Plenary Room. SCJN en banc sessions are held here.

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, ruled on Monday that three articles of the Organic Law of Mexico City’s Attorney General’s Office (LOPGDF, Ley Orgánica de la Procuraduría General de Justicia del Distrito Federal) unconstitutionally barred Mexicans by naturalization from becoming public prosecutors (Agentes del Ministerio Público), prosecutor’s clerks (oficial secretario del ministerio público) and prosecutor’s investigator (agente de la policía de investigación). The case was initiated as an action of unconstitutionality (acción de inconstuticionalidad) by the Procuradora General de la República, Mexico’s Attorney General.  Good job, SCJN!

The SCJN en banc was one vote short from unanimity (10-1). The transcript of Monday’s session shows that the Ministros considered the rule to be discriminatory and beyond any reasonable purpose. Ministro José Ramón Cossío Díaz reminded the Court that the constitutional test rests on whether the discrimination serves a valid purpose, and that the case at hand did not.

The Constitución Política de los Estados Unidos Mexicanos (CPEUM, Mexico’s federal constitution) does limit naturalized citizens from being appointed or elected to some public posts. Naturalized citizens in Mexico cannot be President (only Mexicans by birth, son or daughter of Mexican mother or father), congressperson, senator, cabinet member, Ministro of the SCJN, Attorney General, among other public positions. But in those cases, at least theoretically, the discrimination serves a valid purpose (and the exception is on the text of the constitution itself); extending the rule to prosecutors, their clerks and investigators does not.

The SCJN got it right once more. Naturalized citizens generally enrich and strengthen the fabric of a nation; many countries – like the United States - have a long-standing tradition of welcoming new citizens. Mexico may not be a destination for naturalization as prolific as other places yet, but it surely gets the benefit of having new citizens by will (or, as this blogger elegantly puts it, citizens by conviction); I happen to know a fine example: an extraordinary Mexican by naturalization that makes the life of Central Mexico brighter after moving there some years ago after successfully practicing law in the Midwestern United States.

Courtroom in Chihuahua, Mexico

Last week Mexican President Felipe Calderon introduced a bill in the Cámara de Diputados  repealing the current Código Federal de Procedimientos Penales (CFPP), Mexico’s Federal Criminal Procedure Code, and substituting with a new code that will allow the country to transition towards the new Criminal Justice System based in oral trials.

Article 20 of the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States, CPEUM) already mandates oral criminal trials, and the country is in a transition period.

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, already has oral, televised sessions. Some states in Mexico-like Chihuahua and Nuevo Leon-also have oral trials for criminal matters.

President Calderon’s bill, if enacted, will implement the constitutional mandate in federal criminal cases.

The proposed new CFPP really is a watershed for criminal trials, developing an accusatory, adversarial system. The fundamentals of the code include:

