doesn't work like that. But
12:10we must understand the circumstances in
12:12which we all find ourselves. I am not
12:15justifying the institution of the
12:17prosecutor's office at all, but when
12:19you have 500 cases and have to prepare
12:21four or five hearings daily for those
12:23matters, familiarize yourself with the
12:25files, added to the poor budgetary
12:26organization in the prosecutor's office
12:28regarding assigning more personnel to
12:30investigations, that is another point.
12:35So, today's idea is that, as Public
12:37Prosecutor agents, I will try to
12:39simplify the work a bit regarding
12:41justifying a measure for people who
12:42should indeed be in preventive
12:44detention. And the last part of this
12:48presentation will focus on strategies
12:50for the defense. Why? Because I have
12:53heard in other forums where there are
12:55lawyers—I hope there aren't any here
12:57—they say, "The burden of proof for
12:58measures lies with the prosecutor's
13:00office." And I totally agree, but then
13:03I don't have to do anything because if
13:05they don't fulfill it, I will
13:06practically achieve the non-imposition
13:08of preventive detention. We are going
13:13to try to change that perspective
13:14because you, as lawyers, can indeed do
13:16things to combat those measures that
13:18may possibly be arbitrary. That will be
13:22the strategy I will focus on today
13:23across these three points. We are going
13:27to start with what precautionary
13:28measures are for. I am going to stand
13:31up. I make it a habit to do this in all
13:33my talks. Afterward, we will take a
13:35seat to relax a little. Precautionary
13:39measures, according to the National
13:41Code of Criminal Procedures, have three
13:43purposes. These three purposes are very
13:46clear. To prevent the defendant or
13:49accused from evading the reach of
13:50justice. That is to say, to ensure they
13:53attend their hearings. To prevent the
13:56process from stopping. The second is
13:59the obstruction of the proceedings,
14:00preventing the procedure from being
14:02hindered or paralyzed. Why? Because the
14:09person might influence the manipulation
14:11of evidence, pressure a witness, or
14:12generate some risk in the development
14:14of the investigation. In short. And the
14:20last one, which is the most questioned,
14:22refers to the danger to victims, the
14:24offended, or the community. Why do I
14:28say it is the most questioned? The
14:30National Code of Criminal Procedures is
14:32over 10 years old. However, many people
14:36apparently do not know it, especially
14:38with the reform of December 31, 2024,
14:40but there is a tribunal out there that
14:42no one identifies or knows about. That
14:45tribunal occasionally issues rulings
14:47that do impact the Mexican penal system
14:49. That tribunal is called the
14:51Inter-American Court of Human Rights.
14:53It does exist, it does exist, and it
14:55does issue judgments. And it issued a
14:59judgment back in 1997, the Suárez
15:01Rosero case against Ecuador, which
15:03established the purposes of pretrial
15:05detention. What were those purposes?
15:12Only two. Of the three I just mentioned
15:17, only not obstructing the proceedings
15:18and the danger of evasion. From there,
15:23we have a first element of vice in
15:24precautionary measures, and this first
15:26element of vice is that the National
15:28Code establishes that precautionary
15:30measures can be imposed if there is
15:32danger to the victim, witnesses, or the
15:34community. What happens? That is not
15:40the case; there is another figure in
15:42the National Code to ensure the
15:43protection of victims. A measure that
15:46is even used arbitrarily in some
15:48criminal proceedings. This measure is
15:51known as protection measures.
15:54Protection measures are often confused
15:56with precautionary measures, and that
15:58is a first bias, a first flaw in our
16:00system. Now, when precautionary
16:04measures are imposed, they must
16:06guarantee or pass what is known as the
16:08proportionality test. If you want to
16:13delve deeper into what the
16:14proportionality test implies, I highly,
16:16truly highly, recommend this book; it
16:19is required reading for lawyers, Aharon
16:21Barak's book, *Proportionality*. It's a
16:24gem of a book, because he, along with
16:26Alexy, are the precursors or those who
16:28delved deepest into the proportionality
16:30test, and you might say: "Well, they
16:32said the same thing, right?". Alexy, an
16:35institution in legal philosophy and
16:38legal argumentation, when he spoke to
16:40us about the proportionality test, he
16:42only invoked three requirements:
16:44suitability, necessity, and
16:45proportionality. For his part, Aharon
16:48Barak is the one who has had the
16:50greatest influence in Mexico. Which of
16:53you has read this famous ruling on the
16:54recreational use of marijuana? And in
16:57that ruling, it speaks of four stages
16:59of the proportionality test. These four
17:02stages aren't something the court clerk
17:04just came up with, saying, "I'll invent
17:06them and with that, we'll guarantee an
17:08effective exercise of our rights." No,
17:11all of this comes from the Israeli
17:13court. Aharon Barak is Israeli. Aharon
17:17Barak explains to us that precautionary
17:19measures must have four indispensable
17:21elements. The first is a legitimate
17:24purpose. We will explain that further
17:26on. The second is a rational connection
17:29, which in Alexy we find as suitability
17:32. The third is necessity, and the
17:34fourth is proportionality. You can find
17:38Aharon Barak's work from the publisher
17:40Palestra, and it really is a wonderful
17:42work. Everything Aharon Barak writes is
17:46wonderful. He has books on fundamental
17:48rights. He has a book on judges and
17:51democracy. Don't spell Aharon Barak as
17:54A, but with A-h-a-R-o-N. Barak without
17:58a C, just the K. So we don't confuse
18:02this Aharon with any other Aharon.
18:04Aharon Barak explains to us what each
18:06of these requirements consists of. When
18:10we judges impose a measure, the first
18:12thing you have to know as students—I
18:14am addressing the students first—is
18:16that these precautionary measures are
18:18transitory, and that is something we
18:19all must learn. Precautionary measures
18:24are transitory, and when I say
18:26transitory, that also includes being in
18:28prison. It doesn't mean that—I'll get
18:33ahead of myself a bit—we inflate
18:34statistics and say, "We arrested the
18:36biggest drug trafficker in the State of
18:38Mexico." That is not a success in terms
18:44of issues of impunity or clarifying the
18:46facts. That is a media success. But
18:50media successes—and this is the first
18:52lesson I would like to leave you with
18:54—media successes are not synonymous
18:55with success in the justice system. Why
18:58? Because at the end of the day, many
19:02cases are poorly built, the cases fall
19:04apart, and that statistic of people who
19:06were in prison simply remains just that
19:08: smoke, statistics, which in legal
19:10doctrine we know as media criminology.
19:13If you want to delve into works on
19:15media criminology, I recommend
19:16Zaffaroni's text, "The Criminal
19:18Question." There he explains what media
19:21criminology consists of. But let's move
19:24on to precautionary measures themselves
19:26. A precautionary measure, I reiterate,
19:29is transitory and will always affect a
19:31right. There is a catalog of 14
19:35measures in Article 155 of the National
19:38Code, which I will not list at this
19:40moment, but they range, for example,
19:42from signing in at set times, posting
19:44an economic guarantee—which we will
19:46cover a bit later—an electronic
19:48bracelet, which judges usually put in
19:50your charge as lawyers, house arrest,
19:52and preventive detention, among various
19:54others. Why did I mention precautionary
20:00measures? Some in particular, because
20:03to justify a precautionary measure, you
20:05must pass this test. What do I notice
20:09in practice? In practice, and I heard
20:12this in a hearing, I almost feel that
20:14Aarón Vara would have had a heart
20:15attack if he had heard that. Someone
20:20said in a hearing, "Your Honor, I
20:21request preventive detention for this
20:23person because the measure is
20:24appropriate and therefore necessary,
20:26and that makes it proportional." These
20:30are different things; each requires a
20:32different justification. We will
20:35explain what they consist of and how to
20:37justify them, first for the public
20:38prosecutor's offices, and then how to
20:40contest them for the defense. Let's
20:43start with legitimate purpose.
20:47Legitimate purpose means that if I want
20:49to impose a measure, it must be because
20:51I want to achieve one of the ends I
20:52just referred to: non-obstruction of
20:54the proceedings or danger of flight.
20:58That is my goal: to ensure that the
21:00process proceeds as it should. And let
21:04me tell you something in advance: all
21:05the measures in Article 155 of the
21:07National Code fulfill a legitimate
21:09purpose because they all seek to
21:11neutralize some risk. For example,
21:14periodic signing-in seeks to ensure the
21:16avoidance of flight from justice. That
21:19is my legitimate purpose. That is the
21:21goal I seek with the precautionary
21:22measure. When we talk about separation
21:25from a position or suspension, it seeks
21:27to guarantee the goal of avoiding
21:29obstruction of the proceedings. Each
21:33measure has a specific purpose, and
21:35sometimes we tend to get confused and
21:38try to throw in all of 168, all of 169,
21:40and all of 170 to justify a measure,
21:43and that is not the way it works. We
21:47will see what issues have been observed
21:49during the development of the hearings.
21:52Afterward, we move on to suitability.
21:54In Alexy, you will find that
21:56suitability presupposes a legitimate
21:58purpose. Where will you find that? In
22:01Robert Alexy's book on fundamental
22:03rights. "A Theory of Constitutional
22:06Rights," to be exact. Suitability
22:12implies that what I want to propose,
22:14the measure I want to set, must have
22:15some degree of success. It must in some
22:21way neutralize the risk I want to
22:23address, the risk I want to diminish.
22:27The measure of periodic check-ins
22:29diminishes the risk of the person
22:30leaving for another country. Yes,
22:32especially if I set it for every week.
22:35If I set it weekly, it is possible for
22:37me to periodically evaluate that the
22:39person is not going to evade justice.
22:41If I set an economic guarantee, what
22:43would be the purpose? What will be the
22:45legitimate end: that they do not
22:47obstruct the proceedings or present a
22:48risk of flight. Each measure is linked
22:51to a legitimate end. We must not lose
22:53sight of that because we always say or
22:55invoke suitability as if it were
22:56already taken for granted. Suitability
23:01in the case of an economic guarantee
23:02implies that that money acts as an
23:04incentive so the person does not leave,
23:06that it serves as an incentive for the
23:08person to recover that guarantee when
23:09their process ends. For those of you
23:14who are students, the guarantee is not
23:15part of your fees. Or at least do not
23:18say so in the hearing, because that
23:19tends to happen. It happened to me on
23:23one occasion, during a break in the
23:25hearing, I was leaving and managed to
23:27hear them say, "No, it's just that
23:29those 50,000 are for the judge." And I
23:33said, "Excuse me?" Obviously, returning
23:37from the hearing or returning from the
23:39break, I did tell the person, if they
23:40tell you that money is for the judge,
23:42this is being recorded, they are lying
23:44to you, report it, they have to return
23:46it to you. So, do not engage in those
23:48practices because sometimes behind the
23:50break room door, behind the courtroom
23:52door, sometimes you can manage to hear
23:54something. So, be careful with what you
23:56say and careful with what you assert on
23:58those occasions. Well, in any case,
24:00since then, in all hearings, I always
24:02say it. Those who have been to my
24:04hearings, whenever there is an economic
24:06guarantee or whenever there is a
24:07deposit slip for the purpose of some
24:09benefit of conditional sentencing, I
24:11always reiterate to them that that
24:12money is theirs, that the money belongs
24:14to the accused or the sentenced person;
24:16it depends on the benefit or the
24:18precautionary measure being imposed. We
24:20will get to that a bit later. We have
24:23already moved past suitability. I
24:25repeat it only so it remains very clear
24:27. Legitimate end. I seek for the
24:30measure that I impose to seek to
24:34safeguard one of the ends I want when
24:35imposing the precautionary measure.
