Monday, April 14, 2008

Constitutional Amendments & Mexican Penal Code Reforms

By Dr. José Enrique Vallarta Rodríguez

Mexico has experienced nationwide crises of insecurity and a lack of public safety in recent years, caused in large part by the runaway growth in organized crime, which too has brought about the de facto militarization of some Mexican cities.  The acts of the criminals, plus those of other culprits – including corrupt officials, have caused deep social discontent and, as a result, a new criminal law has been passed.

Multifaceted, the new law seeks to reduce indices of insecurity, and to make the Mexican criminal and penal systems more effective, however this carries with it an added cost due to restrictions on individual liberties and guarantees.  And, while the reforms have undoubtedly brought about improvements, they must not setback advances gained on matters of human rights.

The following are some of the advancements and setbacks connected with the reformed penal code.

Advances

·         The system of rights.  These are included in amendments to Article 20 of the Mexican Constitution, which call for the implementation of a system of guarantees that respect the rights of both the victim and the accused.  They require charges to be filed by government attorneys, insure the right of defense to the accused, and stipulate that a judge must make relevant rulings.  They include issues related to accusations and the presumption of innocence, managed by the principles of publicity, contradiction, consolidation, continuity and surroundings characterized through accusatory instruments and oral pleadings.  Calling for transparency while simplifying and streamlining processes, they also guarantee a direct relationship between the judge and the prosecution as well as the defense.

·         Control judges.  A counterbalance to the actions of prosecutors.  According to reforms to Article 16 of the Constitution, the judiciary will include control judges who will rule immediately on precautionary requests, preventive injunctions, and official investigation technicalities that require judicial control, guaranteeing the rights of the accused and those of victims or the injured.  And there must be a reliable record of all communications between judges, prosecuting attorneys and other involved officials.

·         The creation of a National Public Security System.  Constitutional Article 21 decrees that federal, state and municipal government attorneys and police forces will form a National Public Security System.  At a minimum, this will be based on: a) certification of police officers and employees; b) establishing personal and criminalist databases for public security institutions; c) crime prevention policies; d) evaluations with community participation; and e) security funding by the states and municipalities.

Reverses

·         Bail and bonds.  This is one of the most controversial requirements of this constitutional reform on criminal process matters.  As approved by the Chamber of Deputies, amendments to Article 16 (paragraph seven), with respect to organized crime, authorize judicial officials when requested by the Government Attorney’s Office to grant bail to a person for a period not exceeding 40 days, provided that it may be necessary for the success of the investigation, the protection of people or goods, or when there are grounds to believe the accused might be denied legal process.  The 40 days can be extended when and if the government attorney provides cause however the total period cannot exceed 80 days.

The preceding is in violation of a person’s constitutional rights, insofar as a person would be given up to 80 days without charges being filed, a judicial ruling, or legal certainty in a kind of preventative incarceration.  Since 2002, the United Nations has considered these types of preventative actions arbitrary detentions, and the UN has recommended that Mexico should end the practice.

·         Organized crime.  This is the justification for the promoters of the reforms.  Yet while the subject is certainly of major importance, and one of the matters complained about most by the people of Mexico, this does not justify the costs that might be paid with respect to violations of human rights.

·         Police.  In these constitutional amendments, Article 21 assigns the responsibility and duties for criminal investigations to the Offices of Government Attorneys and the police.  This while Article 123 (item XIII) stipulates that the military, foreign service personnel, Office of Government Attorneys’ agents, experts and members of police institutions will be governed by their own laws.  The generalized distrust in the honesty of police has given Mexicans pause and generated reasonable doubts.  Mexicans interpret this amendment as a concession that gives even more independence and autonomy to the police and police agencies, which are already frightening.

As Mexicans, we now have a criminal law that has sacrificed fundamental rights for security.  Time will tell if this works and is suitable to our needs as a society and a country.

—————————

José Enrique Vallarta Rodríguez, a MexiData.info guest columnist, received his doctorate in Mexican Electoral Law from the National Autonomous University of Mexico.  Mexico City-based, he has worked for the Federal Electoral Institute.

Translation MexiData.info