New Bill to Repeal Current Federal Code of Criminal Procedure: Federal Oral Trials in Mexico Ad Portas!

30 09 2011

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
Advertisements

Actions

Information

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




%d bloggers like this: