New Judicial Reforms in Mexico: Will anything really change?

New Judicial Reforms in Mexico: Will anything really change?

Mexico City Mayor Miguel Ángel Mancera (center left)  and 
Secretary of Government Relations [SEGOB] Miguel Ángel Osorio Chong (center right)
bang gavels to bring new criminal justice system into effect
Photo: Cuartoscuro

Sinembargo: Mayela Sánchez

Mexico City, January 17, 2015 – Implementation of the new criminal justice system in the Federal District [Mexico City], which began yesterday and must be completed in eighteen months, faces several challenges—from ensuring that the [new judicial] processes are publicized to citizens and the media to avoiding a lack of adequate training and, in the rush, getting a mere simulation of the new system, considered specialists in the field.

The new criminal justice system is part of the constitutional reform in criminal justice and public security that went into effect on June 18, 2008. The reform establishes a restructuring of the criminal justice system in the country, which will mean moving from a mixed system to an accusatory adversarial system; that is, one based on oral trials. The new system will also involve:

  • New responsibilities for federal, state and municipal police in the investigation of crimes, in safeguarding the site where apparently a crime was committed and in collecting evidence during an investigation;
  • Conducting oral trials for serious crimes [felonies] with public and recorded hearings; and
  • Mechanisms for alternative justice [sentences] for minor offenses.

Currently, 28 states are already operating with the new criminal justice system in their local regions, although the majority do so only partially, according to a study published November 2014 by the Research Center for Development (CIDAC). The deadline set for full implementation of the new system throughout the country is June 18, 2016.

At zero hour on Friday, the new system began operating in the country’s capital. Its operation involves a particular challenge given that its size and the nature of its crime rate means a greater workload than in the states, pointed out María Novoa, director of CIDAC’s Collective Justice project.

Novoa also emphasized the fact that the four actors involved—police, defenders, public prosecutors, and judges and magistrates—do not rely on the same conditions and capabilities needed to operate the new justice system effectively. Specific reference was made to the police and public defenders, who have yet to be trained.

Emilio Carranza, researcher at the Institute for Security and Democracy (INSYDE), summarized the challenges of the new system in three key areas:

  • Ensuring the right of access to justice;
  • Accountability [of judicial authorities]; and
  • Information management; that is, how information to be made public is defined and communicated.

Regarding access to justice, Carranza, a member of INSYDE’s Violence and the Media Project, identified the main aspect to be taken into account is reducing the percentage of prisoners:

  • Inmates who have no sentence—according to the Superior Court of the Federal District (TSJDF), they represent 53 percent of the total prison population; and of
  • Inmates in preventive custody, some 40 percent of prisoners who could comply with precautionary measures that are alternatives to prison.

Another challenge, he explained, will be to reduce pending criminal investigations, which comprise about 81 percent of criminal investigations, according to data from the Technical Secretariat for Implementation of the Criminal Justice Reform (SETEC).

Carranza also stressed the importance of judges beginning to hand down verdicts with gender perspectives:

“This is a key element. Owing to the experience that we have in states where the adversarial system is already implemented, there are judges who definitely take [gender] into account, but the majority do not.”

Regarding accountability, Carranza explained that one challenge is that sentences be delivered in a language accessible to everyone. He referred to a TSJDF [Federal District Judicial Authority] survey showing that 70 percent of people who received a ruling did not receive an explanation of the verdict beyond the legal language in which it was handed down. The Penal Reform suggests that verdicts must be given in understandable language.

Another challenge will be for the Ministerial Police [investigative police in Public Ministry] to stop using torture to obtain incriminating statements:

“This is an element where the police are going to start to work on themselves, because in the adversarial system self-incriminating statements no longer have probative value in the investigative stage; thus, the police must be trained and stop resorting to torture.”

Added to this, they will have to look for results regarding sanctions against the authorities, he added. Carranza said that, according to the TSJDF, in the last ten years there has not been one single penalty against criminal judges in the Federal District. The new system incorporates mechanisms of penalty [suspension, ban, fine], such that results will have to be seen on this issue, he said.

Another challenge will be the cultural transformation of how justice is conceived, particularly by the parties involved in the process. Currently, only 6 percent of the country’s population considers the rights of accused persons to be important, the researcher indicated.

Regarding the management of information, he said that the immediate challenges will be that the press be allowed to attend all hearings [trial proceedings] and that transparent mechanisms and protocols be developed for defining the conditions under which journalists will be able to attend public hearings.

The principle of publication and access by all citizens also needs to be guaranteed, not just for journalists but for all recordings of public hearings, added the INSYDE researcher. Another element is developing a comprehensive and inclusive communications strategy.

