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LEGAL TRAINING RESOURCE CENTER
Mexico is a federal republic formed by thirty-two States. The legislation and jurisdiction of the criminal legal system responds to this administrative organization, leaving therefore federal crimes and state crimes according to their corresponding codes. 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.
Before the reform carried out in 2008 regarding the constitutional system in criminal matters, Mexico had an inquisitive criminal system, with bureaucratic, delayed and completely written procedures in which it was common for judges to not have direct contact with the suspect. The 2008 reform, which entered into force throughout the national territory until 2016, introduced a criminal system that is meant to guarantee human rights and has accusatory adversarial courts in Mexico. In this new system, it is mandatory to hold public hearings with the presence of a judge and parties; preventive detention is no longer the rule, but the exception, prioritizing the presumption of innocence; the process is more efficient and all the evidence in a case is released in the same hearing (with certain exceptions) in which the judge must necessarily be present and whom orally has to explain the evaluation of the evidence.
For the proper functioning of this new system, the National Code of Criminal Procedures (Código Nacional de Procedimientos Penales) was drafted, which abrogated the existing procedural criminal codes for each State, as well as procedural federal code. The purpose of this new code is to standardize the national criminal procedure (both of the States and at the federal level) and establish the rules to be observed in the investigation, prosecution and punishment of crimes, to clarify the facts, protect the innocent, ensure that the culprit does not go unpunished and that the damage is repaired, and thus contribute to ensuring access to justice. Despite this, it remains questionable how much justice has been achieved in this area. As in several countries in Latin America, access to justice in Mexico is quite unequal.
The latest legislative reform updated Mexico from the backlog in the administration of justice and protection of human rights, but there are still lags in the system. To mention some examples, in matters of infrastructure, adequate spaces are still needed for oral trials and, in matters of training, the Public Prosecutor, the police, judges and lawyers are mostly outdated. In addition, the workload for public prosecutors and public defenders is extremely high; this does not allow the rights enshrined in the criminal reform to materialize. Even more worrisome is the fact that due to the procedural structure set forth in the National Code of Criminal Procedures, one could pay attention to the fabrication of guilty parties, torture of the accused and impunity. Finally, levels of corruption by the operators of the justice system remain high.
Additionally, the penitentiary centers administered by the Mexican States are, in their majority, overpopulated. In a study conducted from 2011 to 2017 by the National Census of Government, Public Safety and State Penitentiary System (Censo Nacional de Gobierno, Seguridad Pública y Sistema Penitenciario Estatales), it is noted that from 2011 to 2015, State prisons had an average of 120% overcrowding, with 100% being the maximum capacity of prisoners per jail. This problem is accentuated by the fact that a fairly significant part of the incarcerated population was deprived of their freedom without ever having a judicial conviction. In 2016, for example, sixty thousand and twenty-one people of the inmates, 35% of the total incarcerated population, had no sentence. At the end of 2016, one hundred and eighty-eight thousand two hundred and sixty-two people were confined in prisons and one thousand nine hundred and thirteen in treatment and/or detention centers for adolescents.
Type of Legal System
Having been part of Nueva España, one of the Spanish colonies, Mexico adopted and continues to have a civil legal system adopted from the Spanish, who in turn adopted the Napoleonic civil law system. The Mexican legal system can thus 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 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.
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 .
Legal situation of the rights of the accused
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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 right of amparo. This is a special kind 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.
Rights in Prison
Every accused in a criminal trial enjoy the guarantees outlined in Article 20 of the Mexican Constitution. The guarantees and rights of the people held in prison are established in the Reglamento de Los Centros Federales de Readaptación Social de 1991 (Regulation of the Federal Centers of Social Readaptation), which holds that in accordance with the Article 18 of the Constitution, the purpose of the penalty of imprisonment is the social readjustment of the sentenced person, on the basis of education, work and training for himself.
The inmates have guaranteed that any conduct that implies the use of physical or moral violence or procedures that cause any type of injury or affect their dignity is forbidden, and consequently the authority will refrain from making acts that can translate in degrading or cruel treatment .