• Orality. The fundamental feature of the new system, as advanced by the proposed CFPP is that all hearing and proceedings must be done orally, not in writing
• No ex parte communications with the court. Until now, ex parte communications are admissible, and even expected, to make up for the lack of direct contact of the judge with the cold, written process model in force; oral trials would allow the court to know the evidence first–hand, without the need to talk to the parties individually
• Technological media will be used to record proceedings, notify parties and admit evidence. E–filing will be available at some point
• Non-prosecution cases (no ejercicio de la acción penal) can be accessed by the public. Up until now, Access to investigations is limited to the authorities, the accused, their victims and representatives
• To highlight the adversarial nature of the new system, only evidence offered by the parties can be considered by the courts. Until now, judge can introduce evidence under certain circumstances to better clarify the case
• Only licensed attorneys can represent a defendant as their defender. It may sound like an obvious proposition, but until now, both attorneys and a “trusted person” (persona de confianza) who is not authorized to practice law can defend an accused in court
• Judges can assist neither the prosecutor nor the defendant on their shortcomings. Until now, the courts can make up for the deficiencies of the defendant. If enacted, the new CFPP will treat all parties as true adults
• The new federal criminal procedure has the following stages:
  • Initial investigation, that goes from receiving the complaint until the exercise of the criminal action (ejercicio de la acción penal) with a court
  • Process per se, with the following sub–steps:
    • De control previo, (of previous control), that goes from the time when defendant is under the court’s custody, until the auto de vinculación a proceso (AVP, writ of suject to process)
    • De investigación formalizada (of formalized investigation), from notification to defendant of the AVP until expiration of the period to formulate the accusation
    • Intermediate, from the formal accusation until the writ of initiation of oral trial
    • Oral trial, that goes from the notice of initiation of oral trial until sentencing
• Second instance (appeal, etc.)
• The new code calls for 2 different judges to handle the cases:
  • The juez de control (judge of control), that resolves all provisional measures before the oral trial, and
  • The juez de juicio oral (judge of oral trial), that would control the trial hearings where evidence will be offered, and afterwards will decide on the merits of the case
  • Judges can have jurisdiction over a defendant for security reasons: if it is too risky to have a defendant in a particular area or jail, the case can be transferred to a different federal judge
  • Novelties in evidentiary issues:
    • Evidence can only be introduced at the oral trial
    • Courts are free to give weight to evidence at discretion (as long as it is justified)
    • Evidence obtained in violation of human rights is void. CFPP introduces the Mexican “fruit of the poisoned tree” theory, with limitations similar as those developed in US courts
    • Wiretaps by one of the parties to a communication are valid
    • Evidence obtained in undercover operations are legit
    • Parties can stipulate on non–controverted probatory issues (acuerdos probatorios)
    • Sentence is imposed after a post–conviction hearing
    • Legal entities (corporations, etc.) would be criminally liable for actions of its members
    • The new accusatory, oral system would require more court time for each case; the system could not work out without effective options to terminate proceedings in an anticipated way, without the need to go through all steps of the process. The new CFPPwould include the following options to achieve this goal:
      • Reparation agreement: in some cases, the defendant may execute a reparation agreement with the victim that includes undoing the wrong, and upon the court’s authorization, could avoid criminal liability
      • Simplified process: the defendant, upon admission of guilt and guaranteeing reparations for the victim, can get its punishment reduced up to 25%. It only applies for crimes with terms of imprisonment of no more than 4 years, for crimes of low social impact.
      • Conditional suspension of the process: another option for the defendant, subject to the victim’s approval, admission of guilt and requiring guarantee of reparation, conditional suspension of the process is available for most crimes with a punishment of more than 4 years of prison; this option suspends the process between 1-3 years. If the defendant is successful in following–up with the suspension for the period determined by the court, his case will be dismissed with prejudice, and the criminal action would extinguish; in this case, civil liability may subsist regardless
      • Abbreviated process is available upon request of the prosecution when defendant admits guilt, in all crimes that do not qualify for simplified process or conditional suspension of the process. Victim’s approval is required. The incentive for the defendant: up to 25% of punishment can be reduced
      • Victims are granted many rights, some already in the current CFPP, some also in the CPEUM:
        • Victims would be able to exercise a private criminal action (acción penal por particulares), fundamentally changing the perennial monopoly of the criminal action historically held by prosecutors
        • They can oppose to the simplified process and the abbreviated process
        • Non–Mexican victims will get assistance in immigration matters

Less "FACE" and more "BOOK." Gandhi Bookstore, Mexico.

Librerías Gandhi is a bookstore chain in Mexico, famous for their good service and smart advertising campaigns (as illustrated by the image below). I loved going to their original location in Coyoacán while in law school in Mexico City. Since 2008, Gandhi cannot, by law, offer discounts in the price of most books, or charge more than the price fixed by editors or importers.

Articles 22 and 24 of the Ley de Fomento para la Lectura y el Libro (Law that Promotes Reading and Books) orders editors and importers to set a unique price for each not only acceptable, but mandatory. And sellers cannot charge more for the book, ever. And cannot sell for less either, within the first 18 months of publication. (The law provides for an exception: it is OK to give a discount if the buyer is the government, a public library or an educational institution.)

The rationally behind the law is that if let open to the market forces, supply and demand would only benefit big bookstores—normally found at big cities—in detriment of small towns and small book stores. The ultimate result should be, according to the law, to ease access to book ownership to everybody. None of that has happened so far, as the invisible hand of the market is known for its stubbornness.

COSTCO Mexico also sells books (although it is not its primary business). COSTCO, we all know, bases its sales model in offering discounted prices to their members, and resented the legal restrain on moving down the prices of books sold at their stores. COSTCO MX challenged the law was initiated via an Amparo trial, that was ultimately decided by the Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court.