24:40Suitability, that said measure can in
24:42some degree fulfill that purpose. and
24:45let's move to necessity, which is where
24:47there are usually the greatest problems
24:49in justifying a measure. The principle
24:53of necessity implies that any other
24:55type of precautionary measure that
24:56could have the same degree of success
24:58must be ruled out. Why? Because if
25:04there is a less harmful measure, if
25:06there is a less harmful measure, it
25:07means I must prefer that less harmful
25:09measure. And I repeat the word harmful
25:13so many times because I have also heard
25:15in hearings that they say it is the "
25:17least lascivious" measure. And I am
25:19left, I am a bit frightened when they
25:21say that, because, what kind of measure
25:23would a lascivious measure be? Watch
25:25out, the word is harmful. If I detect a
25:28less harmful measure, that measure must
25:30be imposed. What happens in practice?
25:33And for this I will jump ahead a little
25:35to the second part of my presentation.
25:37In practice, what happens is that when
25:39they say it is necessary, they say it
25:41is necessary because with it I seek to
25:43guarantee the presence of the defendant
25:45. But that is not, that is not the
25:47principle of necessity. I have to
25:49justify it if I want to impose
25:51preventive detention as a Public
25:52Prosecutor, or rather request
25:54preventive detention. I have to explain
25:57why periodic reporting is insufficient.
26:00I have to explain why a financial
26:01guarantee is not going to make them
26:03stay. I have to explain why an
26:05electronic ankle monitor will not be
26:07enough or why there is no address where
26:09I could impose house arrest. That is
26:12what the principle of necessity refers
26:13to. All precautionary measures are
26:15governed by the principle of necessity.
26:18Moreover, even the one in the first
26:20fraction of article 155 of the National
26:22Code is governed by the principle of
26:24necessity, because in practice it also
26:26happens that a person who arrives on
26:28time for their hearing—the hearing is
26:30at 9:15, the person arrives at 8:45, it
26:33is their first hearing—they arrive,
26:35and even so, periodic reporting and a
26:37financial guarantee are requested. It
26:41is not enough to say that it is the
26:42least harmful. Why? Because judges can
26:45choose not to impose measures. Usually
26:48when the person arrives on time, when
26:50the person is always present at your
26:55hearings, I do not tend to impose
26:56measures. There is no reason to impose
26:59a measure because you would have to say
27:01it is insufficient for the fact that no
27:02measures are imposed on them to occur.
27:05That is the principle of necessity,
27:07justifying what other measures could be
27:11sufficient to achieve that end. And if
27:13there are none, then we go to the
27:15highest precautionary measure. The most
27:17serious one, you know it, preventive
27:19detention. And finally, the principle
27:22of proportionality or proportionality
27:24in the strict sense. This is often
27:29confused with the balancing of
27:30fundamental rights, with that famous
27:32balancing and weighting formula that
27:34Robert Alexy spoke to us about. And
27:37that is not the case. When we talk
27:41about precautionary measures,
27:43proportionality implies that the impact
27:45on a person's rights due to the
27:46precautionary measure must be
27:48proportional to the success achieved by
27:49that measure. That is what the
27:53principle of proportionality refers to.
27:58In other words, I am aware that I am
28:00going to affect your financial income,
28:02but, compared to the benefit of
28:03guaranteeing that you will come to your
28:05hearings, that you will be there on
28:07time, and that you will not evade the
28:09reach of justice, then the benefit can
28:11indeed be subject to the principle of
28:12proportionality; the imposition of that
28:14measure can be proportional. Once those
28:24four stages of the proportionality test
28:26have been passed, the corresponding
28:28measure is imposed. Another term that
28:34has been heard at some point is the
28:36famous "need for caution." And here,
28:41many people tend to invoke it strictly.
28:47If you look for the term—press Ctrl +
28:49F in your codes— "need for caution,"
28:51you will only find it in Article 141 of
28:53the National Code, which talks about
28:55arrest warrants. The need for caution
29:00is not in the National Code. Does that
29:02mean it is wrong to invoke it? No. But
29:05one must always go to the direct source
29:07. The need for caution implies what the
29:10reasons are for which I must impose
29:11that measure to prevent the obstruction
29:13of the proceedings or to ensure the
29:15person does not evade the reach of
29:16justice. And the need for caution is
29:20contained in two rulings of the
29:21Inter-American Court. The famous
29:24García Rodríguez case—pardon,
29:26García Rodríguez—which was the
29:28matter in which the Inter-American
29:29Court of Human Rights tells us judges
29:31that we must perform conventionality
29:33control regarding mandatory preventive
29:35detention. And on the other hand, the
29:39ruling that I just mentioned a few
29:41moments ago, the Suárez Rosero case.
29:43Since 1997, the Inter-American Court of
29:45Human Rights was already talking about
29:47the need for caution. And what do you
29:50know? 1997 versus 2024, where we say
29:53that, as a matter of criminal policy,
29:55we must impose mandatory preventive
29:57detention for certain crimes. For
30:03almost 30 years, the Inter-American
30:05Court has been telling us that the
30:06principle of equality is violated if we
30:08impose preventive detention for special
30:10preventive or general preventive
30:12purposes. For those who are unaware of
30:17what general prevention and special
30:18prevention refer to, they are the
30:20purposes of the criminal process.
30:24Whether it is to protect society or to
30:26isolate the person so that they stop
30:27committing crimes. That is what it
30:30refers to in general terms. Of course,
30:32there are even more complex definitions
30:34. It is valid to invoke the need for
30:39caution, provided it is supported by
30:41rulings from the Inter-American Court,
30:43because it is often mentioned in
30:44hearings as if it were a synonym for
30:46the need for caution referred to in
30:48Article 141 of the National Code of
30:50Criminal Procedures. Now, before moving
30:58on to the Public Ministry agents, I
31:00would like to make special mention of
31:01two types of precautionary measures
31:03about which I understand there is
31:05greater debate and greater difficulty.
31:07The first one, it is not so complex,
31:09financial security. When a financial
31:14security is requested as a
31:15precautionary measure, something I
31:17would like to emphasize to those who
31:19request it—sometimes the prosecution
31:21asks for it or sometimes the defense
31:22says, "Yes, let's set a financial
31:24security." Financial security is not
31:28set, and I will repeat this rule so
31:30that it is very clear, it is not set
31:32based on the eventual reparation of
31:34damages. The eventual reparation of
31:38damage has nothing to do with financial
31:40security. It often happens in hearings
31:44that Public Ministry agents or defense
31:46attorneys say, "The amount of the
31:48reparation of damages is one million
31:50pesos, and therefore I ask for a
31:51financial security as a precautionary
31:53measure to guarantee half of the
31:55reparation." What do you think? That
31:58will be overturned in an Amparo
31:59proceeding. Very simple, because there
32:02is another figure in the National Code
32:04to protect the possible reparation of
32:06damage. And that figure is known as a
32:09precautionary measure. They are
32:11completely different figures. This has
32:14already been resolved by the First
32:15Chamber of the Supreme Court of Justice
32:17of the Nation. So, how should the judge
32:19decide to set the precautionary measure
32:21of financial security? Well, the
32:23parameter is this. The financial
32:27security precautionary measure must
32:29generate or must be an incentive for
32:31the person charged or accused. You
32:35cannot impose an affordable financial
32:36security, because I have also heard
32:38that. They say, "I want a financial
32:40security that is affordable because I
32:42have limited resources." Yes, in
32:44principle, we will look for something
32:46that is affordable, but that will not
32:48be the primary parameter because it is
32:49a precautionary measure. I seek to
32:52ensure that you always come to your
32:53hearings. I seek to ensure that you are
32:56there every time you are summoned, that
32:58you do not miss them, and that if at
32:59any moment we have to carry out a
33:01procedure where you must be present,
33:03you are there. That the trial is not
33:05paralyzed because of you. Financial
33:08security, I repeat, is an incentive. Is
33:11that money going to affect you
33:13economically? Of course it is. How
33:15would you justify a financial security
33:17as a Public Ministry agent? You always
33:20do it when you look into their
33:21addresses, their jobs, and their
33:23economic income. This person earns
33:26approximately this much money per month
33:27. This person works at such a place.
33:30They aren't going to set exorbitant
33:32amounts either, because remember, that
33:33would violate the principle of
33:35proportionality. The financial
33:36guarantee is also subject to the
33:38principle of proportionality. For that
33:40reason, it has to be an incentive, but
33:42let's not go overboard. It has to be
33:44something that affects you, but also
33:47not something impossible for you,
33:49because that is something I would like
33:50to highlight, and I will jump ahead a
33:52bit regarding the defense. Let's not
33:55propose precautionary measures as a
33:57defense that we know our client will
33:59struggle to comply with. On one
34:03occasion, someone requested the
34:04imposition of an ankle monitor—not
34:06with me. Obviously, you know that many
34:11judges say the defendant must pay for
34:13the monitor; the person earned minimum
34:15wage, so how could they afford it? How
34:18can I offer that type of precautionary
34:20measure for my client if I know they
34:22won't be able to fulfill it? As lawyers
34:25, you must always propose a
34:27precautionary measure that you know
34:28your clients can comply with. If not,
34:31don't request that precautionary
34:32measure. Now, let's move on to what
34:36many of you surely want to hear: the
34:38topic of preventive detention. Bad news
34:41. Until before December 31, 2024,
34:48approximately half the judges in the
34:50country were not applying this
34:51provision. For those who are students,
34:56preventive detention means that due to
34:58being on a list or catalog in Article
35:0019 of the Constitution—kidnapping,
35:02extortion, etc.—by being charged with
35:04such crimes, the person would be in
35:06preventive detention throughout their
35:08entire trial without debate. According
35:13to the Constitution, a maximum of 2
35:15years. Litigators laugh at those 2
35:18years because criminal proceedings last
35:20longer, especially for crimes like
35:22kidnapping, organized crime, or human
35:24trafficking. Those trials, for those
35:29who are students, don't last long—
35:31about 6 or 7 years. They are complex
35:36trials where the intent is for people
35:38to be in prison solely based on the
35:40type of crime. Before December 31, 2024
35:45, we had a country divided into two
35:47regional plenaries. We still do, but
35:49I'm getting to the point of why fewer
35:51and fewer judges are choosing not to
35:53apply it. Before that reform, there was
35:56a criterion: the South-Central Regional
35:58Plenary and the North-Central Regional
36:00Plenary. Don't get complicated; if you
36:02don't know the geography, the list of
36:04states is there to tell you who is
36:05bound by what. Mexico City, criminal
36:07matters, and the State of Mexico, where
36:09I was also a control judge. The
36:11North-Central Plenary also governs the
36:13State of Mexico. What did the
36:14North-Central Plenary say? In an "
36:16amparo" proceeding, not in a criminal
36:18trial. When a person files for an
36:20amparo regarding the application of
36:21mandatory pretrial detention, the
36:23amparo should be granted so that the
36:25measure is not applied, and another
36:27option, such as justified pretrial
36:29detention, can be discussed. in
36:30parentheses, that which requires
36:32justification from the Public
36:34Prosecutor's Office. What was happening
36:36? Many judges would say, we will not
36:39apply it for several reasons, some for
36:41practicality, others out of a firm
36:43conviction that the Inter-American
36:45Court's rulings compelled us, saying, "
36:47Why would I want a suspension via an
36:49amparo? I’d rather just disapply it
36:52right now." Because I’ll tell you
36:54from my experience as a judge, when I
36:55first started, I did apply mandatory
36:57pretrial detention during my first few
36:59months. But as I said at the beginning
37:04of my speech, we must always put
37:05ourselves in the other person's shoes.
37:09I had a regrettable case, and not just
37:11one, several, where people of limited
37:13resources, in my experience, are those
37:16who suffer the most from mandatory
37:17pretrial detention. People have heard
37:23of the case of the savings club person,
37:25people who steal scrap metal that turns
37:27out to be train tracks, mandatory
37:29pretrial detention, in short, certain
37:31crimes where the accused are people of
37:33limited resources who live day to day.
37:39After a new, duly justified reflection,
37:41of course, I decided to stop applying
37:43mandatory pretrial detention. Half the
37:46country did, half the country did not.
37:49What happened? As many of you know,
37:52lawyers, public prosecutors, December
37:5431st, it is only allowed, no
37:59interpretation beyond the literal is
38:01permitted. We cannot make any kind of
38:04interpretation that seeks to disapply
38:06mandatory pretrial detention. What
38:09happens? Many judges from that moment
38:12on said, "I'm going to get into trouble
38:14with the council." Local judiciary,
38:17federal judiciary. and they decided to
38:20continue, from then on, applying
38:22mandatory pretrial detention. You will
38:24find fewer and fewer judges who will
38:26disapply mandatory pretrial detention.
38:30I will give you a very brief summary of
38:32the reasons why I continue to disapply
38:34mandatory pretrial detention. We must
38:37always put ourselves in the other
38:39person's shoes, always. For those who
38:43have been in prison—I hope none of
38:45you have, and if you have, I hope it
38:47was only for administrative issues,
38:48let's say alcohol, let's say the drunk
38:50tank, I hope only for that. But those
38:56who have been in prison or at a Public
38:58Prosecutor's agency, believe me, one
39:00day in that place, as an imputed person
39:03or as an accused, one day changes your
39:05life. Imagine living 6 years of your
39:10life in mandatory pretrial detention
39:12that eventually ends in an acquittal.
39:15How do we give a person their life back
39:17? Who, by the way, will already be
39:19subject to discrimination, eh, because
39:21everyone says they must have learned
39:23some tricks, even if they were
39:24acquitted. Whoever is in prison is
39:27already condemned to exclusion. In
39:31short, mandatory preventive detention.
39:34Why do some of us judges continue to
39:35lean toward non-application? Because we
39:40have the bad habit, or that is how we
39:42were taught, that there is a
39:43hierarchical structure of laws,
39:45treaties, that's what they say,
39:46Constitution, and somewhere someone
39:48almost, I think Kelsen would die all
39:50over again when they hear that, please
39:52tell them. They always say, it's
39:57Kelsen's pyramid. Well, if any of you
39:59fully read Kelsen's texts, Kelsen never
40:02spoke of a pyramid. We always tend to
40:05reproduce indirect sources and say what
40:07other people say. The author of the
40:10pyramid was actually an author named
40:12Adolf Merkl, a disciple of Kelsen.
40:15Kelsen never spoke of a pyramid, it was
40:17his disciple. Adolf Merkl. A bit of
40:21cultural trivia. We believe that the
40:23Constitution continues to be the
40:25supreme norm. But guess what? We have
40:27the contradiction of thesis 293/11. And
40:32that contradiction of thesis tells us,
40:34in addition to the first article of the
40:36Constitution, that the supreme norm in
40:38our country are the human rights
40:39contained in the Constitution and in
40:41international treaties. And that is
40:45technically known as the parameter of
40:47constitutional regularity. In other
40:51words, human rights are the
40:53constitution. If they are codified,
40:56they are the constitution. And we say,
40:58"But what can I do with Article 19 if
41:00it tells me to apply it literally?""
41:03Well, for those—is there any judge
41:05here, besides Judge Ojeda? Anyone else
41:08who is a judge? Right, all of us judges
41:12are constitutional judges. All of us.
41:15We don't have to belong to the local or
41:17federal jurisdiction. Why? Because we
41:19can all exercise diffuse control of
41:21constitutionality and diffuse control
41:23of conventionality. And the
41:26Inter-American Court obliges us, and
41:28sometimes we hear those comments where
41:30they ask, who are they to interfere
41:31with our sovereignty and what we decide
41:33? The problem is that you gave that
41:37power to that court. You obligated
41:39yourself to comply with the
41:40Inter-American Convention, with the
41:41American Convention on Human Rights.
41:43You obligated yourself. You told it,"
41:46You can have jurisdiction in matters
41:47where my country is contested for human
41:49rights violations. "If you gave it the
41:52power, why are you complaining? If you
41:58gave it the authority to decide over
41:59your sovereignty, then there is no way
42:01we can complain. The American
42:10Convention on Human Rights, or rather
42:12the rulings of the Inter-American Court
42:14, by virtue of the Convention, are an
42:15extension of the Convention. As an
42:21extension, they are human rights
42:23recognized in the Convention, and as
42:25such, they form part of the parameter
42:27of constitutional regularity. In that
42:32sense, we now have two articles of the
42:34Constitution that seem to contradict
42:35each other. One that grants authority
42:37to the human rights contained in the
42:39Constitution and treaties, and another
42:40that tells me to disapply them. But,
42:42guess what? Article 19 contains quite a
42:45few technical deficiencies. It says, to
42:51begin with, first point, literal
42:53interpretation, or beyond the literal.
42:58As lawyers, you know that if I am
42:59applying something literally, I am not
43:01interpreting it. And the problem is
43:03that when we speak of literal
43:05interpretation, we can understand
43:06various things. Not long ago, there was
43:11a draft by Justice Ríos Farjat
43:12regarding an unconstitutionality action
43:14that was never brought to a session.
43:18For those who didn't read that draft,
43:20it stated that when the Constitution
43:22says it shall order ex officio, it must
43:24mean it shall order the debate ex
43:26officio. That is a literal
43:29interpretation, said Justice Ríos
43:31Farjat. Yes, I am not going beyond the
43:33literal; I am simply performing a
43:35conforming interpretation, which is
43:36another method we will see in another
43:38talk. But note that literal
43:42interpretation is not so literal. And
43:44let's look at a case the Court had to
43:46resolve. The crime of rape. Article 19
43:50of the Constitution stated, or states,
43:52that this crime carries mandatory
43:54preventive detention. And what was
43:56happening? People who were accused of
44:00attempted rape, some judges would say,
44:02preventive detention. The problem with
44:06that is that we are making an extensive
44:08interpretation. And you know, lawyers,
44:13that when we speak of the first article
44:15of the Constitution, we can only
44:16perform extensive interpretation when
44:18it serves to enhance a human right, and
44:20we must perform restrictive
44:21interpretation when interpreting
44:23restrictions on a human right. That is
44:27the detail; it has been poorly written
44:29since the drafting of the reform.
44:32Another example that also comes from
44:34the same wording of Article 19:
44:36issuance of false tax receipts, that is
44:38, a forged document. But in reality,
44:43the criminal type that Article 19
44:44wanted to protect, according to the
44:46explanatory statement of the reform,
44:48was the famous" factureros "—in other
44:50words, invoices that cover up fake
44:52operations, which is a totally
44:54different thing. And if we want to
44:57interpret everything literally from
44:59there, it puts me in a tight spot. Be
45:01careful with these types of
45:03interpretations. And many will say, and
45:05the Inter-American Court also says this
45:07, many will say," But the Constitution
45:09already says so, you have to follow it.
45:13"The Inter-American Court stated in the
45:15Suárez Rosero case that just because a
45:17provision is in the law, it doesn't
45:18mean it ceases to be arbitrary. How
45:22many of you have seen legislation in
45:24the Middle East where the laws are
45:25completely arbitrary, or even their own
45:27Constitution? Just because it is
45:30written down or in the law doesn't mean
45:32it is fair. It can be totally arbitrary
45:36. For example, imagine a provision that
45:39says a judicial order is no longer
45:41required to conduct a search. Of course
45:43, that would be totally arbitrary. It
45:45would be legal, but it would be totally
45:47arbitrary. That is the problem with
45:49mandatory pretrial detention. Pretrial
45:52detention that is not justified.
45:54Pretrial detention that violates the
45:56principle of equality. And why does it
45:58violate the principle of equality?
46:01Because for the simple fact of being on
46:02a list of crimes, for that simple
46:04reason, the person will already be
46:06deprived of their liberty. And I return
46:08to the point, let's put ourselves in
46:10the other person's shoes. None of you,
46:13including myself, is exempt from a
46:15false accusation. None of us. We could
46:19all get into trouble tomorrow, and
46:21serious trouble at that. We could all
46:23be accused of kidnapping, have someone
46:25pin a responsibility on us. The lady
46:28from the savings pool was just going to
46:30collect her money. And guess what?
46:33Extortion, pretrial detention. The poor
46:37lady who dropped an object on the
46:39subway tracks, causing a service
46:40disruption, they also wanted to put her
46:42in jail. We can all be victims of the
46:47system. And since we can all be victims
46:50of the system, let's not judge the
46:51imposition of these measures
46:53indiscriminately. Because it is often
46:56very easy to say," It's already in the
46:58Constitution, and since it's already in
47:00the Constitution, then we have to
47:01impose it. "Be careful that it doesn't
47:03end up being us. Mandatory pretrial
47:06detention is unconventional; it
47:07violates human rights, violates the
47:09presumption of innocence, and violates
47:11the principle of equality, which are
47:13also in the Constitution. Pretrial
47:17detention is actually a measure that—
47:19if you know this author who is a great
47:21friend and an excellent speaker, he
47:23also has a book published by IACPE,
47:25Alejandro Navatobar—I don't know if
47:27you know his book on legal
47:29argumentation. He talks to us, or
47:31rather the book on punitive populism
47:32which I understand is sold out. In that
47:36book, he talks a lot about the
47:37proportionality test and also about
47:39these measures that seek to reduce
47:40judicial discretion. The imposition of
47:45a penalty does require judicial
47:46discretion because every crime is
47:48different. In the December 31, 2024
47:52reform, everyone threw their hands up
47:54and said," What do you mean, literal
47:57interpretation? "How to avoid applying
48:02mandatory preventive detention, but
48:03there was a little article that many
48:05missed or that many didn't complain
48:06about because they didn't see it. That
48:11part of Article 19 where it says that
48:13for certain crimes, they will seek to
48:15impose the highest penalty. Be careful
48:19with those types of provisions because
48:21the circumstances and manner in which
48:23the person committed the act will no
48:24longer matter. Judicial discretion is
48:28now being reduced and the goal is to
48:30impose higher penalties. Let us try not
48:34to fall into those types of errors
48:35because we could be the potential
48:37victims. I am going to move on to the
48:41second part of my presentation, which
48:43deals with the prosecutor's office, the
48:45Public Ministry agents. What happens in
48:49a case where one seeks to impose a
48:51measure? Well, the first thing is that
48:58we must understand that preventive
49:00detention is an exception and
49:01precautionary measures have a principle
49:03; not just preventive detention, all of
49:05them, all are governed by the principle
49:07of exceptionality. We must even
49:10prioritize the non-imposition of
49:11measures rather than the imposition of
49:13measures. It would seem that when we
49:16impose preventive detention, we have
49:17achieved success in a case. You have
49:20seen in the news, preventive detention
49:22is achieved for that person, but when
49:24the measure is changed, be careful,
49:26because for the media, for the media,
49:27there are alleged culprits. We as
49:31lawyers know they are presumed innocent
49:33or that the presumption of innocence
49:35applies, but in the media, a change in
49:37the measure for a person who was in
49:38prison is synonymous with impunity.
49:44Precautionary measures must be governed
49:46by the principle of exceptionality and
49:48be transitory. Let's stop thinking that
49:55having people in preventive detention
49:57signifies a degree of success in our
49:59criminal policy, which, by the way, in
50:01paragraph 157 of the Garcí Rodríguez
50:03ruling tells us that any imposition of
50:05preventive detention related to special
50:07or general preventive measures is
50:09unconventional. I cannot justify
50:15preventive detention by saying it is to
50:17prevent crime. Why? They have not been
50:19sentenced. I cannot prevent crime by a
50:22person who has not been sentenced.
50:25Imagine if you were the ones accused or
50:27charged and I, as a society, want to
50:29protect myself from you because you are
50:31criminals and deserve these measures.
50:34It is ultimately special prevention. No
50:37state of emergency justifies the
50:38violation of your human rights. All of
50:42you, I hope you are never accused or
50:44investigated, all of you are subject to
50:46the principle of the presumption of
50:47innocence. Precautionary measures must
50:54not be intended for special or general
50:55prevention, because that is
50:57unconventional. Paragraph 157 García
51:01Rodríguez. Now let's move on to how to
51:05justify pretrial detention. So, if I am
51:08a Public Prosecutor. First point, I
51:13already told you that there are only
51:15two purposes because the third is not
51:16recognized by the American Convention
51:18or the Inter-American Court. First
51:22point, often they try to justify the
51:29imposition of measures under the famous
51:31informative slogans. Let's not fall
51:34into that. What is an informative
51:36slogan? An informative slogan, you can
51:40find it or see it better explained in
51:42the book on preliminary hearings, which
51:44is a Didot collection also produced in
51:45agreement with the Ubijus publishing
51:47house here in Mexico. Preliminary
51:50hearings. It is a litigation collection
51:52directed by Professor Alberto Binder.
51:56An informative slogan implies a phrase
51:58that we believe substitutes for
52:00argumentation. What happens in hearings
52:02? And notice the contradictory nature
52:04of the arguments in real hearings. One,
52:08they will flee because they don't have
52:10a house. Okay, maybe. And another, they
52:15will flee because they have houses and
52:17they have money. If I don't hear it in
52:20one hearing, I hear it in another.
52:22Those are the informative slogans.
52:25Which, by the way, some data on
52:27pretrial detention and on the people
52:28who are under this precautionary
52:30measure will be distributed here by
52:32some colleagues who are supporting me
52:33with a small pamphlet containing very
52:35general guidelines and theses that I
52:37hope may be useful to you. These
52:40informative slogans do not substitute
52:44for argumentation. And I want to
52:49distinguish here regarding the
52:50application of suitability and the
52:51necessity of imposing a measure. The
52:57fact that a person is poor or rich has
52:59nothing to do with the risk of flight.
53:04What I have to justify as a Public
53:06Prosecutor in a hearing is to what
53:07extent that will generate a risk of
53:13flight from the action of justice.
53:15Justify it. Why? Because, watch out,
53:18there are people who do not have a
53:19fixed address and, guess what? They do
53:21have roots determined by their place of
53:23residence. Yes, they do. People who are
53:25parking attendants, people who wash
53:27cars in certain housing complexes, have
53:29roots determined by their place of
53:31residence, even if they don't own a
53:32house. The idea of justifying a
53:39precautionary measure as a Public
53:40Prosecutor, especially when talking
53:42about the principle of suitability, is
53:44how the fact that they have several
53:45addresses or don't have several
53:47addresses implies a danger that the
53:49person will flee from the action of
53:50justice. We have to justify it. Let's
53:56leave those informative slogans behind
53:58because I have also heard another one,
54:00and that one is typical. Since he knows
54:06the maximum penalty for this crime is
54:0850 years, they state it as if it were
54:10some lethal piece of conventional
54:11wisdom. It’s like a striker's
54:13diagonal run in soccer. With that, I'll
54:15score a goal against the judge, right?
54:18They say, any person would prioritize
54:20their freedom and therefore will evade
54:22the justice system. That is an utterly
54:26fallacious argument. The fact that they
54:29impose a high penalty on us is an
54:31expectation in all proceedings. All
54:32crimes have a minimum penalty and all
54:34crimes have a maximum penalty. If this
54:37were a valid argument, believe me,
54:38everyone here who could be accused or
54:40charged would be in pretrial detention.
54:43Everyone. The argument that they will
54:49prefer their freedom, you have to
54:50justify it. You have to justify why
54:55that measure will neutralize that risk,
54:57to what degree it will fulfill it, and
54:58why other measures are insufficient.
55:05That is what I mean by not using
55:06informative slogans, because I've even
55:08seen it, I've seen it written down from
55:10afar. I'm sitting in the courtroom and
55:13I see that they have the speech ready.
55:16Maximum penalty. Be careful with the
55:19issue of the maximum penalty, too. Two
55:22issues. The Inter-American Court has
55:25said that the maximum penalty cannot be
55:27the only parameter for imposing
55:29pretrial detention. And a second point
55:32regarding the maximum penalty. I always
55:35invite everyone to read the entire
55:37article, the entire subsection. If you
55:43read 168 in the subsection that refers
55:45to the maximum penalty, it has a
55:47conjunction; it says the maximum
55:48penalty and, meaning, not just the
55:50maximum penalty, but also the person's
55:53behavior regarding it. Justify it. We
55:58cannot just allege the maximum penalty
56:00or the criminal offense." Because it's
56:02kidnapping, pretrial detention. "That
56:05is a fallacy. Because if you were
56:07accused of kidnapping, you would
56:09rightfully ask," Is that proportional?
56:11Just because of the type of crime I'm
56:13accused of? "One must always justify
56:18suitability, necessity, and
56:19proportionality. Or if you want to
56:22tackle the whole test, a legitimate aim
56:24. But a legitimate aim is already in
56:25the Constitution. Clarification of the
56:28facts, avoiding impunity for the
56:30culprit, guaranteeing reparation for
56:32the damage, protecting the innocent, in
56:34short. Precautionary measures must be
56:38governed by those four assumptions and
56:40not be limited to famous informative
56:42slogans. Finally, We have noticed
56:53sometimes, as lawyers, that when a
56:54precautionary measure is requested, a
56:56piece of advice for public prosecutors
56:58is that, as a general rule, the two
57:00purposes sought to be protected by the
57:02measure—that is, preventing flight
57:04and preventing the obstruction of the
57:06proceedings—if I invoke or ask for a
57:08measure for both, I am generally
57:10incurring a contradictory argument. Why
57:18do I say this? They say," He is going
57:21to flee and also avoid the obstruction
57:23of the proceedings because he will
57:24influence witnesses, he will influence
57:26the evidence. "How? Either he is going
57:29to flee or he is going to stay. Right
57:32there, we incur a contradiction. Be
57:34careful, public prosecutors. When we
57:37seek the imposition of a measure, as a
57:39general rule—and when I say general
57:41rule, there are exceptions—as a
57:42general rule, it is either one or the
57:44other. I cannot say there is danger to
57:48the victims because he is going to flee
57:49. How is he going to go to another
57:52continent and influence or pressure the
57:53victims from there? There is a
57:55contradiction right there. Be careful.
57:59When requesting a precautionary measure
58:01as public prosecutors, my advice is to
58:03focus on a single purpose to eradicate
58:05as a reason for the imposition of the
58:07measure. If you seek, for example, the
58:09protection of the victim, that is fine.
58:12Perhaps a judge will tell you they will
58:13impose it for that, but they might not.
58:19But let's not propose measures to
58:21guarantee incompatible ends, because as
58:23a judge, that prevents me from even
58:24passing the suitability test, because
58:26they do not meet the degree of success
58:28to justify either preventing flight or
58:30preventing the obstruction of the
58:31proceedings. As public prosecutors, we
58:37unfortunately have the burden of
58:38justifying any type of measure. And
58:43here we go. What would the argument be
58:45when we talk about preventive detention
58:47? Suitability. How does preventive
58:50detention guarantee that the person
58:51will not evade the action of justice?
58:53It guarantees it completely. Preventive
58:56detention easily passes the suitability
58:58section. It is suitable for preventing
59:00flight. Sure, because you are going to
59:01keep them locked up. Well, it depends
59:03on what kind of actor it is, right?
59:05There are actors that not even prison
59:07stops; they are unbreakable. You will
59:09know what kind of correctional
59:10facilities I am referring to. Maximum
59:12security. They escaped from us. Well,
59:16the problem lies in necessity. We say
59:20—and that is another informative
59:22slogan. They say," The others are
59:25insufficient. "Hmm. Why are they
59:29insufficient? Because they do not have
59:31a fixed address. Aha. And because they
59:34don't have a fixed address, they won't
59:35be able to sign in. And because they
59:38don't have a fixed address, they won't
59:40be able to post bail or wear an ankle
59:41monitor or any other less invasive
59:43measure. They have to justify the
59:49necessity, why the other measures are
59:50insufficient, and sometimes that is the
59:52argument or the weakest link in the
59:54chain when it comes to justifying
59:56pretrial detention. And finally, on
1:00:00proportionality. When they say it's
1:00:02proportional, it's basically just them
1:00:04saying, in short, it's proportional. No
1:00:09, it has to be proportional because
1:00:10that invasion of the person's rights is
1:00:12justified to neutralize all procedural
1:00:14risks, whatever you want to call them,
1:00:16need for caution based on the
1:00:18convention, or danger of flight, or
1:00:20avoiding obstruction of the proceedings
1:00:22. That's what it's about. Another
1:00:28detail before moving on to the defense,
1:00:30the famous procedural risk reports. In
1:00:38practice, even though the code refers
1:00:40to these types of studies being done by
1:00:42an institution known as the
1:00:43precautionary measures unit, who does
1:00:45them in practice? What was formerly
1:00:49known as the SENAPI. And they say,"
1:00:52Well, the SENAPI evaluator went to the
1:00:54address and asked if they knew him, and
1:00:56they didn't know him. "So, pretrial
1:00:59detention." Yes, but you asked the
1:01:01condominium security guard, the one
1:01:03they just hired. "How could it be
1:01:06possible for him to know where the
1:01:07person lives? Advice: a report from the
1:01:11precautionary measures unit will always
1:01:13be better justified than a report from
1:01:15what was previously known as SENAPI,
1:01:17because you can easily spot many biases
1:01:20in a SENAPI report. I have seen at most
1:01:24, just one where it says there is no
1:01:26risk. In all of them it's high risk, in
1:01:28all of them it's the worst criminal, in
1:01:30all of them the poor guy living
1:01:31day-to-day, if you let him go he's
1:01:33going to kill 10 people, right? Be
1:01:35careful with those types of reports
1:01:36which, by the way, are not binding on
1:01:38us either. We have to evaluate two
1:01:40aspects, and there goes the last piece
1:01:42of advice for the purposes of
1:01:43presenting precautionary measures.
