Difference between revisions of "Mexico"

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The sources of criminal legislation expressed in the Código Penal Federal (Federal Criminal Code [CPF]) Código Federal de ProcedimientosPenales(Federal Code of Criminal Procedure [CFPP]); these set the standard for the state-level criminal codes and codes of criminal procedure, though there is significant variation from state-to-state <ref>Ibidpage 214</ref>.  
 
The sources of criminal legislation expressed in the Código Penal Federal (Federal Criminal Code [CPF]) Código Federal de ProcedimientosPenales(Federal Code of Criminal Procedure [CFPP]); these set the standard for the state-level criminal codes and codes of criminal procedure, though there is significant variation from state-to-state <ref>Ibidpage 214</ref>.  
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==Source of defendants’ rights==
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The Constitución Política de los EstadosUnidos Mexicanos (the Constitution) is the primary source of defendant’s rights. Defendant’s rights in criminal proceedings are found in Capítulo 1, de los DerechosHumanos y susGarantías(Chapter 1, Human Rights and Guarantees), primarily in artículos13 to 24 <ref>http://www.diputados.gob.mx/LeyesBiblio/htm/1.htm</ref>. Artículo 29 also protects these fundamental rights by stating that the decrees issued in the Constitution are not to be used to restrict or suspend the rights to no discrimination, recognition of legal personality, life, personal integrity, protection of the family, name and nationality; rights of the child; political rights; freedom of though, conscience, and religion; principles of legality and retroactivity of laws; the prohibition of the death penalty, the prohibition of slavery and servitude; and the prohibition of forced disappearance and torture.
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Mexico also acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1981, of which Article 14 is most important when considering the rights of those accused of a crime. This includes a number of due process rights, equality before the courts and tribunals, and the right to be presumed innocent until proven guilty. However, given the hierarchy of the Mexican legal tradition, international treaties and agreements are trumped by the Constitution <ref>http://www.nyulawglobal.org/globalex/mexico1.htm</ref> .
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The 2008 reforms include some of ICCPR provisions, such as a specific ban on the use of torture, the presumption of innocence, protections to reinforce due process, and the requirement that all defendants have professional legal representation <ref>Supra note 5 pages223 and 228</ref>.
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Defendant rights are also expressed in the CFPP, which outlines the process of criminal procedures.
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Artículo: 13 (no trial using underinclusive laws or special courts), 14 (laws not applied retroactively), 16 (warrants and indictments), 17 (fair trial), 18 (prisons, preventive custody), 19 (72-hours for suspects in judicial custody), 20 (privileges and immunities of defendants), 21 (authorities to punish criminal offences), 22 (against torture and unusual punishments), 23 (no one put on trial twice for the same crime, no criminal trial to have more than 3 instances), 24 (no crime related to the practice of religion as long as it is lawful).
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==Police Procedures==
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=Complaint/Information=
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Complaints are received by the public prosecutor<ref>Código Federal de Procedimientos Penales,Article 2(I).</ref>.
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=Arrest=
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The executing authority of an arrest shall put the indicted individual under a judge’s jurisdiction without delay. This authority is accountable for any wrongdoing that occurs during the arrest. The violation of these rules is considered a criminal offense. In the case of blatant criminal offense, any person shall have the power to arrest the perpetrator and then hand him/her to the closest authority, who shall in turn hand the perpetrator over to the closest public prosecutor<ref>Constitución Política de los Estados Unidos Mexicanos, Article 16</ref>.
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=Pre-Trial Detention=
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Once suspects are detained, their case is to be registered with the Public Ministry immediately<ref>Código Federal de Procedimientos Penales, Article 2(IV)</ref>. No more than 48 hours after the arrest has taken place, the defendant will be notified in a public hearing about the nature of the accusation<ref>Código Federal de Procedimientos Penales, 20A(II)</ref>.  The Constitution states that the accused shall be tried within 4 month if charged with an offense whose maximum penalty does not exceed 2 years imprisonment and within a year if the maximum penalty is greater<ref>Constitución Política de los Estados Unidos Mexicanos, Article 20A (VIII</ref>.
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=Searches=
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To obtain a search warrant, the existence of evidence or information that leads to the reasonable assumption that the accused was present during the crime will suffice<ref>Código Federal de Procedimientos Penales,Article 63</ref>.
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=Interrogation=
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Article 20(a)(ii) of the Constitution states that no one shall be compelled to make a statement. Any use of intimidation, torture or solitary confinement shall be forbidden and punished under criminal law. Suspects’ confessions will be valid only when made before a public prosecutor or judge. In both cases the suspect’s lawyer shall be present. A confession made to any other authority shall not be used as evidence in a court of law.
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==Rights of the Accused: Criminal Law System==
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''Double Jeopardy''
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The Mexican Constitution recognizes the principle of double jeopardy in that no one can be tried for the same crime twice. Located under artículo 23, no criminal trial can have more than three instances, and no one can be tried twice for the same crime, whether or not the accused was acquitted or convicted.
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''Legality Principle''
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The legality principle is the idea that laws are clear, accessible and understandable by all, and non-retroactive. Non-retroactivity means that a person cannot be charged for a crime that did not exist or was not enforced at the time the person was charged. This principle is found in Artículo 14 of the Constitution.
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''Presumption of Innocence''
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Mexico has in the past been criticized as having a “guilty until proven innocent” standard<ref>http://www.mexonline.com/lawreview.htm</ref>.  However, with the 2008 reforms, the presumption of innocence standard is being implemented throughout the Mexican criminal justice system. The extent to which this standard has been adopted throughout the States is currently difficult to discern. This standard has not been codified in the Constitution or the CFPP.
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However, this right is guaranteed by Article 14(2) of the ICCPR.
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''Procedure with Witnesses''
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Before giving their testimony, witnesses are instructed on the penalties of the Criminal Code for giving false statements and refusing to testify. Witnesses then take an oath, swearing to tell the truth, and are then instructed to give personal information such as full name, age, place of origin, etc., and any relationship they have to the accused. The public prosecutor, the accused, the defence, and the victim(s) all have the right to cross-examine
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Revision as of 15:27, 5 March 2018

