The First room of the Supreme Court of Justice of the Nation (SCJN) resolved that the jurisdictional bodies can decide whether to prolong or cease preventive detention against a person subject to a criminal proceeding when the two-year constitutional term for sentencing has been exceeded.
This resolution of the First Chamber of the Court was to resolve the protection in review 315/2021, of a case of express kidnapping in which the accused seeks the change of the precautionary measure of informal preventive detention for a precautionary measure that allows him to carry out his process in freedom, due to the fact that the constitutional term of two years in prison has elapsed preventative as stated in the Constitution. The First Chamber granted amparo to the accused so that the judge of the case determines whether or not he lifts the preventive detention against him based on the elements he has.
Article 20, section B, section IX, second paragraph, of the Federal Constitution establishes that preventive detention may not exceed the time that the law sets as the maximum penalty for the crime that motivated the process and in no case shall it exceed two years. , unless its extension is due to the exercise of the right of defense of the accused. If after this term no sentence has been pronounced, the accused will be released immediately while the process continues, without this preventing the imposition of other precautionary measures.
In this context, the First Chamber of the Supreme Court considered that preventive detention under international regulations should be imposed as an exceptional measure.
In this sense, it observed that neither the legislator of the Constitution nor the ordinary legislator favored any distinction of that figure in terms of the possibility of its revision, cessation or extensionin such a way that preventive detention, in any form, is deeply restrictive of the right to personal liberty of those accused in the accusatory criminal process and, therefore, must be reviewable.
The highest court ruled that, contrary to what was held by the amparo court, once the 2-year limit had been reached and the petition had been formulated before the control judge, as happened in the case, it should be reviewed to determine whether it ceases or is prolonged. your application.
It also specified that if, as a result of the aforementioned review, it is estimated that the duration of the informal preventive detention should be extended, the decision of the jurisdictional authority must be subject to high scrutiny for justification, which will prevent this precautionary measure from being unnecessarily extended.
Regarding this specific case, the Stop Kidnapping organization considered that this decision “involves a great risk for the victims and for society in general, since the judge will not be obliged to take into consideration the risk of committing new crimes by the person. subject to process, the previous illicit behaviors in which he has participated, the preservation of public order or the risk to society, to the victim or witnesses of the crime. In other words, by letting him go free he could evade justice and continue committing criminal conduct.”