1:01:46Since it is a technical report that
1:01:47talks about risks and is therefore a
1:01:49technical opinion, I don't call it an
1:01:51expert report, but in a strict sense,
1:01:53it could be evaluated as one. What does
1:01:56that mean? That when we talk about an
1:02:00expert report, we have to evaluate two
1:02:02aspects, and we must take care to
1:02:03justify it to avoid the judge thinking
1:02:05the expert has biases. First, when we
1:02:09talk about an expert, we have to
1:02:11evaluate the expert's credentials. What
1:02:14are credentials? What courses do they
1:02:16have? What training do you have on the
1:02:18subject? How much experience do you
1:02:19have in the field? Have you ever been
1:02:21subject to any administrative or
1:02:23criminal liability? Have you ever
1:02:25received a warning regarding your
1:02:27reports? Anyway, that is what an
1:02:31expert's credentials refer to. On the
1:02:34other hand, the methodology. And it
1:02:37happens a lot that you ask, or they
1:02:39always ask in those hearings. And what
1:02:41method did you use, expert? Inductive,
1:02:44deductive. Everyone who knows even a
1:02:47little about methodology knows they are
1:02:48incompatible methods, at least for the
1:02:50same point. It is either deductive or
1:02:52inductive, depending on the point. So,
1:02:55from there, there is no way to save or
1:02:57justify them. Always question the
1:03:00methodology, always see what
1:03:01methodology was employed, what were
1:03:03their conclusions, are the tests they
1:03:04performed consistent, how did they
1:03:06reach that information, did they really
1:03:08get to the bottom of the matter to see
1:03:10if the person lived there or not? That
1:03:12is what assessing the expert's
1:03:14methodology refers to. I reiterate,
1:03:16many times they are not experts, they
1:03:18are technicians dedicated to doing this
1:03:20, but we cannot stop evaluating it
1:03:21rationally. And please, I also ask this
1:03:24of all parties. When we invoke rules of
1:03:30logic, another situation, I have heard
1:03:32many times that they say," Well, it
1:03:34doesn't seem logical to me. "" And well
1:03:36, it breaks the rules of logic. "It is
1:03:39not logical that this person will stay
1:03:41because since they have a company, well
1:03:43, that is not logic. The logic referred
1:03:46to by rational assessment refers to
1:03:48that. Rules of logic, principle of
1:03:51identity, sufficient reason, excluded
1:03:53middle, in short, in addition to formal
1:03:55and informal fallacies. That is what
1:03:58the rules of logic refer to. So, be
1:04:01careful with that argumentation when
1:04:02trying to support preventive detention.
1:04:06We don't just have to say why the
1:04:08person has no domicile and why that
1:04:10will be enough for them to abscond. We
1:04:14also have to say how that can be a risk
1:04:16. For example, there are people with
1:04:19high economic income who have five
1:04:21addresses, but who have never left the
1:04:23country. They have roots in the
1:04:25community. Of course, there are people
1:04:28who have no income and, I reiterate,
1:04:30they do have roots determined by their
1:04:32domicile. Let's not forget that the
1:04:35burden of proof lies with the Public
1:04:37Prosecutor's Office. Let's go now to
1:04:41the point that might interest those who
1:04:43are defense attorneys, who by the way,
1:04:45I recommend within that collection from
1:04:47Didot and Ubius, if you want a specific
1:04:49book that has to do with what I just
1:04:51explained, the book by Diego Salamea
1:04:57with a Z, hearings other than the trial
1:05:00. There, the hearing for precautionary
1:05:03measures and the review of
1:05:04precautionary measures is explained,
1:05:07which is another point to cover before
1:05:09closing. Review of precautionary
1:05:11measures. You know that pretrial
1:05:13detention cannot exceed 2 years and
1:05:14that when it exceeds 2 years, the
1:05:16precautionary measure must be reviewed,
1:05:18or it is usually requested by the
1:05:20defense. Public prosecutors, beware,
1:05:23you must justify the three sections of
1:05:25that determination, of that thesis. It
1:05:29is not enough to just say the case is
1:05:31complex, because most cases, since we
1:05:33live in a complex society, guess what?
1:05:35They are complex. You have to justify
1:05:38three elements. And when I say all
1:05:39three, I mean all three. If all three
1:05:41are not justified, the measure must be
1:05:43changed. For those who are students,
1:05:47the three types or three arguments that
1:05:49the Public Prosecutor must present: the
1:05:50first relates to the complexity of the
1:05:52case. Justify that the case is so
1:05:57complex that it has caused or led to
1:05:58the case being delayed. In addition to
1:06:02the complexity of the case, the actions
1:06:04of the authorities. What have the
1:06:06authorities done to move the case
1:06:07forward? And it is up to the Public
1:06:09Prosecutor to justify that, not the
1:06:11judge. Remember that the system is
1:06:13accusatory for a reason. The functions
1:06:15of the one who accuses and the one who
1:06:16judges are divided. We judges are only
1:06:19referees; it doesn't mean we are
1:06:20washing our hands of it—though some
1:06:22do—but it doesn't mean washing our
1:06:24hands. In addition to the complexity of
1:06:28the case and what I mentioned about the
1:06:30actions of the authorities, one must
1:06:32justify that this is not attributable
1:06:34to the defense. But when there is an
1:06:38indictment from 2 years ago, how can
1:06:40you say it is the defense's fault that
1:06:42the case is delayed? And there are
1:06:45truly trials that, after the indictment
1:06:47, have nothing. I am going to talk
1:06:50about indictments from 2016. When I
1:06:52arrived at the Federal Criminal Justice
1:06:54Center in Nezahualcóyotl, I arrived in
1:06:572022 as a judge. My first trial was
1:07:01from an indictment from 2016. The trial
1:07:04took place 6 years later. Just imagine.
1:07:09I mean, fortunately, the sentence was a
1:07:11conviction because yes, the individuals
1:07:13were evidently criminally responsible
1:07:14for the crime of kidnapping, but
1:07:16everyone should know that the people
1:07:18subject to these measures are lives,
1:07:20not numbers. In the hands of the judges
1:07:25and the public prosecutors, and in the
1:07:27future, starting in September, it will
1:07:29be in the hands of the judges who
1:07:30arrive. I hope we have the
1:07:33responsibility to assume that those we
1:07:35judge are people, not numbers. Why?
1:07:39Because there's always someone who says
1:07:40," I don't schedule hearings on Fridays
1:07:42, and I won't deny it. "" It happens in
1:07:45some places, they don't schedule
1:07:46hearings on Fridays, just two hearings,
1:07:48so cases get delayed. "I saw a hearing
1:07:51somewhere that was scheduled as far out
1:07:53as 2027. I said, I mean, that can't be
1:07:56possible. That will be solved in
1:07:58September. Let's wait. I don't know if
1:08:00you're asking me. I don't know. Let's
1:08:04move on now to the topic of defenses.
1:08:08Red flag for the defense. Well, if you
1:08:11are students, if any of you are neither
1:08:13students nor lawyers, meaning you
1:08:15aren't studying law. You just came, oh,
1:08:17look. Well, I hope you never have any
1:08:20legal trouble, but if you do. But if
1:08:23you do. Here it is. Red flag for a
1:08:26lawyer. Lawyer red flag. A lawyer who
1:08:29tells you the burden is on the Public
1:08:31Prosecutor's Office and therefore won't
1:08:33do anything regarding precautionary
1:08:34measures. I've seen that in some places
1:08:37they say," It's just that the burden is
1:08:39on the Public Prosecutor's Office. "" I
1:08:41don't have to prove to you that I have
1:08:43a residence. "" I don't have to prove
1:08:45to you that I have established roots
1:08:47through my family home. "" Why do I
1:08:49have to prove to you that I haven't
1:08:50violated precautionary measures? "It is
1:08:53the Public Prosecutor's job, and in
1:08:55principle yes, of course it is the
1:08:57burden of the Public Prosecutor, but as
1:08:59lawyers we also have a responsibility
1:09:01to the people we represent.
1:09:04Indispensable. For example, we can't
1:09:10ask for house arrest if we don't even
1:09:12know where the client lives or if that
1:09:14information isn't in the file. To
1:09:17mention an example, as a lawyer you
1:09:19always have to go a little further, not
1:09:24just in your duties, but dig, dig, dig.
1:09:27Not everything is in the law, not
1:09:29everything is in the jurisprudence.
1:09:34Advice, not for students, jurisprudence
1:09:36theses, that snippet that's there every
1:09:38Friday, which by the way is required
1:09:40reading for all lawyers, that little
1:09:42snippet is actually a synthesis of a
1:09:44ruling, of a precedent, but that is not
1:09:46what binds us. Article 97 of the
1:09:52Constitution tells us that what binds
1:09:54us are the reasons that justify a
1:09:55precedent's decision. In other words,
1:10:00what binds us are the rulings
1:10:02themselves, the reasons that justify
1:10:03the decision. Depending on the author
1:10:07you look up, you will find it as*ratio
1:10:09decidendi*, the*rationes decidendi*,
1:10:11the*obiter dicta*, but that is another
1:10:13issue for another subject. But let's
1:10:17always go to the root cause, let's go
1:10:18to the rulings of the Inter-American
1:10:20Court. If we stick only to legal
1:10:22theories or the letter of the law, we
1:10:24are lost as lawyers. We are already one
1:10:26step behind. And that leads me to the
1:10:29following situation. Just as I said
1:10:32regarding public prosecutors, and I
1:10:34will roast judges later on. Hm. We
1:10:38sometimes confuse terminology regarding
1:10:40precautionary measures. Why do I say
1:10:44this? When trying to prove roots
1:10:47established by residence, what is the
1:10:49only thing shown in hearings? Proof of
1:10:53address, an electricity bill. Guess
1:10:55what? That just proves that place
1:10:58exists. I can show an electricity bill
1:11:00I found at the university campus, but
1:11:02it doesn't mean I live there. Pay close
1:11:05attention to what the National Code
1:11:07says. The National Code says roots
1:11:10determined by residence. It does not
1:11:12say you must prove an address. Of
1:11:14course, the burden of proof lies with
1:11:16the Public Prosecutor's Office. The
1:11:19Prosecutor's Office must prove why
1:11:21there is a lack of roots, and here is
1:11:23the detail: it is not about justifying
1:11:25that you don't have an address, no, but
1:11:27what is the reason that will lead you
1:11:29to evade justice because of that
1:11:30particular aspect. Roots determined by
1:11:38residence, what does it imply? That
1:11:40there is something that binds you to
1:11:42that place. As defense attorneys, my
1:11:45advice is not to just stick with proof
1:11:47of address. In fact, a receipt for your
1:11:50children's school tuition carries more
1:11:52weight than proof of address. It is
1:11:55like a game of poker. You have your
1:11:58cards, your combinations, that carries
1:12:00more weight. You can have your
1:12:02electricity bill, that just proves it
1:12:03exists. The idea is that the
1:12:05Prosecutor's Office must prove, one,
1:12:07that those roots are absent—not just
1:12:09that there is no address, but that
1:12:10there are no roots. But the defense can
1:12:12say, look, there are indeed roots for
1:12:14several reasons. One, I have a lease
1:12:16agreement for that property for a
1:12:18certain period. Two, the house isn't
1:12:20mine, but several people have already
1:12:22testified that I've been living there
1:12:23for a long time, that I'm a known
1:12:25neighbor. Three, I have a job near that
1:12:28place. Four, that I am the owner of
1:12:31that place. What's more, it's better to
1:12:34show you have regular presence there
1:12:36than an electricity bill, I swear. And
1:12:38well, even more so with this reform
1:12:39that is apparently coming for property
1:12:41regularization. I don't know the full
1:12:43scope of the reform, it's not my
1:12:45specialty, but even that works better.
1:12:48Family photographs. And let's move on
1:12:50to the second point. What happens when
1:12:54we want to talk about the family seat?
1:12:58They come to the hearings and say,"
1:13:00Here is my birth certificate with my
1:13:02parents 'names and my son's birth
1:13:03certificate. "" Well, that just proves
1:13:06your son exists. "I can show my
1:13:09mother's birth certificate and be a
1:13:11totally deadbeat son. I can show the
1:13:13birth certificates of my four children
1:13:15and not have seen them since they were
1:13:17born. The National Code doesn't say
1:13:20prove kinship; it says prove or
1:13:22determine the risk of flight based on
1:13:24family ties. That's what it says, I'm
1:13:27not making it up. If you want to check
1:13:29it, now is the time. Speak now. Or
1:13:31forever hold your peace. Family ties.
1:13:35How are family ties proven? Explain the
1:13:39reasons why my family will be the ones
1:13:41to keep me from evading the reach of
1:13:43justice. A birth certificate doesn't
1:13:45work. A photo from a birthday party
1:13:47works better, just to mention an
1:13:49example. School tuition receipts, that
1:13:52you took them to the doctor, that
1:13:54you've been present even at soccer,
1:13:55extracurricular activities, karate, I
1:13:57don't know. That works a lot. That will
1:14:01definitively prove family ties. Always
1:14:06take the National Code into account and
1:14:08read it in detail. I repeat, so you
1:14:11don't say I'm claiming the burden of
1:14:13proof is on the defense, no. The Public
1:14:15Prosecutor's Office doesn't just have
1:14:17to prove that it's missing. The Public
1:14:19Prosecutor's Office has to go further
1:14:21and prove why that will be a reason.
1:14:25It's not enough to say," they don't
1:14:26have family. "Imagine someone who has
1:14:28no family, someone who is the black
1:14:30sheep of a family, preventive prison."
1:14:33No, he has no family, but that will, or
1:14:35rather, that is going to lead to flight
1:14:37from justice because since he has no
1:14:39family, he has traveled a lot, "which
1:14:41is also another point. Let's ask a
1:14:45question. How many of you have traveled
1:14:47?
1:14:48Yes, traveling nearby to Morelos counts
1:14:51too, eh? Yes, it counts. Yes, it really
1:14:54does count. I went to Morelos not long
1:14:59ago, so, 50. But what do we say? Let's
1:15:04look at it from the prosecution's side.
1:15:05There is a risk of flight because they
1:15:07have migration records. Uh-huh. And
1:15:10what does that mean? You are allowed to
1:15:12travel. Tell me the reason why that is
1:15:15going to impact my trial. And besides,
1:15:17this also happens a lot." Their last
1:15:20trip was in 2017. "On the other hand,
1:15:25the defense. Traveling is not bad,
1:15:28really. Traveling, asking a relative
1:15:31for proof for a license, is not bad.
1:15:34Maybe a bit crafty, but it is not a
1:15:36criminal offense. One thing does not
1:15:38follow from the other. Here we focus
1:15:42solely on criminal aspects, not on any
1:15:44other section. But now, let's talk
1:15:49about the judges. To what extent have
1:15:52we judges also made some mistakes?
1:15:58First, sometimes we judges compare the
1:16:03arguments regarding danger to the
1:16:04community. Danger to the community from
1:16:09a person who is being prosecuted solely
1:16:11for possession of a narcotic for
1:16:12trading purposes. I have handled cases
1:16:16in various jurisdictions. Of course,
1:16:18local or federal jurisdiction. Uh, in
1:16:24those types of cases—not all of them
1:16:25—I have had hearings where preventive
1:16:27detention is justified, for no other
1:16:29reason than that the act in question is
1:16:31that they were found buying or selling
1:16:33cigarettes, and the danger to the
1:16:35community is that it might affect
1:16:36public health; I mean, you are
1:16:38presuming them guilty. That is what you
1:16:43are trying to tell me. We cannot
1:16:45justify it like that. Many preventive
1:16:50detentions I have seen throughout my
1:16:51career, both as a collegiate secretary,
1:16:53as a judge there, and now as a judge in
1:16:55Mexico City, have led me to see that
1:16:57sometimes there is a search for a kind
1:16:59of imposition of preventive detention
1:17:06based on superfluous arguments. For
1:17:08example, I have heard that danger to
1:17:10the victim can be established by the
1:17:12criminal charge itself. That is a
1:17:14fallacy, that is a tautology. I cannot
1:17:17say that because of the criminal charge
1:17:19the person will automatically
1:17:20intimidate or threaten the victim. Not
1:17:25necessarily. Sometimes we judges, and I
1:17:28always say this with self-criticism,
1:17:31fall short in justifying the
1:17:32proportionality test. We skip
1:17:36suitability, we skip necessity, and we
1:17:38just say it is proportional based on
1:17:40whatever argument there might be. There
1:17:43were migratory flows. The person has
1:17:46traveled, the person has falsified
1:17:48their address. Of course, we judges
1:17:51cannot see the file; that is something
1:17:53we are prohibited from doing. Judges
1:17:56only decide based on what we hear in
1:17:58the hearing, but sometimes we forget
1:18:00that the only ones obligated to ground
1:18:02their requests—or rather, to provide
1:18:04legal grounds—are us. You, as defense
1:18:08attorneys, you as litigating lawyers,
1:18:11of course, have an obligation to
1:18:13justify what you request, but you do
1:18:14not have the obligation to cite a
1:18:16specific article for me. And I have
1:18:18seen hearings where they are told," If
1:18:19you don't cite the article, the request
1:18:21is denied. "Let's avoid formalities.
1:18:23Sometimes we judges prioritize
1:18:25formalities over the substance. When I
1:18:27say substance, I don't mean looking
1:18:28into everything, because I have also
1:18:30seen some reviews of precautionary
1:18:31measures where they simply come with
1:18:33the same arguments, just looking for
1:18:35which judge is on duty to see if they
1:18:36can change the outcome. Please, do not
1:18:38do that. If we are aware that a case is
1:18:42reassigned or that there was a hearing
1:18:44last week, we should always try to
1:18:46prioritize the proportionality test. It
1:18:49will be our baseline and our guide. And
1:18:53we must not forget that pretrial
1:18:54detention remains exceptional in nature
1:18:56. Sometimes, another situation we
1:19:00overlook as judges is the famous
1:19:01two-year deadline. Some judges do it on
1:19:05their own initiative. Their cases reach
1:19:08the two-year mark, and they hold the
1:19:10hearing. It is not possible in every
1:19:13case. Perhaps we should implement some
1:19:16way for judges to do it ex officio. It
1:19:19is very complicated because we judges
1:19:21have quite a few cases, over 400 per
1:19:23judge. So it is difficult, because
1:19:28lawyers who have been in hearings or
1:19:29public prosecutors should know that
1:19:31when they leave a two-hour hearing,
1:19:33they are exhausted; and we judges, who
1:19:35have to perform three functions at the
1:19:37same time—listening, searching, and
1:19:39structuring—we end up very drained
1:19:41from those types of resolutions. Of
1:19:47course, that will never be a
1:19:48justification for the workload, but
1:19:50handling 10 hearings a day with that
1:19:52degree of complexity really takes a
1:19:56heavy toll on you. Measures will have
1:19:58to be implemented; it is not a
1:20:00justification in any way, because the
1:20:01people inside are looking to get out to
1:20:03be with their families, to work. It
1:20:06will be complicated because they will
1:20:07always be discriminated against; it
1:20:09will always be very complicated.
1:20:13Finally, before moving on to the
1:20:14conclusions, in addition to
1:20:15recommending a book, I would like to
1:20:17talk about this difference or these
1:20:23certain situations I have noticed
1:20:25regarding what we offer in hearings as
1:20:27lawyers: data or evidence for
1:20:29precautionary measures. You know that
1:20:32when an extension is requested in a
1:20:34case or a decision is requested within
1:20:3672 or 144 hours, the National Code
1:20:38allows you to offer data or evidence,
1:20:40depending on the type of measure. If
1:20:42the measure is personal in nature, you
1:20:44may offer evidence. If you allow me a
1:20:48piece of advice, before moving to the
1:20:50conclusions of today's talk, if you
1:20:51allow me a practical tip, I would
1:20:53suggest that we stick to data, provided
1:20:55that we explain it ourselves. And why
1:20:58data instead of evidence? Because
1:21:02sometimes we trust the wrong people,
1:21:04sometimes we trust experts who go to
1:21:06the hearing and cannot even say the
1:21:07client's name correctly, or sometimes
1:21:09we trust a witness who forgets
1:21:11everything at that moment, and that is
1:21:13our evidence. Why not conduct a
1:21:17well-planned interview, a well-planned
1:21:19technical opinion, well-structured,
1:21:21well-reviewed, and offer it as data? At
1:21:24the end of the day, the assessment is
1:21:25the same; it remains a rational
1:21:27assessment. It is still a rational
1:21:30assessment, sound judgment, rules of
1:21:32logic, scientific knowledge, and maxims
1:21:34of experience—it remains the same,
1:21:36only now you will be responsible for
1:21:38the information you provide. You are no
1:21:43longer going to leave it up to the
1:21:44witness who is going to make a mistake,
1:21:46and you just hear that slap on the
1:21:48lawyer's forehead like," No, it can't
1:21:49be, right? "Or haven't you seen that
1:21:52meme where they ask if the lawyer told
1:21:54them what they had to say and they
1:21:55didn't? No, let's keep everything in
1:21:59our own hands as lawyers. As lawyers,
1:22:03it is easier to synthesize the
1:22:04information and explain it. And let's
1:22:07remember that judges do not read the
1:22:09case file. That is to say, whoever does
1:22:14not say something in the hearing is
1:22:16responsible for that omission. Do not
1:22:21assume that the judge will read your
1:22:22case file before your hearing to see
1:22:24what has happened before, because that
1:22:25does not happen. Do not assume that,
1:22:29because if you leave everything in the
1:22:31judge's hands, you may end up with a
1:22:33decision that is not to your liking. Be
1:22:36careful with that. Data or evidence. In
1:22:38my opinion, and obviously it depends on
1:22:40the judge, this is my opinion, this is
1:22:42my criterion. I would advise using data
1:22:44rather than evidence. In any case, for
1:22:46there to be evidence, there must be the
1:22:48data; for there to be evidence, the
1:22:50record must be in the file. And why do
1:22:53you have to justify the potential
1:22:55contradiction stated by the witness or
1:22:56the expert when you give your arguments
1:22:58for the debate on the measure? Let's
1:23:01focus on that and let the debate arise
1:23:03only on those four points. Decide on
1:23:07your strategy, look for where you see
1:23:08the greatest feasibility, either for
1:23:10imposition or non-imposition. You will
1:23:14usually find it in necessity and
1:23:16proportionality. You won't find it as
1:23:21much in suitability because all
1:23:22measures at some point meet the
1:23:24legitimate purpose, which, I reiterate,
1:23:26is to avoid obstruction of the
1:23:27proceedings and also the risk of
1:23:29evading justice. Finally, as I
1:23:34mentioned, this talk is about putting
1:23:35ourselves in the other person's shoes.
1:23:41It is about when we listen to ourselves
1:23:43and look in the mirror—let's see, I
1:23:44am the Public Prosecutor and at the
1:23:46hearing I am going to say that the
1:23:47person falsified their address because
1:23:49they gave a different one on their
1:23:51driver's license. I will be the judge.
1:23:58Will I buy that? Would I buy it myself?
1:24:01If not even you buy it, it is not a
1:24:03good argument. Put yourselves to the
1:24:05test. Always engage in self-criticism.
1:24:09If you as lawyers say," I want to prove
1:24:11family residency, I'll bring the
1:24:13children's proof of address, "will that
1:24:15prove he lives with them?" Not
1:24:17necessarily. "Always put yourselves in
1:24:19the other person's shoes. Something a
1:24:22supervisor advised me when I was a
1:24:23collegiate court clerk is to play
1:24:25devil's advocate. A final piece of
1:24:27advice. You as lawyers, think about
1:24:29what the Public Prosecutor might argue.
1:24:31What are the consequences of what you
1:24:33say, what are your weak points? Instead
1:24:36of planning a strategy and saying," I'm
1:24:37going to attack these points, "think
1:24:39about what the weak points of your
1:24:40points are, where they can hit you, and
1:24:42save that argument for your second
1:24:44intervention. Public Prosecutors, you
1:24:47already know what points you have.
1:24:50Don't just seek to argue those. Seek to
1:24:54strengthen your weaknesses in your
1:24:56argumentation because that way your
1:24:57resolutions, or rather your requests,
1:24:59will be better founded. I only ask you
1:25:03that we truly be as aware as possible
1:25:11that in your hands, lawyers, in your
1:25:13hands, public prosecutors, and in your
1:25:15hands, students, in the future you will
1:25:17have people, people who expect justice
1:25:19and who will trust in your abilities.
1:25:25And if you are public prosecutors, you
1:25:26see that the Court said that
1:25:28exceptionally you can represent the
1:25:29victim, that's why they don't analyze
1:25:31the parameters like that. I don't share
1:25:33that criterion, but Public Prosecutors,
1:25:35you have already been told that you
1:25:37will also take charge of the victims.
1:25:39Be careful with a person who has been
1:25:41waiting 15 years for justice for a
1:25:43kidnapping and the loss of life of a
1:25:45family member, and committing a
1:25:46resolution, or causing an arbitrary
1:25:48resolution or one of impunity; because
1:25:50we are all responsible for what is
1:25:52happening, everyone. What is happening
1:25:55politically in the country, what is
1:25:56happening in the justice system...we
1:25:58cannot say:" Not me, I did it well. "We
1:26:01have all done something to lead us to
1:26:03the situation we are in, and now we
1:26:05have no choice but to move forward. I
1:26:07have nothing left but to thank the
1:26:09National Institute of Criminal Sciences
1:26:11for the invitation. I am very happy to
1:26:14be with you today. I love talking about
1:26:18these topics. I am passionate about
1:26:20criminal procedural law. I am
1:26:21passionate about being in hearings. All
1:26:23of you, I always say this at
1:26:25conferences, are invited to watch my
1:26:27hearings. Federal Criminal Justice
1:26:29Center at the South Prison. Monday to
1:26:32Friday, I start at 9:15. I'm not one of
1:26:34those who eats breakfast and then
1:26:36starts hearings, right? We start at
1:26:379:15, except Thursdays because I share
1:26:39a courtroom with another judge. In
1:26:41those cases, yes, unfortunately I start
1:26:43in the afternoons at 3, not because I
1:26:45want to. All guests just need to say
1:26:47they are going to a hearing of mine.
1:26:49Take advantage, these are the last
1:26:50hearings, we have finished the month
1:26:52and a half. I will be handing over the
1:26:54position soon. What can I tell you? It
1:26:55is not something that is up to me. We
1:26:57tried, as the song would say. We tried.
1:27:01No, we won't be here in September, but
1:27:03I leave very happy knowing that we are
1:27:05aware of the responsibility it implies
1:27:07and; I hope that the people starting in
1:27:08September have that social conscience
1:27:10that implies that a person is in their
1:27:16hands: they entrust their future into
1:27:18the hands of those people. You were
1:27:22given a brochure, my social media
1:27:23handles are there, I have a video
1:27:25channel, don't think I dance, don't
1:27:27think I tell jokes, it is strictly
1:27:29legal content. In fact, I invited you
1:27:32to the INCIPE course for that reason.
1:27:34You can find me as@césarnándesc and
1:27:37on X, formerly Twitter, you can find me
1:27:39as @derechosinrollo. I do a lot of
1:27:41social criticism there. I hope you have
1:27:43the opportunity to see the leaflet that
1:27:45was shared with you. And I have nothing
1:27:46left to do but close with what I had
1:27:48mentioned a few moments ago. Whenever
1:27:50we resolve or propose something, we
1:27:51must put ourselves in someone else's
1:27:53shoes. Thank you very much.
1:28:09Thank you very much for having given
1:28:10this excellent lecture. Now then, we
1:28:13will go to a very brief session of
1:28:14questions, as my colleagues in the back
1:28:16will help us with the microphone. If we
1:28:20start on this side, does anyone have a
1:28:21question?
1:28:30In a moment it will be brought to you
1:28:34uh help me please. Good afternoon,
1:28:45Counselor. Very good afternoon,
1:28:47audience. I have a question, it is
1:28:51always prudent to put ourselves in the
1:28:52other's place, but in this case, what
1:28:54do you recommend, Counselor? To put
1:28:58ourselves in their place, let's talk
1:29:00about public servants, police officers.
1:29:06What a good question, because sometimes
1:29:08we don't understand the police,
1:29:09sometimes we believe that—and yes
1:29:11there are, of course, there are police
1:29:13who torture, torture has not ended,
1:29:15there are police who commit illegal
1:29:17detentions. It happens sometimes that
1:29:22the police act according to another
1:29:23regulatory framework, they even
1:29:25consider that those famous theses on
1:29:27levels of contact or provisional
1:29:28preventive controls do not apply to
1:29:30them. I heard a police officer on
1:29:32TikTok say that. I think we should just
1:29:36be empathetic regarding the issue of
1:29:38the crime prevention function and not
1:29:40forget that they are not only governed
1:29:41by the levels of contact or the
1:29:43provisional preventive controls, but
1:29:44they are also governed by another act,
1:29:46which is the legitimate use of force.
1:29:50The legitimate use of force is a series
1:29:52of tools that has not been sufficiently
1:29:54explored. As for putting ourselves in
1:29:59their shoes, I would only do so
1:30:00regarding emergency situations, because
1:30:02it is often claimed that contact levels
1:30:04were not met when a person was seen
1:30:06shooting someone else. I don’t
1:30:10imagine the police officer walking up
1:30:12and saying," Hello, good afternoon. "
1:30:14You don't have to make an arrest based
1:30:15on simple immediate presence. Contact
1:30:18levels are for cases where the
1:30:19so-called flagrancy is not as evident.
1:30:24I would only advise that we should
1:30:25elaborate or delve into their
1:30:32operational protocols to see how
1:30:33compatible they are with human rights,
1:30:35because sometimes the view of police
1:30:37work focuses excessively on prevention
1:30:39and prosecution and that can affect
1:30:45people's rights, but we have to see to
1:30:46what extent. There are arrests that are
1:30:50clearly illegal, but there are others
1:30:52where people tend to be very rigid,
1:30:54saying" freedom "over the smallest
1:30:55detail. I think we must always find a
1:30:58fair middle ground, and of course, for
1:31:00any police officer who abuses their
1:31:02power, fails to follow protocols,
1:31:04ignores legal precedents, or fails to
1:31:05follow the national detention registry,
1:31:07then yes, start the corresponding
1:31:09investigations. Police work is
1:31:11complicated. I know firsthand what it's
1:31:14like to work as a police officer and I
1:31:16do know that salaries are very low,
1:31:21shifts are exhausting, and they lack
1:31:23training in human rights. The ones who
1:31:26train the police are other police
1:31:28officers. It’s difficult for that
1:31:31training to come from a lawyer, but we
1:31:32have a lot of work to do. Thank you.
1:31:47May I?
1:31:48Good afternoon. Uh, thank you very much
1:31:51for the talk. My question is as follows
1:31:53. Have you had any complaints before
1:31:56the Council of the Judiciary for not
1:31:58complying with the reform of December
1:32:0031, 2024? Because it is very brave on
1:32:03your part, truly. Congratulations,
1:32:06because we need more people like that,
1:32:08because it really was something
1:32:10aberrant for our legal practice.
1:32:12Fortunately, so far, I haven't heard of
1:32:15any. Let’s hope not. Let’s hope not
1:32:18. No, I haven't had to disapply it many
1:32:20times either because I haven't received
1:32:21that many cases. Usually, the public
1:32:23prosecutors at the South Prison already
1:32:25ask for justified detention without
1:32:27requesting mandatory preventive prison.
1:32:30And that pleases me a lot because it
1:32:31means they are acting under a duty of
1:32:33objectivity and loyalty. Because it
1:32:37often happens that they say" mandatory
1:32:38preventive prison "in the hearing, as
1:32:40stated in the December 31 reform, and
1:32:42as soon as you turn it around and tell
1:32:44them you aren't applying it, it seems
1:32:46like their modem gets reset. Now, what
1:32:49is my argument? Because that was my
1:32:51winning argument. So, a piece of advice
1:32:53for Public Ministry agents: you might
1:32:55still encounter someone like the person
1:32:57sitting here telling you," They are not
1:32:58going to mandatory pretrial detention.
1:33:00"And you must prepare your arguments if
1:33:02you really want to justify a pretrial
1:33:04detention now. I haven't had any
1:33:06proceedings up to this moment. What I
1:33:08do try to justify as much as possible
1:33:10is why the parameter of constitutional
1:33:12regularity is not imposed, the
1:33:14impossibility of exercising
1:33:15conventionality control over
1:33:17jurisprudence. Article one. There is a
1:33:21book I love by Yaniv Roznai,"
1:33:22Unconstitutional Constitutional
1:33:24Amendments, "where he speaks about the
1:33:26possibility that the Constitution
1:33:27itself could be unconstitutional. Why?
1:33:30Because it betrays the basic principles
1:33:32of the Constitution itself. It is a
1:33:33text I would love to recommend, but I
1:33:35hope it never comes to that; however,
1:33:37we are a month and a half away, so
1:33:38let's see what happens in that month
1:33:40and a half.
1:33:41Thank you very much.
1:33:47Oh, sorry, sorry. Good afternoon. First
1:33:51of all, thank you very much for your
1:33:52very illustrative presentation, Your
1:33:54Honor. I would like to mention that I
1:33:58was the last Attorney General, the
1:33:59first Prosecutor General of Justice in
1:34:01the state of Sonora, and I am currently
1:34:03a doctoral student here at the National
1:34:05Institute of Penal Sciences. I have the
1:34:11privilege of having Dr. Sergio Suárez
1:34:13Taas on my doctoral committee, and the
1:34:15title of my thesis is precisely the
1:34:17partial suppression of justified
1:34:18pretrial detention based on the
1:34:20principle of penal proportionality.
1:34:29When you began your presentation, you
1:34:30asked if we thought it was fair that a
1:34:32person who had two residences or some
1:34:34similar situation should be deprived of
1:34:36their liberty due to justified pretrial
1:34:38detention, and that we should put
1:34:39ourselves in their shoes. Precisely the
1:34:48spirit, or what I am interested in
1:34:50having as the substance of that
1:34:51research work, is because you even
1:34:53mentioned all the consequences
1:34:55generated by a single day of being
1:34:56deprived of liberty in terms of
1:34:58stigmatization and many other
1:34:59situations. A person who might be
1:35:06decent is precisely where they turn
1:35:07into a criminal. So my proposal, and
1:35:16what I would like to ask for is your
1:35:18opinion, is: just as there is a catalog
1:35:20of crimes that merit mandatory pretrial
1:35:22detention, we should also have a series
1:35:24of guidelines that establish—even if
1:35:26they are not by specific crime—a
1:35:28series of parameters or guidelines that
1:35:30establish for certain crimes that
1:35:32justified pretrial detention cannot be
1:35:34imposed. For example, I don't know here
1:35:42in Mexico City, but in Sonora, the
1:35:44crime of slander exists. I don’t
1:35:52believe that if we perform a
1:35:53comparative analysis or a
1:35:55proportionality exercise regarding the
1:35:57protected legal interest of slander
1:35:59versus the consequences a person may
1:36:00suffer from having to endure 2 or 3
1:36:02years of pretrial detention because
1:36:04they cannot prove social ties, etc. It
1:36:06seems disproportionate to me. That is
1:36:13why I mentioned that the title of the
1:36:15thesis is based on the principle of
1:36:17criminal proportionality established in
1:36:19the Constitution. In such a way that it
1:36:22seems to me there are protected legal
1:36:24interests that are not proportional to
1:36:26the imposition of justified pretrial
1:36:28detention. We even have cases in Sonora
1:36:33, such as animal abuse or cruelty,
1:36:34where someone kicked a dog. Well, it
1:36:44turns out that this person, if they
1:36:45cannot prove social ties—as you
1:36:47mentioned a moment ago, whether family,
1:36:49residential, or professional—or if
1:36:51the judge or the Public Prosecutor’s
1:36:53Office manages to justify that they
1:36:54might pose a risk to the community,
1:36:56that person has to undergo the process
1:36:58deprived of their liberty, even though
1:37:00the protected legal interest in the
1:37:02crime was that they harmed or injured a
1:37:04sentient being, as they are called,
1:37:05which is an animal. But it does not
1:37:16seem proportional to me compared to all
1:37:17the consequences that person, a human
1:37:19being, will face when being deprived of
1:37:21their liberty for at least 6 months,
1:37:23with the stigmatization and all the
1:37:24suffering they endure from being
1:37:26deprived of their liberty. So, my
1:37:35question, or rather my request, is if
1:37:36you could give me your opinion on the
1:37:38proposal that, just as there is a
1:37:40catalog for mandatory pretrial
1:37:42detention, there could also be
1:37:43constitutional guidelines so that
1:37:45certain crimes—possibly even
1:37:47including negligent ones—could be
1:37:49included there, such that the control
1:37:51judge cannot impose justified pretrial
1:37:53detention. That doesn’t mean they
1:37:59couldn't eventually be convicted and
1:38:00have to serve a sentence, but that
1:38:02during the process, they wouldn't have
1:38:03to be deprived of their liberty. That
1:38:06would be it. Thank you.
1:38:07Of course. Here I believe there are
1:38:09three principles that could be at risk
1:38:11with that proposal. I’m going to play
1:38:13the role of your examiner, right? Three
1:38:16principles. Mandatory pretrial
1:38:19detention itself, according to the
1:38:21Inter-American Court, violates judicial
1:38:23independence. Why? Because it prevents
1:38:27the discretion to objectively evaluate
1:38:29risks. It is imposed without evaluating
1:38:33whether they are dangerous or not, or
1:38:35if they could obstruct the
1:38:36investigation or not. Setting an
1:38:38inverse catalog of crimes for which it
1:38:40is not allowed also limits judicial
1:38:42discretion. Why? Because there will be
1:38:44some cases where certain threats can
1:38:46lead to death. I saw a case involving a
1:38:48threat that the person would end up in
1:38:49a body bag. I know threats and slander
1:38:51are not the same, but threats, at least
1:38:53in the Federal Penal Code, allow for
1:38:55reparatory agreements or conditional
1:38:57suspension. So this catalog could—I
1:38:59am not asserting it, it could, it is a
1:39:01very interesting debate—it could
1:39:03jeopardize judicial discretion. One,
1:39:06two, the principle of equality. The
1:39:08Inter-American Court has said that
1:39:10making an exhaustive list without
1:39:12discriminating, why does the principle
1:39:13of equality come into play? Because all
1:39:15defendants must be treated equally. And
1:39:18if all defendants are not treated
1:39:19equally, then we would be talking about
1:39:21a preferential provision for certain
1:39:23types of crimes. They place you in a
1:39:26position of privilege, and while the
1:39:28intention or purpose would be to avoid
1:39:30prison overcrowding, it could clash
1:39:31with the principle of equality. And
1:39:34finally, the principle of
1:39:35proportionality, because we view
1:39:37proportionality in terms of the type of
1:39:39crime, but that is not the case.
1:39:41Proportionality is a function of the
1:39:43risk created by the precautionary
1:39:45measure. Proportionality is how high
1:39:48the procedural risk is that we must
1:39:50neutralize with a precautionary measure
1:39:52. This is very interesting, but perhaps
1:39:55to strengthen your research, I would
1:39:57advise you to look at possible
1:39:58objections regarding those three points
1:40:00. Ah, just to mention a suggestion.
1:40:03Thank you. Lastly, we have a question
1:40:07from the audience watching us online,
1:40:09which is the following. Why is a cash
1:40:12deposit or bail no longer set as a
1:40:14precautionary measure to guarantee
1:40:16procedural obligations? An economic
1:40:19measure that does not affect the
1:40:21presumption of innocence, since
1:40:23previously, reparation for damages was
1:40:25also guaranteed with a bail bond.
1:40:28In reality, the economic guarantee does
1:40:30not mean it must be a cash deposit. It
1:40:32is bad practice by some judges who say,
1:40:34" If it is not a cash deposit, I will
1:40:36not accept an economic guarantee. "In
1:40:38reality, it can be any type of economic
1:40:40guarantee: a pledge, bond, mortgage,
1:40:42anything. What was happening? What is
1:40:44the difference between provisional
1:40:46release on bail and an economic
1:40:47guarantee? The First Chamber of the
1:40:51Supreme Court has already told us that
1:40:53the differences imply that when we
1:40:55spoke of provisional release on bail,
1:40:57which belongs to the traditional system
1:40:59, this freedom that existed once the
1:41:00preliminary statement was given, that
1:41:06it was indeed interchangeable for
1:41:07freedom, because until you paid, you
1:41:09didn't get out. And the economic
1:41:11guarantee does not work that way. The
1:41:14economic guarantee, according to the
1:41:16court, is not interchangeable for your
1:41:17freedom; it does not mean you will get
1:41:19out only when you provide the guarantee
1:41:21. The Court has already stated very
1:41:24clearly that the economic guarantee has
1:41:26nothing to do with reparations for
1:41:28damages and is not a measure that
1:41:29implies a new provisional release on
1:41:31bail; because provisional release on
1:41:33bail, well, legitimized preventive
1:41:35detention which, even though it didn't
1:41:37say it was mandatory in the traditional
1:41:39system, it continues to be mandatory. I
1:41:42am of the opinion that any type of
1:41:43economic guarantee is valid. The
1:41:47justice center staff is obligated to
1:41:49exchange that cash guarantee for a
1:41:50deposit slip, and if a surety bond is
1:41:52presented, there shouldn't be any
1:41:54imposition. Finally, just to conclude,
1:41:59I want to thank the people who
1:42:01connected virtually; the fact that you
1:42:03are watching these types of events
1:42:04moves me quite a lot. And to finish, if
1:42:09you perhaps want to delve deeper into
1:42:11these topics of precautionary measures,
1:42:13Cortemo Vázquez's book on
1:42:14precautionary measures is also a book
1:42:16published by Cipe in conjunction with
1:42:17Ubillus publishing, which is also a
1:42:19quite interesting book on the subject
1:42:21that includes a catalog of all of them
1:42:23broken down with jurisprudence. On
1:42:27behalf of Incite, we would like to
1:42:29present an acknowledgment, as well as
1:42:31gift some books, for which I ask Dr.
1:42:33Sor Dear doctor, thank you very much
1:42:42for these uh reflections. The comments
1:42:46that were issued have enriched us
1:42:47greatly, and well, we will present a
1:42:49small acknowledgment.
1:42:55Oh, it's very nice,
1:42:57how beautiful.
1:42:58A round of applause, please. Thank you,
1:43:11very kind. Thank you, doctor. We will
1:43:16also present some books.
1:43:18Thank you very much. I hope they are.
1:43:20Yes, of course. No,
1:43:21your pleasure. Thank you. Thank you
1:43:23very much.
1:43:24Thank you very much.
1:43:26Thank you very much. Thank you very
1:43:33much for having been with us this
1:43:34afternoon. I remind you that tomorrow
1:43:36is the last session and that the sales
1:43:38point is outside. Thank you very much
1:43:40and have an excellent night.

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