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LEGAL TRAINING RESOURCE CENTER
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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".
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  . The Mexican legal tradition is civil, with the hierarchy of sources of law being first the Constitution, then legislation, then regulation, and finally, custom.
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  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.
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 . 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 . 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 .
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 . 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  .
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 .
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).
Complaints are received by the public prosecutor.
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.
Once suspects are detained, their case is to be registered with the Public Ministry immediately. 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. 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.
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.
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
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.
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. 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 the witness. This is all recorded. When the witness is finished giving his or her statement, he/she may review it, ratify or amend it, and then sign it.
Capital punishment was officially abolished in 2005, though in civil cases it has not been used since 1937, and since 1961 in military cases. The prohibition on the death penalty is found in the Constitution under artículo 29.
Due Process Rights
'Freedom from Prolonged Pre-Trial Detention'
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.
'Right to Counsel'
Article 20(IX) outlines the requirements for the accused’s representation. The accused may represent his or herself, or may be represented by counsel. Should the accused have no one to defend him or her, a list of counsel will be provided, or otherwise the court can appoint counsel for his or her defense.
'Right to Habeas Corpus'
The right to habeas corpus is found in Mexican law as the law of amparo. This is a special writ of protection or injunction common to Latin American countries. It is a right of constitutional protection, when the accused believes his or her constitutional or other rights are being violated, they can invoke amparo.
'Right to Notice of Charges'
Under Article 20(iii) of the Constitution, the accused is to be notified within 48 hours of arrest the name of his or her accuser, and the nature of and cause for the accusation.
'Right to a Speedy Trial'
The right to a speedy trial is found within Artículo 17 of the Constitution, which holds that all persons have the right to an expedient, thorough, and impartial trial.
'Right to Independent and Impartial Court'
The right to an independent and impartial court is found within Artículo 17 of the Constitution, which holds that all persons have the right to an expedient, thorough, and impartial trial.
'Right to a Fair Trial'
The right to a fair trial is found within Artículo 17 of the Constitution, which holds that all persons have the right to an expedient, thorough, and impartial trial.
This right is also expressed in Article 14(1) of the ICCPR, which states that all people have a right to a “fair and public hearing.”
'Right to non Self-Discrimination'
Article 20(II) provides that no accused will be forced to be a witness against him or herself.
'Freedom from Punishment'
Artículo 22 forbids the use of punishments, such as forms of torture, beating, excessive fines and excessive seizures of property. However, it goes on to outline the cases in which seizure of property may be permitted.
'Right to Appeal'
Appeals are designed to examine whether the applicable law applied in the decision was not applied correctly, whether regulatory principles were violated, or if facts were altered, unfounded, or not reasoned correctly. The accused will have the right to appeal in such cases.
Cite error: Invalid
refs with no name must have content
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- 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
- Supra note 5 page 216
- Clare RibandoSeelke, “Supporting Criminal Justice System Reform in Mexico: The US Role” Congressional Research Service (2013) i
- Supra note 5 page 237
- Ibidpage 214
- Supra note 5 pages223 and 228
- Código Federal de Procedimientos Penales,Article 2(I).
- Constitución Política de los Estados Unidos Mexicanos, Article 16
- Código Federal de Procedimientos Penales, Article 2(IV)
- Código Federal de Procedimientos Penales, 20A(II)
- Constitución Política de los Estados Unidos Mexicanos, Article 20A (VIII
- Código Federal de Procedimientos Penales,Article 63
- Código Federal de Procedimientos Penales,Articles 247-257