Difference between revisions of "Mexico"

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|<h2    id="mp-dyk-h2" style="margin:3px; background:#143966;      font-size:120%;  font-weight:bold; border:1px solid #a3bfb1;      text-align:left;  color:#ffffff; padding:0.2em    0.4em;">CODES</h2>
*[http://www.ordenjuridico.gob.mx Codes of Mexico]
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*[http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm National Code of Criminal Procedures (Código Nacional de Procedimientos Penales)]
*[http://www.stj.gob.mx/biblioteca/legislacion.php Codes of Chihuahua]
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*[http://www.diputados.gob.mx/LeyesBiblio/ref/cpf.htm Federal Criminal Code (Código Penal Federal)]
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*[http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos)]
 
<h2    id="mp-dyk-h2" style="margin:3px; background:#143966;        font-size:120%; font-weight:bold; border:1px solid #a3bfb1;        text-align:left; color:#ffffff; padding:0.2em  0.4em;">LEGAL TRAINING    RESOURCE CENTER</h2>
 
<h2    id="mp-dyk-h2" style="margin:3px; background:#143966;        font-size:120%; font-weight:bold; border:1px solid #a3bfb1;        text-align:left; color:#ffffff; padding:0.2em  0.4em;">LEGAL TRAINING    RESOURCE CENTER</h2>
 
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]
 
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]

Latest revision as of 15:43, 11 July 2019

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CODES

LEGAL TRAINING RESOURCE CENTER

Background

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[1]) 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[2]), 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.[3]

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 [4].


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 [5] 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[6]. 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 [7].


Legal situation of the rights of the accused

In Mexico, one of the most relevant procedural rights is the right to an adequate and immediate legal advice and defense. Therefore, understanding it as a fundamental and inalienable right, every accused must exercise this adjective right through their defender, who must necessarily be a lawyer with a professional license and must assist the accused from their detention until the conclusion of the procedure.


The defenders of the accused may be either hired lawyers or the State may provide public defenders or ex officio, which are free for the accused. Victims of a crime, if any, also have the right to have a free legal advisor at any stage of the procedure, but this right of the victim is optional.


In principle, as established by legislation, the jurisdictional bodies have the obligation not to give preference or unequal treatment to the accused and their cases because they have private or public defenders; however, the quality of the defense of public attorneys is usually very questionable and, in addition, judicial impartiality in Mexico is not always guaranteed. Consequently, it is advisable to hire attorneys or to find free defense services from non-governmental organizations.


The following non-governmental organizations stand out in Mexico, offering free of charge defense services to the accused, as well as counseling victims of crime: Mexican Commission for the Defense and Promotion of Human Rights (Comisión Mexicana de Defensa y Promoción de los Derechos Humanos), Miguel Agustín Pro Juárez Human Rights Center (Centro de Derechos Humanos Miguel Agustín Pro Juárez), United Mexico Pro Human Rights (México Unido Pro Derechos Humanos) and Human Rights Center Paso del Norte (Centro de Derechos Humanos Paso del Norte).


Pre-trial Procedures

The Mexican criminal procedure, according to the latest legislative reform, is divided into two stages: investigation and the proper trial.


Initial Investigation

Once the criminal complaint has been filed by the offended party, the Public Prosecutor's Office has the obligation to conduct the investigation, having the investigative police at its command for that purpose.


In the beginning, the Public Prosecutor is not bound to give access to the investigation records to the accused, until one of the following situations happens: a) that the accused is in custody, b) that the Public Prosecutor summons him in order to obtain the suspect’s statement, or c) prior to the suspect´s first hearing before a control judge. However, this provision is subject to judicial interpretation, since various courts have considered that it violates the defendant´s right of defense, which must prevail from the moment a person is identified as likely to be responsible for a crime (Barreto Leiva v. Venezuela case, judgment issued on November 17, 2009 by the Inter-American Court of Human Rights).


An important change in the new Mexican criminal system is that, within the investigation stage, all the parties (accused, defender, victim and legal counsel) have the right to participate in the criminal process on equal terms with the Public Prosecutor. That is, they can carry out investigative actions and can request authorization from the judicial authority to carry out investigation techniques that require judicial control (searches, intervention of private communications, among others).


The National Code of Criminal Procedures does not establish a maximum duration of this initial investigation period. Once the Public Prosecutor's Office considers that the necessary elements exist to prove that an offense or crime was committed, and that there is a possibility that the accused participated in its commission, it has the authority to request an imputation formulation hearing before a control judge.

Other cases in which a person must be taken immediately to such a hearing before a control judge is when they are arrested in flagrante delicto or by arrest warrant.


Proper Trial Phase

Hearing of accusation and linking to process

In this hearing, the parties to the process are summoned to a hearing before a control judge. Two of the most relevant principles of criminal proceedings in this judicial phase are the orality of all hearings and judicial impartiality. This means that the judge who will decide the hearing cannot have prior knowledge of the criminal debate that will be submitted for consideration. Moreover, the judge does not have access to the records contained in the investigation file, so the parties have to be sufficiently skilled to be able to present a convincing theory of the case for the judicial authority, since the latter will only be able to resolve based on what the parties orally transmit.


In this hearing, the Public Prosecutor must formulate the accusation, via a narrative that establishes the facts that prove the crime and the probable responsibility of the accused in its commission. Likewise, the Public Prosecutor must explain to the judge how the records of the file are related in order to prove his accusation. Once the accused hears the accusation, he or she can reply to it or exercise his or her right to remain silent.


Once the aforementioned has happened, the control judge will ask the accused if it is his or her wish that his or her legal situation be resolved at that moment, or if he or she prefers to adhere to the constitutional period of 72 or 144 hours. The latter may allow the accused to analyze the accusation and gather sufficient evidence to dispel his probable responsibility.


In this hearing that is meant to resolve the legal situation of the accused, the control judge must estimate based on the evidence offered by the parties if he or she considers it necessary to link the accused to the process or not. In case the accused is linked to the process, a complementary investigation stage will follow for a maximum of 6 months, which will be under judicial supervision. Only in case the Public Prosecutor's Office considers that there is sufficient evidence to prove the criminal responsibility of the accused, does it make an accusation (only stage that happens in writing) and asks for an order to begin a trial.


Only in cases that merit preventive detention (intentional homicide, carrying a weapon, robbery to motor transport of cargo, acts of corruption, genocide, rape, treason, espionage, terrorism, sabotage, corruption of minors, trafficking of minors, organized crime and crimes against health), is the accused given mandatory prison. In other crimes, if requested for, the Public Prosecutor's Office has to prove why said precautionary measure is the only appropriate for the continuation of the process.


Intermediate hearing

The purpose of the intermediate stage is to offer and admit the means of evidence, as well as to clarify the disputed facts that will be the subject of the trial (that is, the parties may enter into evidentiary agreements to reduce the burden of trial).

This stage will consist of two phases, one written and one oral. The written phase will begin with the indictment made by the Public Prosecutor and will include all the acts prior to the holding of the intermediate hearing. The second phase will begin with the intermediate hearing and will culminate with the issuance of the decision to begin the trial.

This hearing is the last opportunity that the parties have to offer the evidence that will be presented for trial, with the exception of the supervening ones.


Trial hearings

The trial hearing begins with the presentation and deposition of evidence offered by the parties at the intermediate hearing, including questioning witnesses and expert evidence. Once the parties have deliberated at the hearing, the trial court proceeds to issue a decision that acquits or convicts the accused.


Recourses

The National Code of Criminal Procedures[8] only recognizes the revocation and appeal recourses. In case the accused wants to combat the ruling issued by the trial court, the appeal will be resolved by a court of appeal from the same local or federal judicial power.


Amparo

In accordance with articles 103 and 107 of the Political Constitution of the United Mexican States[9], all acts or omissions of authority that violate recognized human rights granted for their protection by the Constitution, as well as international treaties of which Mexico is a party, can be fought through protection of amparo, either direct or indirect, which will be resolved by a federal court.


a. Indirect amparo All acts or omissions that violate human rights within the criminal process, and that do not expressly admit an appeal for revocation or appeal, can be fought through indirect protection that will be heard by a district judge.

b. Direct amparo The decision issued by the trial court, once it is confirmed, revoked or modified by the appeals court, if it is considered that it violates human rights, can be fought through direct protection, which will be heard by a collegiate court.


Sources of defendants's rights

The rights of the accused are protected by the Political Constitution of the United Mexican States[10] and the international treaties of which Mexico is a ratified State-Party, the National Code of Criminal Procedures [11] and the state and federal criminal codes applicable to each case[12].


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 [13] .

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 [14].


Crimes are prosecuted by the local jurisdiction in principle, unless any of the cases contained in Article 50 of the Organic Law of the Judicial Power of the Federation[15] happens, which are the following:


a. Crimes provided for in federal laws and international treaties, provided that, among others, they are committed abroad by Mexican diplomatic agents, or within Mexican representations abroad; if the Federation is a passive subject; if committed by a public servant or federal employee, or committed against him, by the exercise of his or her functions; if the President, office Ministries, the Attorney General of the Republic, the deputies and senators to Congress, the justices, magistrates and judges of the Federal Judicial Power, the members of the Council of the Federal Judicature, the magistrates of the Electoral Tribunal of the Judicial Power of the Federation, the members of the General Council of the Federal Electoral Institute, the president of the National Commission of Human Rights (Comisión Nacional de los Derechos Humanos), the directors or members of the Governing Boards or their equivalents of the decentralized organisms; those perpetrated due to the operation of a federal public service, even if said service is decentralized or concessioned; those perpetrated against the operation of a federal public service or in impairment of the goods affected to the satisfaction of said service, even if it is decentralized or concessioned;

b. International abduction of minors;

c. Extradition proceedings;

d. Authorizations to intervene in any private communication; as well as for the authorizations of the geographic location in real time or the delivery of conserved data of communication equipment associated with a line;

e. Those of the common jurisdiction with respect to which the Public Prosecutor of the Federation has exercised attraction;

f. Any other provided for by special laws, among which are some cases of kidnapping, money laundering, carrying weapons for the exclusive use of the army, etc.