Also, in addition to the establishing rights and guarantees for prisoners, they have guaranteed access to health in Chapter 5, which states that the centers must be sufficient to meet all kinds of health needs . Within that, they will have professionals in case they require family planning , and the staff of the centers must ensure the physical and mental health of the inmates .
Initial Court Appearance
The preliminary investigation is executed by the public prosecutor. The police act under the direct leadership and command of the public prosecutor’s office in the investigation of crimes. The Public Prosecutor’s office is obliged to proceed automatically into the investigation of crimes once they are notified of them. Upon the preliminary investigation proceedings by the Federal Public Ministry, if it is found detention is justified, it will move on to make appropriation to the courts, at which time the Public Prosecutor can order the release if they find the detention to be unjustified. In Mexico, arguments are written rather than presented live, so a court appearance may not occur at all.
Article 154 describes the procedure of the preliminary statement. This statement includes personal details of the accused (such as nicknames, membership to an Indigenous group, ability to understand the Castilian Spanish language, and so forth). The accused will then be told that they have the right to defend themselves or be defended by someone they trust (with professional graduate certificate in law or with authorization); where there is a failure to do so the judge will appoint a public defender. Following this, the accused, with the help of counsel if necessary, renders their statement orally or in writing. Both the defense and the public prosecutor may then question the accused.
For proceedings to be seen before district judges, 5 days from the day the defendant or his or her counsel present their findings, a hearing will be scheduled. During the hearing, the accused may be questioned on the material facts of the trial. After hearing the arguments, the proceedings will end unless the judge deems a rehearing appropriate.
For proceedings seen before a popular jury, the proceedings end when the jurors have voted and deliver a verdict. Following discussion the judge will issue an appropriate sentence.
When during the examination of people, events or objects, special expertise is required, the court is permitted to proceed with the intervention of peritos, experts. This is particularly relevant when the accused belongs to an Indigenous group, where it has already been acknowledged in Article 154 that they may require an interpreter with knowledge of their language and culture. The defense and prosecution have the right to nominate up to 2 experts on each point that requires intervention. The experts must have an official degree in the subject area they are intervening upon. Experts may also be appointed by the court.
If the maximum potential sentence is less than two years, judges are theoretically required to reach a verdict within 4 months. If the maximum potential sentence exceeds two years, judges normally have up to a year to resolve cases.
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 appeal may be brought within 5 days following a sentence, or three days if it is brought against the judicial decree. If the appeal is valid, it is forwarded to the Court of Appeal.
- National Code of Criminal Procedures (Código Nacional de Procedimientos Penales). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm
- “Censo Nacional de Gobierno, Seguridad Pública y Sistema Penitenciario Estatales 2017: Presentación de resultados generales”. Censo Nacional de Gobierno 2017. Updated: August 30th, 2018. Available online: http://www.beta.inegi.org.mx/contenidos/programas/cngspspe/2017/doc/cngspspe_2017_resultados.pdf
- “En Números: Estadísticas sobre el sistema penitenciario estatal en México”. Instituto Nacional de Estadística y Geografía (2017). Available online: http://www.cdeunodc.inegi.org.mx/unodc/wp-content/uploads/2018/01/en_numeros2.pdf.
- 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
- 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
- Código Federal de Procedimientos Penales,Article 363
- Reglamento de Los Centros Federales de Readaptación Social, Article 9 (http://ordenjuridico.gob.mx/Publicaciones/pdf/R120.pdf)
- Reglamento de Los Centros Federales de Readaptación Social, Article 45
- Reglamento de Los Centros Federales de Readaptación Social, Article 51 inc 2
- Reglamento de Los Centros Federales de Readaptación Social, Article 51 inc 1
- Código Federal de Procedimientos Penales,Article 2
- Código Federal de Procedimientos Penales,Article 113
- Código Federal de Procedimientos Penales,Article 135
- Código Federal de Procedimientos Penales,Article 155
- Código Federal de Procedimientos Penales,Articles 305-350
- Código Federal de Procedimientos Penales,Article 220
- Código Federal de Procedimientos Penales,Article 222
- Código Federal de Procedimientos Penales,Article 223
- Código Federal de Procedimientos Penales,Article 363-391
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