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
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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.




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).





Novartis under Corruption Probe in Mexico

10 11 2010

IMSS, Mexico's centralized social security entity

 

Novartis Headquarters in Basel, Switzerland

The federal government of Mexico launched a criminal investigation for alleged corrupt practices of pharmaceutical Novartis. According to the note,

 

Mexican TV network Televisa on its Tuesday evening news broadcast presented an audio recording of an IMSS official negotiating the purchase of $80 million pesos ($6.5 million) worth of pharmaceuticals with Rafael Castro, Novartis’ laboratory director.

Novartis is one of the principal vendors for the Instituto Mexicano del Seguro Social (IMSS, Mexican Social Security Institute), Latin America’s biggest centralized social security agency. IMSS runs a network of public hospitals, with more than 30,000 beds.

Would the U.S. Department of Justice have jurisdiction to investigate probable violations to the Foreign Corrupt Practices Act? The act has long reach, and the current White House administration views “widespread corruption as a violation of basic human rights.” This is just a question; let’s the FCPA experts answer it.