Mexico’s SCJN: Unconstitutional and Discriminatory to Exclude Naturalized Citizens from being Prosecutors, Clerks and Investigators in Mexico City

10 01 2012
Plenary Room. SCJN en banc sessions are held here.

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.

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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




Mexico’s Supreme Court: Members of the Military Can Be Tried in Civilian Courts for Crimes that Violate Human Rights of Civilians (Not in Military Court)

12 07 2011

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.




SCJN Says No to Amparo Trial as Avenue to Challenge Constitutional Amendments

30 03 2011

The Suprema Corte de Justicia de la Nacion, Mexico's Highest Court, in Plenary Session

Amendments to the Constitución Política de los Estados Unidos Mexicanos (Political Constitution of the Mexican United States, MXConst) cannot be challenged through Amparo trials, the Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, ruled last March 28th.

Last Monday’s SCJN session was a continuation of their 01.31.11 meeting that ended in a 5-5 vote draw. Ministro Jorge Mario Pardo Rebolledo, the Court’s newest justice, had the uneasy task of starting his rookie year tipping the scale (although at the end there were 7 votes for the proposed denial, as the transcript of the session indicates).

The case at hand was a revision by the SCJN of an Amparo trial that had been dismissed by a lower federal court where private citizens lead by Federico Reyes Heroles, Head of Transparencia Mexicana, Mexico´s Chapter of Transparency International, argued that a 1997 constitutional reform prohibiting access to private individuals to buy electoral publicity, which has now to be bought by political parties only through Mexico’s Instituto Federal Electoral (Federal Electoral Institute, IFE) violated the fundamental right to free [political] speech .

Jorge Castañeda (fmr. Minister of Foreign Affairs); attorney Alonso Aguilar Zinser and Federico Reyes Heroles (president of Transparencia Mexicana) at the Supreme Court

An Amparo trial (as Wikipedia explains it) is a Mexican federal trial where a complainant alleges violation of her constitutional rights by an authority. Almost any Mexican authority can be sued via Amparo. Even Congress. (For more on Amparo trial, see my brief PowerPoint Presentation.)

The issue was whether Amparo trial was the proper venue to challenge the constitutionality of a constitutional amendment. In other words: could Federal courts entertain a trial where a modification to the MXConst itself was questioned.

The SCJN sided with the lower court, saying that the Amparo trial is not the proper venue, mainly because Amparo sentences have no universal, erga omnes effects, but only benefit the plaintiffs that brought it (this characteristic is known as the relativity principle or Otero Formula, first proposed by 19-Century jurist Mariano Otero, the Father of the Amparo trial (read a good article about it by Mexican professor Juan Real Ledesma).

Jorge Castañeda, former Minister of Foreign Affairs of Mexico and one of the plaintiffs in the original case, was understandably disappointed. Mexicans have no right to hire electoral publicity, and since the new rule is part of the Constitution, have no means of challenging it either. On a broader level, individuals have no right either to challenge any amendment to the Constitution, even if they contradict or nullify fundamental rights within it (as the Court suggested in a non–binding jurisprudence precedent of 2002 on the issue of the crime of illicit enrichment). The SCJN did not ruled on the substance of the Amparo complaint.

Ministro José Ramón Cossío Díaz voted for allowing the review of the case via Amparo, and announced a dissenting opinion (or as is said in Mexico, a voto particular); I look forward to reading the opinion of the SCJN most advanced scholar (before joining the Court, he was the dean of the school of law of ITAM).





Mexico’s Supreme Court Has Its 11th Member (Finally)

11 02 2011
Jorge Mario Pardo Rebolledo

Jorge Mario Pardo Rebolledo, Newly Elected SCJN's Ministro

The Suprema Corte de Justicia de la Nación (SCJN), Mexico’s highest court, has been very active lately. And they finally have a replacement for late Ministro José de Jesús Gudiño Pelayo (a Ministro is Mexico’s equivalent to a SCOTUS’ Justice). This Thursday, the Senado de la República (almost no need to translate it as Senate) picked the 11th and newest Supreme Court Ministro, Mr. Jorge Mario Pardo Rebolledo. Mr. Pardo Rebolledo has been a Magistrado de Tribunal Colegiado de Circuito (in U.S. terms, a Federal Circuit Judge).

The lack of its 11th member drove the Supreme Court to several tied votes both in Plenary sessions (5-5 vote) and in the First Chamber (2-2 vote), in which Ministro Gudiño Pelayo was a member. Mexico’s Supreme Court is composed of 11 Ministros, which hear cases in Plenary Sessions (all 11 included) or in one of two Chambers (composed of 5 Ministros each; the Ministro Presidente (Mexico’s counterpart to the SCOTUS Chief Justice) is not part of either Chamber.

(In the case of the Plenary sessions, the newly elected Ministro Presidente of the SCJN,  Juan Silva Mesa, refused to issue a casting vote as a way of pressuring the Executive and Legislative branches to name a new Ministro; the most noticeable case was on the validity of challenging amendments to the Constitution “if and when unconstitutional on themselves.”)

Mexico’s method for designating new members of the Supreme Court shows a fine balance of powers, described with precision in article 96 of the Constitución Política de los Estados Mexicanos (CPEUM, the Mexican Federal Constitution): the Executive proposes 3 candidates to the Senate, who can choose 1 –by a qualified 2/3 super-majority) or reject all 3. If the Senate fails to choose 1 or reject all 3 candidates within 30 days after receiving the proposal, the President can freely pick 1 among the 3.