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CODES

LEGAL TRAINING RESOURCE CENTER

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Background

Mexico is a federal republic, which has three levels of government: federal, state and municipal. There are also three levels of criminal systems. The federal system governs crimes within the federal jurisdiction (including serious crimes such as drug possession, alien smuggling, and some firearms charges) . Each of Mexico’s 31 states have their own criminal codes and codes of criminal procedure; serious crimes within state-level jurisdiction include homicide, kidnap, rape, possession of a deadly weapon, and property damage. The municipal systems govern minor infractions.

There are also three different jail systems. All municipalities have a smaller jail in the police departments and some municipalities have Centros de Readaptacion Social (CERESOs). The states have the well-known CERESOs. Lastly, the federation hasCentrosFederales de Readaptacion Social(CEFERESOs). These are, typically, jails of maximum security.

All of Mexico’s jails are overcrowded. Some, such as the municipal CERESO of Juarez, Chihuahua, are 200% over capacity. Typically, the jails are overpopulated by 30%. Some jails, such as those in Mexico, D.F., have up to 10 detainees in a room meant for 4 people. These prisoners have to pay cash in exchange for a space to sleep or, if they do not have money, are forced to sleep along the walls. All things in jail can be bought for a price. For example, one can purchase 5 minutes in a shared restroom, cigars, a pillow, etc. Of the prison population, 40% are non-yet-sentenced detainees. For the above reasons, Mexican jails have been named “crime schools” or “crime university"[1].

Type of Legal System

The Mexican legal system can trace its roots back to 16th century Spanish law and pre-Colombian Indigenous law. This included law that was introduced particularly for colonial Mexico that was not present in Spain [2] . The Mexican legal tradition is civil, with the hierarchy of sources of law being first the Constitution, then legislation, then regulation, and finally, custom[3].

The civil law tradition generally follows an inquisitorial model of criminal procedure. However, after substantial reforms throughout the course of Mexico’s history and the influence of different legal systems, Mexico’s legal tradition is unique [4] Under the leadership of President Felipe Calderón (2006-2012), significant reforms were introduced in 2008, to be implemented federally and throughout the country by 2016.

These reforms brought changes to criminal procedure, including a shift to a more adversarial model similar to that of the United States. Additionally, these reforms give greater attention to the rights of the accused, changed the role of the police in criminal investigations, and created specific actions to combat organized crime[5].

By the end of 2012, of Mexico’s 32 states, 22 had ratified the new criminal procedure codes, but only 12 had begun to put them into operation [6]. While the reforms suggested are admirable, they have been criticized as attempting to do too much with too few resources in an unrealistic time frame [7]. It is hopeful that current President Enrique Peña Nieto has reaffirmed his commitment to reforming the justice system

The sources of criminal legislation expressed in the Código Penal Federal (Federal Criminal Code [CPF]) Código Federal de ProcedimientosPenales(Federal Code of Criminal Procedure [CFPP]); these set the standard for the state-level criminal codes and codes of criminal procedure, though there is significant variation from state-to-state [8].

Source of defendants’ rights

The Constitución Política de los EstadosUnidos Mexicanos (the Constitution) is the primary source of defendant’s rights. Defendant’s rights in criminal proceedings are found in Capítulo 1, de los DerechosHumanos y susGarantías(Chapter 1, Human Rights and Guarantees), primarily in artículos13 to 24 [9]. Artículo 29 also protects these fundamental rights by stating that the decrees issued in the Constitution are not to be used to restrict or suspend the rights to no discrimination, recognition of legal personality, life, personal integrity, protection of the family, name and nationality; rights of the child; political rights; freedom of though, conscience, and religion; principles of legality and retroactivity of laws; the prohibition of the death penalty, the prohibition of slavery and servitude; and the prohibition of forced disappearance and torture.

Mexico also acceded to the International Covenant on Civil and Political Rights (ICCPR) in 1981, of which Article 14 is most important when considering the rights of those accused of a crime. This includes a number of due process rights, equality before the courts and tribunals, and the right to be presumed innocent until proven guilty. However, given the hierarchy of the Mexican legal tradition, international treaties and agreements are trumped by the Constitution [10] .

The 2008 reforms include some of ICCPR provisions, such as a specific ban on the use of torture, the presumption of innocence, protections to reinforce due process, and the requirement that all defendants have professional legal representation [11].

Defendant rights are also expressed in the CFPP, which outlines the process of criminal procedures.

Artículo: 13 (no trial using underinclusive laws or special courts), 14 (laws not applied retroactively), 16 (warrants and indictments), 17 (fair trial), 18 (prisons, preventive custody), 19 (72-hours for suspects in judicial custody), 20 (privileges and immunities of defendants), 21 (authorities to punish criminal offences), 22 (against torture and unusual punishments), 23 (no one put on trial twice for the same crime, no criminal trial to have more than 3 instances), 24 (no crime related to the practice of religion as long as it is lawful).

Police Procedures

Complaint/Information

Complaints are received by the public prosecutor[12].

Arrest

The executing authority of an arrest shall put the indicted individual under a judge’s jurisdiction without delay. This authority is accountable for any wrongdoing that occurs during the arrest. The violation of these rules is considered a criminal offense. In the case of blatant criminal offense, any person shall have the power to arrest the perpetrator and then hand him/her to the closest authority, who shall in turn hand the perpetrator over to the closest public prosecutor[13].

Pre-Trial Detention

Once suspects are detained, their case is to be registered with the Public Ministry immediately[14]. No more than 48 hours after the arrest has taken place, the defendant will be notified in a public hearing about the nature of the accusation[15]. The Constitution states that the accused shall be tried within 4 month if charged with an offense whose maximum penalty does not exceed 2 years imprisonment and within a year if the maximum penalty is greater[16].

Searches

To obtain a search warrant, the existence of evidence or information that leads to the reasonable assumption that the accused was present during the crime will suffice[17].

Interrogation

Article 20(a)(ii) of the Constitution states that no one shall be compelled to make a statement. Any use of intimidation, torture or solitary confinement shall be forbidden and punished under criminal law. Suspects’ confessions will be valid only when made before a public prosecutor or judge. In both cases the suspect’s lawyer shall be present. A confession made to any other authority shall not be used as evidence in a court of law.

Rights of the Accused: Criminal Law System

Double Jeopardy

The Mexican Constitution recognizes the principle of double jeopardy in that no one can be tried for the same crime twice. Located under artículo 23, no criminal trial can have more than three instances, and no one can be tried twice for the same crime, whether or not the accused was acquitted or convicted.

Legality Principle

The legality principle is the idea that laws are clear, accessible and understandable by all, and non-retroactive. Non-retroactivity means that a person cannot be charged for a crime that did not exist or was not enforced at the time the person was charged. This principle is found in Artículo 14 of the Constitution.

Presumption of Innocence

Mexico has in the past been criticized as having a “guilty until proven innocent” standard[18]. However, with the 2008 reforms, the presumption of innocence standard is being implemented throughout the Mexican criminal justice system. The extent to which this standard has been adopted throughout the States is currently difficult to discern. This standard has not been codified in the Constitution or the CFPP.

However, this right is guaranteed by Article 14(2) of the ICCPR.

Procedure with Witnesses

Before giving their testimony, witnesses are instructed on the penalties of the Criminal Code for giving false statements and refusing to testify. Witnesses then take an oath, swearing to tell the truth, and are then instructed to give personal information such as full name, age, place of origin, etc., and any relationship they have to the accused. The public prosecutor, the accused, the defence, and the victim(s) all have the right to cross-examine



Cite error: Invalid <ref> tag; refs with no name must have content


See Criminal Justice Systems Around the World

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  1. http://abcnews.go.com/amp/International/wireStory/report-mexican-prisons-overcrowded-unsafe-understaffed-48040833
  2. http://www.nyulawglobal.org/globalex/mexico1.htm
  3. Ibid
  4. David Shirk “Justice Reform in Mexico: Change and Challenges in the Judicial Sector” Wilson Center. Page 214. http://www.wilsoncenter.org/sites/default/files/Chapter%207-%20Justice%20Reform%20in%20Mexico,%20Change%20and%20Challenges%20in%20the%20Judicial%20Sector.pdf
  5. Supra note 5 page 216
  6. Clare RibandoSeelke, “Supporting Criminal Justice System Reform in Mexico: The US Role” Congressional Research Service (2013) i
  7. Supra note 5 page 237
  8. Ibidpage 214
  9. http://www.diputados.gob.mx/LeyesBiblio/htm/1.htm
  10. http://www.nyulawglobal.org/globalex/mexico1.htm
  11. Supra note 5 pages223 and 228
  12. Código Federal de Procedimientos Penales,Article 2(I).
  13. Constitución Política de los Estados Unidos Mexicanos, Article 16
  14. Código Federal de Procedimientos Penales, Article 2(IV)
  15. Código Federal de Procedimientos Penales, 20A(II)
  16. Constitución Política de los Estados Unidos Mexicanos, Article 20A (VIII
  17. Código Federal de Procedimientos Penales,Article 63
  18. http://www.mexonline.com/lawreview.htm