MEXICO´S CRIMINAL PROCEDURE REFORM. - The implementation of the accusatory criminal system in México.
Regarding México’s criminal justice system, the most remote precedent in
modern history can be traced back to the Constitution of 1857, weather it established
the foundations of the criminal system is still in discussion, it did open the
door to allow for secondary legislation, like the criminal jury law of 1869 and
the code for criminal procedures of 1880, to set the profile of the criminal
justice system as an inquisitive one. The creation of the Public Ministry
figure, so clearly distinguished in modern Mexican criminal system has its
origins as a criminal prosecutor, in charge of accusations in such laws.
After México’s independence, a Congress was summoned to write a new Constitution,
the result was the promulgation of the 1917 Constitution, unique in its
humanistic view of law. This Constitution established some minor changes to the
criminal system, mostly procedural warranties, like publicity in trials. The
Public Ministry institution remained mostly unchanged but had its legal
foundations situated in article 21st of the Mexican Constitution.
The inquisitive model remained mainstream in the criminal justice system.
Mexico´s transition towards an accusatory trial system began as a result
of international agreements, which rendered as a result several reform
propositions. The first opportunity came in 1993, but
several attempts where made later in 1996, 1999, 2000, 2001, 2004 and 2005, when
finally a proper reform was established.
Elaborating on the previous propositions, in 1993, as an attempt to
safeguard the victims rights, a B incise was added to the 20th
Constitutional article, additionally, an amendment to the 21st
Constitutional article permitted the victim to challenge the resolution of now exercising
judicial action by the Public Ministry (prosecutor in the Mexican system).
On the later attempts, the 2004 one stands out, primarily because it was
Mexico´s own Supreme Court (Suprema Corte de Justicia de la Nación) who denied
the possibility to transform the criminal system from inquisitive to accusatory,
by naming a group of magistrates to elaborate a document called Commission for
the study of criminal reform. This document contained allegations from the
likes “arguments lacking foundation”, “Inexact or exaggerated perceptions”, and
such, regarding the proposal of the reform initiative.
The moment of truth came on June 18 2008, when a Constitutional reform,
based on the same axis as to establish an accusatory criminal system in Mexican
law was passed by the Legislative Chamber, the commented amendment also established
a vacatio legis of 8 years to fully
implement the changes to the criminal system in the 31 states of the Mexican
Federation.
The main reason to emigrate from a more traditional inquisitive system
to an accusatory one is based on the fact that Mexican criminal justice was not
rendering appropriate results, several problems had raised from the outdated
procedure, that mostly involved secrecy, excessive use of paper to document
every word and petition to the court, as well as resolutions, the universal imposition
of preventive imprisonment, and other issues had made clear the point that the Mexican
criminal system was on the verge of a breakdown.
The new model, though different from the common law, is based on an
accusatory model, which privileges the warranties of the accused and the
victim, setting both parts in an equal standpoint from which they can litigate.
The separation of the accusatory institution – Public Ministry – and the
judge is now evident, whereas these differences were mostly imperceptible in
the older days.
The new system is based on principles, established by the 20th
Constitutional article, this allows for a more dynamic model, which hopes to
eliminate the tardiness that ruled in the old system days.
The principles that rule the accusatory system are: publicity, contradiction,
concentration, continuity and “inmediación” that could be translated as contiguity,
as it refers to the proximity between the parts and the judge in the process.
The criminal process under the accusatory system is divided into
different stages. The first stage consists of the investigation, which is lead
on by the prosecutor, called “Fiscal” or Public Ministry Agent. He is in charge
of establishing whether an event has occurred, that is contrary to law, and the
probable responsibility of an individual or group of individuals. For this he will
rely on the capabilities of the investigative police, whom will be under his
command to gather elements of proof, commonly referred to in the common law
system as evidence.
Once the Public Ministry has gathered enough elements of proof, he will
summon who he thinks is responsible of the crime, in front of a judge,
appointed Control Judge. The Public Ministry will present a plea so the person
whom he thinks is responsible for the crime will be formerly appointed as such,
and then he proceeds to “tie him to the process”.
In this stage the appointed criminal can present his own elements of
proof to undermine what the prosecutor states, primarily this elements will be
directed towards the lack of capability to have committed the crime, as in
objective evidence, such as not being in the place where the crime occurred.
Once the Control Judge appoints the accused person as tied to the
process, the prosecutor asks for a term to finish his investigation, and the
imposition of a preventive measure, which, depending on the crime could go from
an ambulatory restriction to preventive imprisonment.
Once the term granted to the prosecutor to finalize his investigation is
exhausted, he must present a formal accusation if he wishes to continue with
the trial, this is done by a written petition, which should contain several
specific data about the accused individual, the probable crime he is appointed
with, and the circumstances of his involvement. This opens the second stage of
the process, named preparation stage or intermediary stage. The purpose of this
stage is to establish which facts is the trial versed upon, specifically, the
elements of proof or evidences that will be presented in trial undergo an
exhaustive examination, to determine whether they are or aren’t legal. Also a
figure named “evidence agreements” takes place, this consists on agreements on
both parties that one or several particular elements of evidence do not have to
be proven in court, since they are notorious, or do not represent a substantial
part of the dispute. Some examples could be, whether a person is dead or not,
if it rained on a particular day, or such.
Once the evidence has been purified, in a figure of speech, the Control
Judge who presides upon this stage determines the parts are ready for trial and
appoints a decision called “Opened Court”, which states a term for the criminal
judgment to take place, this is then informed to the 3 judges whom will form a
tribunal to judge the criminal case in the next stage.
The third stage is denominated Oral Judgment; it requires 3 Judges to
conform a tribunal, and the presence of the prosecutor – Public Ministry – the
victim if required by law, and of the accused and his defense.
It starts in a similar way to common law criminal trials, save the
absence of the jury, which is not required by Mexican law. First the prosecutor
makes an opening statement, in it, he will try to establish a factical theory
which explains how the crime was committed, the participation in it by the
accused, and how the elements of proof, once shown in court will tie him to the
crime. Then the defense has a chance to give an opening statement, in the
opposite course, trying to establish the absence of the crime or the impossibility
of participation by his client. The second part of the trial is composed of the
interrogations and counter interrogations of the witnesses, and the production
of material evidence, this is pretty much the same as the common law system.
Finally there´s is a closing statement, first by the prosecutor and later by
the defense, the object of this closing statement is to dismiss the evidence
presented by the counterpart and to tie your own evidence to the factical
proposition first exposed during the opening.
After all parts have been heard, the tribunal withdraws to a separate
room to deliberate upon the verdict, to determine whether the accused is guilty
or not.
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