The SCJN ruled today in a divided 6-5 majority decision that a law requiring book editors and importers fixing a unique price for books neither promotes monopolies (which are prohibited by the Constitution) nor violates fundamental rights of commerce and equality, according to a SCJN’s press release. Or read the court transcript.

Weird law. But the issue before the SCJN was whether it promoted a monopoly, and the answer was in the negative. So be known: at least in Mexico, strange ≠ unconstitutional.

SCJN: OK for Civilian Ct. to Try Members of the Military for Crimes vs. Civilians

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, decided today that cases involving violations of human rights of civilians by members of the military can be tried in civilian courts—and not in military courts, as has been the practice until now. Well done, SCJN!

The SCJN specifically stated that the change in judiciary posture was made in execution and in deference to the Inter–American Court of Human Rights (IACHR)’ 2009 recommendation on the case of Mr. Rosendo Radilla. (Mr. Radilla was a local activist in Guerrero on the 1970s. He was arrested at a military checkpoint in 1974 and was never seen again.)

Article 57of the Code of Military Justice indicates on its previous to last paragraph that crimes involving both civilians and members of the military–like the Radilla case, and like the killing of civilians in military checkpoints in 2011, military members should be tried in military court.

On November 29, 2009, the Inter-American Court ordered Mexico to implement Constitutional and legislative reforms in matters of military jurisdiction, including the amendment of the above–mentioned article 57; President Felipe Calderon introduced a bill on the Mexican Senate in October of 2010, to comply with international treaties and the recommendation of the Inter-American Court, but Congress has failed to pass the amendments. The SCJN stood up to the plate to conform with the international tribunal’s decision.

Ministro Jose Ramón Cossío Díaz defined that the heart of the Inter–American Court’s sentence asks that cases of violations of human rights of civilians by members of the military should be tried in civilian–and not military–courts.

The SCJN’s decision is correct at least by 3 reasons:

1. It reiterates Mexico’s respect for int’l law, int’l human rights, and the weight of sentences by int’l tribunals. This is congruent and consistent with Mexico´s own position with other countries in similar issues, like its stance with the United States’s violation of the Vienna Convention on Consular Relations and of the International Court of Justice judgment regarding 52 Mexican nationals on death row in the US, as exemplified last week before and after the execution of Humberto Leal in Huntsville, TX (violations by geopolitical divisions of a country are imputed to the country itself) (The Washington Post published an editorial urging the US Congress to act on the issue).
2. It gives transparency to criminal proceedings involving members of the military and civilian victims by taking the cases out of the barracks, and into the judiciary branch.
3. The resolution hopefully will narrow discretion of the military in its day-to-day operations in civilian life, in the context of the war against organized crime declared by President Calderon.

Service of process: NOT by mail in MX

Or as Associate Professor Charles B. Campbell (Faulkner University) says—writes—: doing it No Sirve (literally, “doesn’t work”).

One common daunting legal task for the U.S. practitioner is to have to serve process of a lawsuit in Mexico. The natural temptation for the American lawyer is to try to accomplish it by using certified mail or courier. But that is NOT a valid method for Mexican law purposes.

Mexico and the United States are signatories to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (commonly referred as the Hague Service Convention). This international treaty “allows service of judicial documents from one signatory state to another without use of consular and diplomatic channels,” in words of Wikipedia, but rather through the Central Authority designated by each signatory for that purpose.

The Hague Service Convention does provide for alternative methods for service of legal documents, but Mexico objected to them. Professor Campbell pointed out a mistranslation of the English courtesy copy of Mexico’s objection as the source of confusion for U.S. litigators in his January of 2010 paper “No Sirve: The Invalidity of Service of Process Abroad by Mail or Private Process Server on Parties in Mexico Under the Hague Service Convention.”

This year, Mexico changed  the language of his declaration to make its opposition to the alternative methods clearer. Professor Campbell reported it in a new article entitled “No Sirve Continued: Mexico Modifies Its Declarations to the Hague Service Convention.”

I personally always understood Mexico’s original objection as unequivocally rejecting the usage of alternate methods, but I of course read the Convention text in Spanish-my first language, so the fact actually strengths Professor Campbell’s point.

How to accomplish service of process then, if not by certified mail? Via Mexico’sSecretaría de Relaciones Exteriores (Ministry of Foreign Affairs). The Secretary of State has a link with information on the issue.

And practitioners: if your client was served with process in Mexico not via the central authority, oppose it.

Great articles by professor Campbell. Gracias, Maestro.