For Alicia Beatriz Azzolini, now a researcher at the National Institute of Criminal Sciences (INACIPE, a public institution that has promoted reform in the criminal justice system), the challenge will be to transform the way the judicial system works, since it assumes an institutional restructuring involving the police, public defenders, public prosecutors, judges and magistrates.Azzolini, a former Central Public Prosecutor for Matters of Minors in the Mexico City Public Prosecutor’s Office during the scandal at the “Casitas del Sur” shelter, also referred to the risk that implementation of the new system might have no effect on how justice is administered in the country’s capital:

“The biggest risk I see is this: that ultimately it might not change and that the legal proceedings would continue being drawn-out. It couldn’t lighten the workload […]. The worst that could happen is that if the model doesn’t work well, they’ll say ‘it doesn’t work, it failed,’ and then we would remain with the old [inquisitorial system] that we had. That would be very serious.”

Enough Time?

During the first phase of implementation in the Federal District, the new system will cover only criminal offenses prosecuted by complaint or committed by negligence [i.e., minor crimes]. In a second phase, which will begin to operate this summer, it will be extended to serious crimes [felonies] and in the second half of 2016 (the year in which it must be implemented throughout the country), the third and final phase will begin.

In this regard, Carranza said that this first stage will be a “learning curve”; therefore, he considered that the decision to start with less serious offenses was

“a prudent step to avoid making mistakes and not be in the public eye, right in the center of the country, when all eyes are watching you.”

Azzolini agreed that beginning implementation of the new system with minor offenses responds to the anticipation that if there are errors, they might not have major impact. She gave an example:

“It isn’t the same thing that 5,000 pesos in property damage [arising] from trespassing remains unpunished, as that a serial killer goes unpunished or is never apprehended.”

Another explanation for this tiered model, she said, is that crimes initiated by complaint are less complex to solve.

However, Novoa [CIDAC] warned that the short time the new system has to achieve full implementation in the country’s capital could pose a risk for its effective operation. She compared the situation in the Federal District to states like Oaxaca and Chihuahua, which began implementing the new system several years ago:

“It is a new system. It has its degrees of difficulty because a structural change has to be made inside the institutions, and it is the institutions that bring deficits.”

Therefore, she considered that another challenge in the Federal District will be precisely to implement the change in little time and with a heavy workload. The risk, she said, is that if problems arise with non-serious crimes, [the new system] won’t be sufficient to operate properly with felony crimes.

The 2014 Report of Findings on Progress in the Implementation and Operation of Penal Reform in Mexico, published by CIDAC last November 20, stated that the main risk associated with the approaching deadline for complete operation of the new system is that it might be implemented with deficiencies and simulated changes that would give continuity to the use of old practices.

Enough Training?

Implementation of the new criminal justic system requires training all the actors who are involved in the process of prosecuting and administering justice: police, public prosecutors, judges, mediators, prison personnel, defenders and [forensic] experts.

In announcing implementation of the new system, the government of the Federal District said that it has launched 40 classrooms dedicated to oral proceedings; in February another 40 will be added. The government also indicated that it will have 45 judges, five of them to deal with cases involving teenagers.

Edgar Elías Azar, TSJDF president, explained that 200 million pesos [13.5 million USD] have been set aside. The funds were used to build 30 courtrooms for hearings, for examinations, for oral trials; four administrative management units, one unit for mediation and “technology that makes it easier for the authorities to make audio and video recording of the hearings.”

MV Note: Legal proceedings conducted in the inquisitorial system take place in prisons; hence, the need to construct public court facilities.

It was also reported that the Office of Legal Services will have new furniture in its work of territorial coordination of public security and law enforcement. The government also highlighted the training of:

  • 55,419 police personnel;
  • 3,283 public servants who are part of the Attorney General’s Office of the Federal District (PGJDF);
  • 360 public defenders; and
  • 924 members of the Under-Secretariat of the Prison System.

Regardless of these figures, Novoa said that the Federal District has had difficulties in implementing the new system. She explained:

“No comprehensive planning process is known. [If it exists,] we are not familiar with it.”

To this problem is added a problem in inter-agency coordination, especially between the Federal District’s Attorney General’s Office and the Judiciary. The CIDAC researcher asserted:

“The implementation process has had difficulties both in planning [and] inter-agency coordination. Let’s say that it has not managed to create the minimum conditions necessary in all the institutions and personnel.”

Novoa said that it isn’t just about the resources allocated, but the effectiveness of the new system’s operation. She stated the obvious:

“It isn’t just building courtrooms. It isn’t just constructing buildings. It isn’t just buying and installing technology. It is a process that is going to make a significant change, deepen the way of working, and that might generate not only new [work] profiles, but that all personnel [police, public prosecutors, judges, etc.] might have the expertise necessary to respond to this new system and this new way of working.”

Carranza agreed that government spending does not mean efficiency in a criminal justice system; moreover, he pointed out that the operators of the new criminal justice system

“have received informal training; it was not systematic training. There were workshops, short courses, where diplomas were given only in order to justify the expenditure … ; [needless to say,] it does not guarantee that the system is going to be efficient.”

Novoa warned that the risk that the new system might not be properly implemented is that it might feed the public perception that impunity prevails. Addressing [implementation in] the country’s capital, she explained, there is a great expectation about the results from operation of the new criminal justice system in Mexico City. She summed it up like this:

“If it is done well, it is going to be a great example at the national level, but if it does not go well it is a problem in terms of the credibility that this new criminal procedural system is going to have. This is the importance of the Federal District in this [implementation] process.”

Spanish original

See also: Operation of Oral Trials Will Be “Ideal” in Ten Years.

Posted 5 days ago by

 

 

Mexico in Crisis: Government Says Detention Without Charges Will Remain in “New” Criminal Justice System

Posted: 04 Feb 2015 07:17 AM PST

Proceso: Marco Appel

Geneva, Switzerland – The legal figure of arraigo—strongly criticized by international human rights organizations and institutions—will not be eliminated by the reform of the penal system, affirmed Undersecretary for Multilateral Affairs and Human Rights at the Foreign Ministry (SRE ), Juan Manuel Gómez Robledo, speaking before the UN Committee on Forced Disappearance, which today concluded the process of evaluating Mexico.

MV Note: Arraigo, literally root, is a legal concept under which the Public Prosecutor may request court order that a suspect be held without formal charges for up to 40 days. Also by court order, suspect may be held for another 40 days without charges.

Robledo explained that the new Mexican criminal justice system to go into effect in 2016 “will not disappear” arraigo. In any event, this legal concept has been limited such that in practice few people were detained under arraigo and [their detentions were] for under 40 days.

While in 2011, 2,402 people were registered under arraigo, but last year [2014] the figure was 259. In addition, the official reported that only one single center of arraigo [detention] remains functioning. Robledo also recognized that the Mexican government “had a moment of conscience” about the excesses produced by this precautionary measure. Gómez Robledo admitted:

“We are aware of the abuses that arraigo can bring.”

UN rapporteur Luciano Hazan explained to the Mexican delegation that he did not understand the reason why arraigo was necessary to assure the investigation and why it could not be replaced by other instruments, such as preventive prison, which did not place those affected in a situation of risk of forced disappearance.

The Mexican delegation, through the head of the office of International Affairs and Attaché of the Office of the Attorney General (PGR), Guillermo Fonseca, considered that implementation of arraigo is “fundamental” in order to ensure the presence of the accused [i.e., if accused presents “flight risk”], to protect victims and to look after the investigation. He added that in cases of money laundering or kidnapping, “it [arraigo] is very useful.”

Committee members said that they found it “confusing” that in Mexico a person detained in a prison can be “disappeared”. Juan José López Ortega, a Committee member, stated that he wasn’t able to understand how a person could be disappeared if prison authorities have to register their identity and inform their families of their detention, as dictated by the UN Convention Against Forced Disappearance. …

However, the Mexican delegation had no response to López Ortega’s comment, made in the context of expanding the registry of persons disappeared in institutions and military centers, when he specifically asked what legislation, state or federal, was concerned with regulation of this aspect [expanding the registry].

Over the three hours that the session lasted, Mexican officials touted the creation and purposes of various protocols for the search for disappeared persons and victims of forced disappearance, especially protocols whose preparation involved the International Red Cross or the UN. But time and again, Committee members asked questions about specific points of their operation, and they requested statistical evidence of their supposed achievements, in addition to also asking for a copy to study in detail.

As during Monday’s session, the two parents of disappeared normal school students were present in the room. Also attending both days were María Olaya Dosal and María Guadalupe Fernández, mothers [respectively] of Alexandra, 16, and engineer José Antonio Robledo, who are also classified as disappeared.

In the Mexican government’s final statement regarding the “constructive dialogue session”, Robledo declared himself to be satisfied, and he pointed out that members of the official delegation

“leave with a clear awareness of the challenges that we have.”

Robledo also emphasized that

“at least the will of the Mexican government to move forward (on the subject of human rights) is recognized.”

In the coming days, the UN Committee will issue a report with recommendations for the Mexican government.

In the afternoon, an act of solidarity with Mexico’s disappeared took place at the Plaza of Nations opposite the United Nations Headquarters, which was attended by the four Mexican parents. Before some 60 attendees, who included activists from Swiss organizations—and exposed to the cold—the parents denounced the inefficiency and unwillingness of the Mexican government to investigate the whereabouts of their children.

On Wednesday the parents will travel to Brussels, where on Thursday they will have meetings in the European Parliament and in the European External Action Service, as well as with NGOs. Spanish original

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