If the Senate rejects the first 3 candidates, the President then proposes 3 new ones, and the Senate has the same 2 options, but if fails to pick 1, the Executive can freely name it among the candidates included on the second list as new Ministro.

Ministro Gudiño Pelayo passed away on 09.19.10 while vacationing in London. Later in December, President Calderon sent an all-female candidate proposal to the Senate, who rejected them all in due course. President Calderon sent a new proposal on January to the Senate (the new proposal was composed of 3 male judges); had they failed to pick a new Ministro this time, Calderon would have had free hands to choose 1 among the second 3 candidates.

Now with a full Court, I look forward to see the discussion and vote on whether amendments to the Constitution can be unconstitutional-a matter of the chicken or the egg.

[Check also recent decisions of the SCJN and a Circuit Court, in issues ranging from taxes on cashiers’ checks considered as cash, independent right of non-cohabitant parents to exercise parental rights, constitutionality of considering lawyers better than public accountants in the Armed Forces (not really), blessing for seizure of property for non-cooperative tax payers and condoning fines,  and in the case of a Circuit Court, the rejection on overturning the 60 years sentence on French citizen Florence Cassez]





Arrest Warrant v. Mexican Lawmaker Julio Cesar Godoy-Toscano Can Now Be Executed.

29 12 2010

Mexico’s Lower Chamber of Congress,  the Cámara de Diputados, voted overwhelmingly (384-2-21) last Dec. 14 to strip Mexican Lawmaker Julio Cesar Godoy Toscano from the Constitutional Protection from prosecution. Godoy-Toscano has an arrest warrant for his alleged commission of drug offenses, money laundering and organized crime (see the note by CNN) to. The vote allows the Procuraduría General de la República (the Attorney General’s Office) to execute the warrant issued by the federal court.

The case is not exempt from controversy and alleged political implications, but this step will allow the courts and not the press settle it down… provided Godoy-Toscano is found (he previously succeeded in evading arrest for 15 months, before swearing-in as lawmaker and enjoying the Constitutional protection that was recently removed from him).





One BIG Step Gets All Closer Toward Class Actions in Mexico

6 10 2010

 

SCtMX

The Suprema Corte de Justicia, Mexico's highest court and head of the Federal Judiciary. Federal courts would have exclusive jurisdiction for class actions in MX.

 

Special thanks to  good  friend & colleague Cecilia Ibarra  for bringing the topic to my attention


42 words. Congress in Mexico amended article 17 of the Federal Constitution (CPEUM, Constitución Política de los Estados Unidos Mexicanos) by adding just 42 words. But the — hopefully positive — impact can be enormous: it sets the stage for the introduction of class actions — denominated acciones colectivas or collective actions, per its literal translation — in federal courts of the country.

Class actions — or Collective actions are “lawsuit[s] filed by one or more people on behalf of themselves and a larger group of people “who are similarly situated,”” as defined by LAW.COM Dictionary.

The amendment, published in the Official Gazette (DOF, Diario Oficial de la Federación) on July 29, 2010, entered into force the day after, and gives Congress one year from the latter date to enact implementing legislation that make class actions practicable in Mexico. The added paragraph reads:

El Congreso de la Unión expedirá las leyes que regulen las acciones colectivas. Tales leyes determinarán las materias de aplicación, los procedimientos judiciales y los mecanismos de reparación del daño. Los jueces federales conocerán de forma exclusiva sobre estos procedimientos y mecanismos.

[Free translation: “Congress will pass laws regulating collective actions. Such laws will determine the subject–matter in which collective actions will apply, the court proceedings and mechanisms for payment of damages. Federal judges will have exclusive jurisdiction over this proceedings and mechanisms.”]

The constitutional amendment gives exclusive jurisdiction for class actions to the federal judiciary. Main reasons could be uniformity in the process, and the fact that the Federal Judiciary Branch has by far more resources than any or all of the local courts.

The practice of law in Mexico may change with a new niche. Lawyers in MX will probably turn to their North–of–the–Border colleagues for inspiration and example. Implementing legislation would probably touch on attorney’s fees and related issues; I would not be surprised if they even go to the detail of capping contingency fees.

A probable side effect of the change is that American courts may be more willing to dismiss a case before them based in forum non conveniens motions by defendants, now that Mexican courts would be able to offer an additional remedy that will be familiar to the U.S. judges — even though not applicable to the instant case entertained by the American court.

Success or failure of class actions in Mexico will depend in good measure on the amendments to the Federal Code of Civil Procedure and all secondary legislation by Congress. One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.

New opportunities will come for plaintiffs and attorneys. We will keep an eye on it.

To think list:

  • Congress decided to vest exclusive jurisdiction for class actions in Mexico on Federal judges — presumably District Judges. States are purposely left out, probably for uniformity’s sake and better resources by the Federal Judiciary.
  • The practice of law in Mexico may change with a new practice niche.
  • Will MX Congress mirror US Class Action legislation when implementing the constitutional amendment? If so, which one?
  • One of the main challenges for the Mexican judiciary on the issue will be to have an effective case management infrastructure to deal with class actions with potentially thousand of case members acting in a case.