CAT/C/75
page 38
serious crimes as defined by law where there is a serious risk that the suspect may evade justice,
whenever time, place or circumstance makes it impossible to apply to the judicial authorities: in
this event the Public Prosecutor’s office is empowered to order the detention of the suspect on its
own authority, stating what evidence prompted it to do so.
177. Most national legislation allows for detention without a previous court order in cases of
flagrante delicto. However, Mexican legislation defines flagrante delicto as having a scope that
exceeds its natural and obvious meaning. Article 193 of the Federal Code of Criminal Procedure
covers five possible cases of flagrante delicto. The first two correspond to what is found in most
bodies of legislation and are in keeping with the doctrinal definition of the circumstance: when
the accused is surprised in the act of committing an offence or is pursued and caught
immediately after having done so, and thereupon detained.
178. The other three possible cases of flagrante delicto allow the accused to be apprehended if
identified as the culprit by the victim, another witness at the scene or a fellow perpetrator; if the
object, instrument or proceeds of a crime are found in his possession; or if clues or evidence are
found that give reason to suppose that he was involved in the illegal occurrence under
investigation. These latter cases are contingent on the offence’s being legally categorized as a
serious one, on the Public Prosecutor’s Office’s having already launched the appropriate
preliminary investigation, on the offence’s having been followed up without interruption and on
no more than 48 hours having elapsed since the offence was committed. These are less stringent
requirements than those the Public Prosecutor’s Office must meet in order to obtain an arrest
warrant from the courts.39 This is especially apparent when evidence of involvement comes to
light 48 hours after the offence was committed (72 hours in the Federal District, where the Code
of Criminal Procedure allows this long for arrests based on clues or testimony). If the grounds
advanced for detention consist in suspected involvement in organized crime the deadlines are
doubled even if, ultimately, the accused is charged upon indictment with a common offence.
179. As regards the authorization of the Public Prosecutor’s Office to waive the court order in
pressing cases, the Committee members were told that the requirement that time, place or
circumstance should make it impossible to apply to the judicial authorities is easily met by
recording the detention as having taken place after the courts have stopped work.
C. Time limits on detention at police and Public Prosecutor’s Office premises
180. When an individual is detained under a court order, the authority executing the order
must place the individual at the disposal of the judge who issued the order “forthwith”, as
article 16, third paragraph, of the Constitution requires. However, in the cases of flagrante
delicto and pressing cases referred to above, in which a court order is not required, the Public
Prosecutor’s Office is empowered to detain the suspect in its own or police custody for up
to 48 hours.
181. Given the scope of these two exceptions, as described above, the way they are applied is
virtually as important as the general rule, if not more so. According to the Office of the
Attorney-General of the Republic,40 a total of 30,751 individuals were brought before the courts
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents