Access to a lawyer in the first hours of detention in Mexico: Bridging the gap between law and practice

Friday, December 14, 2018

Access to a lawyer in the first hours of detention is one of the most effective ways to re-balance power inequality and reduce the risks of abuses and violence. Although Mexican law guarantees prompt access to a lawyer, a gap remains between the law and day-to-day practice. The APT is carrying out a project in the country with the objective both to gather information on the challenges that hamper the effective implementation of this key detention safeguard, and to identify concrete and practical steps to reduce this gap.

To this end, the APT is working with various partners in Mexico, including the National Preventive Mechanism (NPM) within the National Human Rights Commission (NHRC), the National Association of Public Defender’s Offices at the states’ level, as well as civil society organisations.

In August, we started mapping and interviewing key stakeholders, with a view to analyse the implementation of the right of access to a lawyer in the first hours of custody in the country. More recently, on 7-8 November, we organised a national expert meeting jointly with the NHRC/NPM to identify practical challenges and possible ways forward. The meeting gathered a wide range of participants from several Mexican states, from public defenders, prosecutors, representatives of NHRC/NPM and civil society organisations, to judges, law enforcement officials, policy makers and state-level human rights commissions.

During the meeting, participants identified several key reasons that could be driving the gap between the law and practice with regard to ensuring that all persons have prompt and effective access to a lawyer. For instance, in providing that all arrested persons should be immediately transferred to the public prosecutor’s office, the law features some grey areas that, in practice, result in significant delays in the transfer. Practical reasons also include the lack of effective cooperation between the relevant authorities; the lack of adequate resources for public defenders’ offices; and the lack of understanding of the lawyers’ preventive role during the immediate and early stages of custody.

In the coming months, the APT will finalise the analysis and continue to work with public defenders and the NHRC/NPM to promote the effective implementation of the right to access to a lawyer in Mexico.