Rights of the Accused in the different stages of the criminal procedure

The criminal procedure is governed by several principles and the rights of those under trial in the proceedings, which are mainly provided for in the National Code of Criminal Procedures[16]. These principles and rights are mainly the following:


• Publicity principle - Hearings of the proceedings will be public, with some exceptions, allowing the media to have access.

• Contradiction principle - The parties may hear, challenge or confront the evidence, as well as oppose the petitions and allegations of the other party.

• Continuity principle - Excluding exceptional cases, the procedures will be carried out continuously, successively and sequentially.

• Consolidation principle - Efforts will be made to consolidate the corresponding evidence stage in a single hearing or, if necessary, to extend it in consecutive days. Due to this principle, the accumulation of cases can also be requested in certain cases.

• Immediacy principle - This principle establishes that the parties involved and the competent judge of each case should participate in all proceedings.

• Equal treatment before the law principle - All people should receive the same treatment, without any discrimination, and have the same opportunity to defend their position.

• Equal treatment between the parties involved.

• Previous trial and due process principle - No one can be sentenced to a conviction or subjected to a security measure, if it is not by virtue of a judicial decision issued in accordance with the law, based on a fair trial and with strict adherence to the human rights provided for in the Constitution, treaties and other laws that provide for human rights.

• Presumption of innocence principle - In the Mexican legal system, every person is presumed innocent until proven guilty and a judicial decision declaring his or her responsibility is issued. Every person must be treated based on this presumption of innocence during the entire procedure, up to the moment of the issuance of the sentence that defines, where appropriate, his or her responsibility.

• Double trial prohibition principle - No one can be subjected to a second criminal process for facts already resolved in another.

• Intimacy and privacy principle - This principle protects the privacy and personal data of the people involved in a criminal procedure.

• Prompt justice right - This right, which is related to the principle of continuity, is intended to ensure that people are judged within the legally established deadlines and that the authorities respond to the parties´ petitions promptly, without causing unwarranted delays.

• Right to an adequate and immediate legal advice and defense - As it was previously explained, “defense” is a fundamental and inalienable right, for which the accused must exercise it through a public or private defender.

• Guarantee of being duly informed of your rights - Both the victim and the accused have the right to know their rights.

• Right of respect of the person´s freedom - No one can be deprived of freedom without a warrant from the judicial authority, except for the exceptions provided for in the laws, as in the case of an in flagrante delicto. Moreover, preventive detention is exceptional.


Likewise, articles 14, 16 and 20 of the Political Constitution of the United Mexican States[17] establish various substantive rights in favor of any person accused in the commission of a crime, or of the rest of the parties in the criminal process. Among others, these rights and guarantees are the following: prohibition of non-retroactivity of the law to the detriment of any person, prohibition of analogy in criminal trials, inviolability of private communications, right to adequate defense, right to reparation of damages, presumption of innocence and the right to remain silent.


Additional Resources

“Reforma penal 2008-2016: El Sistema Penal Acusatorio en México”. Coordinator: Arely Gómez González. Instituto Nacional de Ciencias Penales.[18]
  1. National Code of Criminal Procedures (Código Nacional de Procedimientos Penales). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm
  2. “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
  3. “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.
  4. http://www.nyulawglobal.org/globalex/mexico1.htm
  5. 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
  6. Supra note 5 page 216
  7. Ibidpage 214
  8. National Code of Criminal Procedures (Código Nacional de Procedimientos Penales). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm
  9. Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm
  10. Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm.
  11. National Code of Criminal Procedures (Código Nacional de Procedimientos Penales). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm.
  12. Federal Criminal Code (Código Penal Federal). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cpf.htm.
  13. http://www.nyulawglobal.org/globalex/mexico1.htm
  14. Supra note 5 pages223 and 228
  15. Organic Law of the Judicial Power of the Federation (Ley Orgánica del Poder Judicial de la Federación). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/lopjf.htm
  16. National Code of Criminal Procedures (Código Nacional de Procedimientos Penales). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cnpp.htm
  17. Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos Mexicanos). Available online: http://www.diputados.gob.mx/LeyesBiblio/ref/cpeum.htm
  18. “Reforma penal 2008-2016: El Sistema Penal Acusatorio en México”. Coordinator: Arely Gómez González. Instituto Nacional de Ciencias Penales. November, 2016. Available online: http://www.inacipe.gob.mx/stories/publicaciones/novedades/ReformaPenal2008-2016.pdf.