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.

Amendments to Increase Competition in Mexico Become Law

11 05 2011
President Calderon signs the amendments to the Competition Law, Federal Penal Code and Tax Code

President Calderon signs the amendments to the Competition Law, Federal Penal Code and Tax Code

Mexico published an amendment to its competition law (Ley de Competencia Económica), the Federal Penal Code (Código Penal Federal) and the Fiscal Code (Código Fiscal de la Federación) that should that will give more tooth to the main regulatory agency, the Comisión Federal de Comptenecia (CFC) and increase penalties for corporations and individuals engaging in monopolistic or anticompetitive practices.

Among other changes, the amendments provide for Federal District and Appeals Courts  specialized in competence and anti-trust issues (article 39). These specialized tribunals are yet to be created, but is a positive step towards perfecting the system.

In recent years, the CFC has struggled to control a giant financial actor of the Mexican economy: Forbe’s purportedly richest man in the world, Carlos Slim and his realm of telecommunication companies: TELMEX, TELCEL and América Móvil SAB.

The Wall Street Journal reported this week what they saw as an unheard of triple challenge to Mr. Slim from the Mexican government:

  1. The Mexican Supreme Court (Suprema Corte de Justicia de la Nación) ruled last week that rulings of the CFC should be obeyed even in an appeal was pending or sub judice.
  2. The CFC fined Slim’s cell carrier in Mexico, TELCEL, with a $1 billion dollars fine.
  3. The final punch came via yesterday’s amendments.

Earlier this year, TELCEL/TELMEX started a press war with TV Azteca and Televisa, Mexico’s biggest television networks.

The modifications on the law seem positive. We will have to wait to see for their implementation and the delicate dance needed to execute with gargantuan actors as those involved in the current challenges to competence in Mexico.

A Paper on Mex.Imm.Law by 2 NY Professors

21 03 2011
Mexico Institute

From the Mexico Institute at the Wilson Center's webpage

This month, two professors at the University at Albany-SUNY published a paper analyzing Mexico’s immigration laws, with the title “Understanding Mexico’s Changing Immigration Laws.” The research was sponsored by the Mexico Institute of the Wilson Center,

The piece is highly critical of Mexico’s approach to immigration in its own territory, vis-à-vis its posture and demands towards the United States regarding how Mexican nationals generally, and those without legal status particularly, are treated in the U.S. It also details the effect that such approach had on the U.S. comprehensive immigration reform effort.

The authors highlight what they perceive as shortcomings of the  Ley General de Población (General Law of Population) of 1974 and the Instituto Nacional de Migración (Nat’l Immigration Institute, INM).

The Mexican government and Congress are currently working on a comprehensive immigration reform in Mexico. The Cámara de Senadores (Mexican Senate) should eventually vote on a bill proposal introduced by 10 Senators from all 3 main political parties to bring Mexican immigration law to day.

Beyond that effort, President Calderón enacted a Law for Refugees last January, and the INM has a new Manual since last year that better approaches immigration to Mexico. Both efforts are described in the Wilson Center paper. Also, the INM’s webpage is more transparent, relevant information is easily available, and pending cases can be checked online.

Understanding Mexico’s Changing Immigration Laws” provides facts and opinions, but neither are too sophisticated in legal analysis. I would have liked to see a more in-depth study of the elements and ingredients of the legal framework itself, but maybe it is just me. As an Assistant Chief Counsel of the U.S. Immigration and Custom Enforcement agency told me in a conference for a bond redetermination hearing in immigration proceedings with the immigration court told me after hearing my “wishes” in the particular case: and I wish I had another house and could retire. All in due course, I replied.

Hat tip: jjr, again.

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]