Perspectives on the Right to a Fair Trial(1)
(Mexico)
by Miguel Sarre(2) and Fernando Arturo Figueroa(3)
Preview
Since legally and de facto the pre-trial investigation known as averiguación previa is so important, and the right to a fair trial is absolutely misunderstood without an analysis of it, it is worth noting that this stage prior to the judicial proceeding, is actually more important -- in the way it influences sentencing -- than the judicial proceeding itself. Nevertheless, this situation is generally unknown not only to those outside Mexico, but also to many Mexican lawyers and academics.(4)
The averiguación previa is conducted under the authority of the public prosecutor, the Minis te
rio Público, which belongs to the Federal or State Attorney General's Office and is a part of the
executive branch. In contrast with similar systems, this stage not only has the purpose of
deciding whether or not there is probable cause, but, as has been said, it is decisive in the
conviction, as may be read in article 286 of the Code of Penal Procedure for the Federal District:
"Procedural acts conducted by the Ministerio Público and by the Judicial Police will have
absolute proof value only when they follow the rules set out in this criminal code." The doctrine
of the Supreme Court has even gone beyond such a disposition in dealing with the confession of
the accused. It states that:
According to the immediacy principle, except for the withdrawal of the previous
confession in those cases permitted by law, earlier statements by the accused (before the
public prosecutor), which are considered to have been obtained without sufficient time
for counseling or defensive mediation, shall prevail over the latter ones (before the
judge).(5)
It is through the above mentioned compulsory decision of the Supreme Court that the pre-trial confession not only has the same relevance as that produced during trial, but rather, even more, since the latter is generally not considered for the record. This prevails in spite of the fact that recent amendments have deprived the judicial police from extracting a confession from the accused. This is so because the Ministerio Público may now constitutionally obtain a confession, and this may occur with or without the previous assistance of the police, who hold the detainee in custody. This displays the inverse relation between the weight attached to the evidence and the guarantees available, so that when the accused is presented before the judge and is in a position to exercise them, they are rendered useless.
It must also be mentioned that recent legal reforms have incorporated the right to be assisted by a defence lawyer or a defence counselor during the accused's declaration at the pre-trial stage.(6) This, however, takes place in the absence of a judge who is meant to be over and above the contending parties; in such a context there is no real possibility of defence, since the authority at such time and place is held by the public prosecutor without any intervention from the judge.(7)
Even though in practice it has been proven that, at this stage and by definition, the public prosecutor is not and cannot be impartial,(8) the Ministerio Pùblico is considered an institution of good faith and, as such, it is acknowledged that it may be impartial and neutral during the pre-trial stage. The following is a widespread theory to explain how it is possible for the public prosecutor to indict the accused while still remaining neutral: upon indictment, the figure of the prosecutor in charge of pre-trial undergoes some kind of transformation (a sort of metamorphosis), through which he becomes partial in order to contend before the judge. There is, however, no explanation for the fact that -- legally and de facto -- each public prosecutor answers to the Federal or State Attorney General, whose rules follow the French model: Le Ministère Public est un et indivisible.(9) The fact of the matter is that the public prosecutor is necessarily partial during both the pre-trial and trial stages.
The averiguación previa may be carried out with or without detention. In the first case, the place of detention is under the public prosecutor's control, and lasts from 48 to 96 hours. When the accused is free the only restriction relates to the period of time during which the action may be enforced. Thus, the case may at any time be reinstated after a period of months or even years, which is contrary to legal security.
In addition to the important role of the executive branch in the administration of justice through the averiguación pre via, once the trial is over, that same branch again takes over and, through the mechanism of administrative adjustment of sentences, decides the real term of the sanction imposed. Such a term may be reduced by as much as 60%, or even more. This post trial stage is based on discretionary decisions taken within very uncertain legal bounds.
A. Treatment during detention, prior to, and during trial
As was pointed out before, it is during the averiguación previa with pre-trial detention that the accused is more vulnerable to torture, or cruel, inhuman, and degrading treatment, since there is no distinction between the authority responsible for the investigation and the one responsible for custody. The judicial police, who actually control detainees, answers to the Federal or State Attorneys General's Office and not to the judiciary as its name suggests.
Nonetheless, the practice of torture has decreased over the last five years, due to the fact that non-governmental organizations and the Mexican Ombudsman (National and State Commissions of Human Rights) have dealt with and enforced the legal procedures against the public agents responsible, making them accountable for these violations of human rights.
The accused has the constitutional right to remain silent,(10) thus there is no legal sanction attached to the accused's refusal to speak to any authorities. This also applies in the pre-trial stage, according to a specific constitutional provision.(11) This right somehow extends to the detainee's wife, husband, relatives, or close friends, in view of the fact that the Federal Penal Code and most state codes establish that these persons do not commit an offense should they conceal the offender and/or not cooperate with the authorities pursuing the investigation of the crime. As to informal sanctions applied in the case when the detainee chooses to remain silent, it is necessary to make a distinction between the police, the investigating authorities (Ministerio Público), and the judges. The strongest pressure upon the accused is exerted by police. If the accused refuses to speak, he may then be verbally compelled and threats directed at him or his relatives. The detainee may even be subjected to torture.(12) The public prosecutors themselves seldom use physical violence to compel the accused to confess, and when they do, it is in the way of verbal aggression and threats.
It is compulsory for the Ministerio Público to notify the defendant of his right to remain silent; the fulfilment of this duty relies on the public prosecutor's behavior, the presence and participation of the defender, and the psychological conditions of the accused. Obviously, the judicial police hardly inform the accused of his right to remain silent. It is usually the judge who provides this information. When the accused is not in detention he is rarely subjected to any forms of coercion.
When the accused exercises the right to remain silent there is no legal sanction for such silence. As has been said before, the confession lacks value when taken in the absence of a counselor. This means that the counselor must be present at the time of the inquiry, but only when the formal written recording takes place -- not necessarily before or after. There is an unwritten rule according to which the accused under detention shall remain without counsel's assistance, up to the moment of his first declaration. This is why the Court in the above cited precedent, takes for granted the fact that no counsel assistance was provided before the initial deposition. The result of this is that when the accused detainee makes a declaration in the presence and even with the advice of his lawyer (which takes place before the public prosecutor and often in the company of police) he may still be subject to the coercion experienced before the lawyer's arrival, and fearful of what may happen after the latter's departure. This is so because during the 48 to 96 hours of pretrial detention, the defence lawyer will only be present for about an hour. Authorities make a point of emphasizing that such a declaration has been given without coercion and with the assistance of a defence attorney. This confession will certainly be used against the accused at trial.
The Federal Law for the Prevention and Sanctioning of Torture states that no confession or information obtained through torture my be used as valuable evidence. (Art. 8). The problem, however, boils down to proving that torture has been applied on the person particularly in cases of physical injury that leaves no trace, or in the case of psychological torture -- both of which are hard to prove.
According to article 8 quoted above, information obtained through torture cannot be used as valuable evidence, but that does not mean that it cannot be used to locate or identify further information, which in spite of being obtained indirectly from the coerced statement, may certainly be used at trial.
There is no specific rule against deception of the accused during interrogation. This is common practice by police and public prosecutors.
It is very rare for the accused to be previously informed of the consequences that a confession may carry.
In the case of administrative, civil, or other non-criminal proceedings, it is hardly possible for the suspect to be forced to incriminate himself of a criminal offense.
Conditions are very different for persons in pre-trial detention on the one hand, and convicted prisoners on the other. Pre-trial detention often takes place in lugubrious isolation cells called separos whereas detention during trial and post-conviction is held in regular prisons. Conditions of incarceration for those being tried, and those already convicted, are basically the same. By law, they have to be separated from each other -- something that does not always occur due to overcrowded prisons and penitentiaries.
In the experience of several judges in ordinary state jurisdiction, around 25 to 40% of detainees are held in custody. In order to determine whether or not a person shall be detained during trial, neither the law nor the judges take into account the deprivation of an opportunity to prepare a defence.
In order to obtain an arrest warrant and detention the public prosecutor must have received a complaint regarding a felony or misdemeanor which deserves prison penalty, and must demonstrate that there is enough evidence of the existence of a crime and the probable responsibility of the accused. Such evidence is obtained by the public prosecutor on his own, without judicial control, and only when he himself has received and validated it, does it proceed onto the judge who then issues the arrest warrant without previously receiving any direct evidence except for the written one. This means that the judge ultimately depends on the public prosecutor's judgment. Furthermore, the prosecutor may now constitutionally issue the arrest warrant in cases considered urgent and relating to a serious crime, when there is a reasonable risk that the offender might flee. In addition to the cases previously cited several people show up at trial having been illegally arrested as we will explain later on.
Excluding minor traffic violations, about 50% of all offenders are arrested upon the initiation of the trial either because the judge or the prosecutor has issued an arrest warrant, or because they were caught in flagrancy or have been illegally detained. About one third of this 50% will recover their freedom during trial, mainly on bail and occasionally because the judge releases them due to irregularities in detention. The rest -- 25 to 40% of all the offenders -- will be retained in custody until final disposition. Somewhere between 60 to 90% of all offenders subjected to pre-trial proceedings will be convicted; indictment is usually synonymous with conviction.
The amparo is a traditional remedy available for challenging the denial of release from detention. It works in such a way that the person will either be indicted or released. The former is more usual.
In regular criminal procedures, once the accused has been indicted, the judge reviews the
detention procedure within a 72-hour term although this time is not enough to investigate any claims of an illegal detention. Since, in most cases, efforts are made to keep up appearances, about 98% of all detentions are confirmed. Even if in the amparo a provisional measure is granted for the purpose of indicting, it never decides whether or not the accused has been illegally detained. The trial and conviction may then take place in spite of illegal arrest. The explanation given by the Supreme Court of Justice is that if someone's detention is originally illegal when carried out, then it becomes legal when it is the judge, and not the police, who keeps the defendant in jail. A result of this has been the practice of illegal detentions. Given the fact that just about all the amparo claims on this matter have been dismissed on these grounds, the summaries of Mexican judicial decisions hardly contain any information regarding the protection of personal freedom. This situation prompted an amendment to the Amparo Law, but several courts have continued dismissing cases related to personal freedom now arguing that amparo is unable to protect people once the violation of a right has taken place and it is therefore no longer possible to legally restore the right violated when a trial is in progress. On this issue, the Supreme Court of Justice is expected to assemble shortly in order to decide if the Judicial Branch, by means of amparo, is to commit itself to providing an effective remedy against illegal detentions.(13) In general terms, it must be said that -- all matters of amparo combined -- 80% of these are not successful either because they are dismissed or denied.
As far as pre-trial detention conditions, or the failure to provide fair procedures prior to trial goes, the formal legal remedies -- generally sophisticated and expensive -- hardly work. For these reasons the public commissions of human rights (ombudsman), often protect such rights more efficiently through the immediate action of their visitors and commissioners.
Basic rights and their legal remedies like amparo may be constitutionally denied during states of emergency but this has not formally occurred since 1942.
B. Notice
As has been said before, a person may be detained without being charged for a period of 48 to 96 hours. Upon first appearance in court, he has the right to hear charges against him, but we should bear in mind that this first appearance does not carry the importance it should, since judges lend greater consideration to whatever was said during the first appearance before the public prosecutor. (It is compulsory to do so.) In the same way, at the pre-trial stage, the detainee also has the right to hear charges, but this is often denied and there is no legal remedy against it when the record says otherwise.
According to article 28 of the Federal Criminal Procedure Code, when the accused, the victim, the plaintiff the witnesses, or the expert witnesses, do not speak the language, a translator should be assigned. In case this does not happen, there are grounds to nullify the procedure.
The detainee has very little access to evidence against him when he appears before the judge, and almost none when facing a public prosecutor. In any case he should have access to the files, but this is seldom permitted and copies are denied. It is permitted only after declaration that his lawyer is to have reasonable access to the files.
The Constitution clearly establishes that the accused should have all the information in the averiguación previa file required for his defence. Nevertheless, this information does not necessarily contain all the data against him. The case may be modified through a practice known as broadening of penal action. Surprise evidence may be introduced at any time. Before the judge, the accused may offer all the evidence he has in his favor for a reasonable period of time.
C. Counsel
The right to counsel starts with detention itself, but conditions to exercise it are very limited during the pre-trial proceedings since the public prosecutor acts as a supposedly impartial authority while sustaining the accusation, which means that he judges and contends at the same time.(14)
The accused is free to choose his counsel, but if he does not have the money to pay for one, a public defender shall be assigned.
According to an amendment to article 128 of the FCCP, during pre-trial proceedings, the public prosecutor is to notify the defendant of his right to adequate defence. A lawyer or a person entrusted by the accused if he does not desire the appointed defender or a public one shall be assigned. Since the law does not specify who is in charge of the appointment, this public defender is usually assigned by the public prosecutor himself and not by the public defender's office, which does not have the sufficient staff to attend pre-trial proceedings. University students carrying out professional training, or members of the different sections of the prosecutor's office are commonly given the job. Regardless of the professional quality of these public defenders, the public prosecutor's power to assign defenders for the accused (justified by his supposed impartiality) obviously renders the latter defenceless. Moreover, though there are well kept records testifying as to the presence of the public defender by means of his signature, a lack of defence cannot later be alleged by the accused.
In order to ensure that a detainee is able to contact counsel, the law establishes that he should be allowed to communicate personally, or by telephone, and not remain incommunicado at any time. In spite of that, during pre-trial proceedings, this right is often denied before the first statement of the accused under arrest. Once on trial, the prison's social workers should notify the inmate's family in case they are ignorant of his incarceration. There is no specific provision related to the contacting of the counsel, since the family is supposed to arrange this. The facts are that, once the accused is before the judge he will be asked whether or not he has private counsel and, if he does not, he will then be appointed a public defender, but the accused will rarely hold an interview with him before the opening hearing.
Remuneration of public defendants is usually lower than that of lawyers in private practice, and it is also less than that received by the public prosecutor who acts as authority and/or a counterpart in the same case. Counsel is provided without cost to defendants who cannot afford it, no matter what kind of crime has been alleged. The accused must have an attorney -- private or public -- at all hearings and the trial will not go on without the presence of one. The problem is not the defender himself but his professional skills and possibilities in fully exercising the right to defence, especially during pre-trial proceedings.
The appointed defender usually continues his counseling through appeals, but rarely demands the amparo. There are no appointed counselors and few private lawyers working on prison conditions and adjustment of prison time.
In 1994 an amendment was made to the FCCP addressing inadequate counsel. The amendment makes it possible to repeat the trial when the counselor does not inform the accused of the accusation and its repercussions, fails to attend the hearings or when there is omitted evidence. (Art. 388 FCCP). A similar reform was made to some state codes.
On the other hand, the public technical services and resources are assigned to the public prosecutor and they are not always available to the defence, not even to the public defender. This means that the accused, as is often the case, has a clear handicap when he has no economic resources and the case is decided upon technical evidence. The public organisms for the protection of human rights have spoken out for the need for an independent technical body which may serve the prosecution as well as the defendant and the judges.(15) Communication between the accused and the counselor is constitutionally guaranteed but hard to exercise during pre-trial detention. In some states there is a line which separates the lawyer from the accused in detention, denying the confidentiality that is supposed to exist between them given the fact that police agents are present at all times. During trial, communication between the defendant and his counselor is permitted. Once the detainee is placed at the judge's disposition, he may communicate with his defender in accordance with prison rules.
D. Hearing
The right of the accused to be tried without undue delay is imperfectly guaranteed. Article 20, VIH of the Constitution, establishes as a fundamental right that the person, whether in detention or not, shall be tried within a year. In spite of this, the procedural codes do not provide legal consequences -- except for the judge's responsibility -- in the case of the one year term being exceeded, even if the accused is in preventive detention. Notwithstanding, if this right has not been respected, he might act through amparo in order to obtain a resolution that will compel the judge to decide on the case.
Such a term is only established in the first instance procedure, and does not include the pre-trial stage or the appeals proceedings.
With reference to the length of the different stages of trial, we have the following:
The average length of time that elapses between the arrest and formal charging of the offense is generally within the constitutional limits of 48 to 96 hours depending on the kind of crime in question.
The average length of time between the formal charging and the beginning of the trial is 72 hours. This term has been observed for a long time and may only be extended upon the defendant's request for a similar period of time.
The trial itself should last no more than a year. This term is observed in approximately 80% of the cases.
The amount of time taken for the initiation of the appeal and the disposition of it, including the amparo procedure to review the constitutionality of the process, often varies from six months to three years. Duration of such procedures is not constitutionally established. Approximately 20% of these procedures last long enough to be considered violation of the right to be tried without undue delay.
There are certain cases in which the law provides a summary proceeding: when the punishment does not exceed a two year term; when it does exceed such a term but the person is caught in flagrancy; when a confession is legally obtained; when the punishment does not exceed an average five year term; or when there is a possibility of an alternative sentence. Besides these cases there is a constitutional right (art. 20, VIII) which establishes that trial procedures relating to a crime whose penalty does not exceed a two year term should be decided within a four month term. The rest of the cases are subject to the general rule of a one year term per trial. In practice, there are no specific trends establishing a relation between the kind of crime and the amount of time usually taken.
There is a great difference between the amount of time allowed for the initiation of a trial, in the case of a detained defendant and that permitted for a defendant who is not in custody. In the first case the pre-trial will take from 48 to 96 hours whereas, in the second, it may last months or years.
According to Mexican law, cases are pursued upon the victim's request or on behalf of public interest. In the first of these situations, most cases are settled before they reach the judge. There are no special provisions to decide when a case pursued on behalf of the public interest cannot be sent to court, since the mandatory prosecution principle is applied in Mexico, meaning that only some cases may be solved through the victim's pardon. In spite of that, it often turns out that the prosecutor does not submit charges before the judge. In l995, the following paragraph was added to Article 2l of the Constitution: "Failure to indict and withdrawal of criminal charges by the Ministerio Público may be reviewed through the jurisdictional procedure to be established by law." Nonetheless, this constitutional provision does not apply to the prosecutor's failure to pursue a case adequately and responsibly. Until now, this amendment has not been regulated as ordered by the Constitution.
Even though there are no legal grounds in Mexico for deciding on the convenience and opportuneness for dropping charges (only with the exception of some misdemeanors), in
practice, this may occur during the pre-trial proceeding. This happens mostly due to corruption in the way of favoritism, bribery, and political reasons. (Remember that the public prosecutor belongs to the executive branch.) It may also happen simply through overwork. Some cases are also dropped for reasons of justice and equity motives.
Undue delay in pre-trial proceedings for detained individuals seldom takes place, but when it does occur and can be proven, it may be presumed that the person was held incommunicado, thus the confession obtained during the pre-trial proceedings will not be taken into account by the judge. Besides, the public prosecutor must face responsibility. When the person has been charged but not tried, there are no legal consequences of any kind in spite of the fact that the accused is in a state of legal uncertainty and may be subjected to police extortion.
When evidence has been shown at trial, no further charges can be added to that same case, but a new trial may be undertaken separately. This is so because the corpus delicti is provided by the law and its complexity requires specific evidence which, if modified, will leave the person defenceless. However, in many cases, both trials must merge when the crimes can be linked. (Arts. 473-475 FCCP.). Once the evidence has been fully displayed and received, such a mergor cannot take place. (Art. 476 FCCP.).
Regarding criminal trials, during pre-trial, the accused does not have the right of a public hearing. This right only comes into being when the accused is at the disposition of the judge. This goes against the right to the assistance of counsel. Mexican law and practice does not restrict the judge exclusively to the evidence received in the courtroom. He must abide by all the evidence provided by the public prosecutor as a result of the pre-trial stage, including the confession of the accused, even when it is obtained without the guarantee of its having been taken in public. Nevertheless, such evidence is recognized as having the full weight of evidence in determining the final sentence. In this context the ruling principle according to which the world of the judge is the world of the trial, does not apply to our legal system.
Once the accused is before the judge, the hearings become public and the representatives of the mass media can attend, but this seldom occurs. It is very rare for trials to be broadcast on radio or TV, since in practice -- this declaration is merely routine and of little importance. Besides, there is no adequate scenario for this because the accused remains behind bars or a wire mesh. As has been said, the most determining deposition for the trial is the one made at the pre-trial stage, before the prosecutor, when no right to be heard in public is granted and thus no cameras are allowed during inquiries. With regard to hearings before the judge, these are held in private in cases of sexual offenses and in some heinous crimes.
Since our criminal system does not rely on jurors, but on the judge, there are no provisions to protect the accused from prejudice due to media coverage.
As far as the right to be tried in the same geographic locality to where the offence at issue occurred, the FCCP (art. 10, third paragraph, recently amended), states that the case of the accused may be transferred to a judge of a different locality when administrative or judicial authorities consider he should be kept in a high security prison due to the
characteristics of the felony under investigation, the personal circumstances of the perpetrator, or other circumstances which could obstruct a regular criminal procedure. In view of the fact that there are only two of these prisons in the country, some persons are tried hundreds or even thousands of kilometers away from the locality where the crime under investigation took place.
The law does not specify any case when the trial should be transferred to another locality to avoid local bias. This may be due to the fact that in Mexico the jurors rarely enter the courtroom. Mexican Law does not accept under any circumstances a trial in absentia. There is thus no distinction between the cases in which the accused fails to appear for sentencing, fails to return during trial or fails to appear at the beginning of the trial. Nor is it possible to try a person who is not alive.
The proscription of trial in absentia is a practice observed without exception and although it does not have specific constitutional support it may be understood as a necessary means of ensuring the right to a defence.
A significant matter arises in relation to trials in absentia. Even though, as has been said, these trials are unknown in our legal system as in our legal practice, this only means that in all trials the defendant is available -- either because he is in custody, on bail, or under oath. However, it often happens that when the defendant is in custody, under preventive detention, he is not personally in the courtroom when the hearing takes place. The federal law, as well as most of the local ones, do not recognize the right of the defendant to be present during all hearings. This situation is bizarre since one of the main reasons for the existence of preventive detention is to ensure the success of the trial and the presence of the defendant at every moment when evidence is being obtained -- the latter's case relying upon that. The International Covenant on Civil and Political Rights, considered a supreme law of the Mexican nation, in view of Mexico's ratification of it in accordance with constitutional procedure, specifies the right of the defendant to be present during the trial, and to personally assume his defence, or to be assisted by a defender of his choice. This right is, however, generally disregarded. Given our codified legal culture, inherited from Napoleon, international declarations and conventions still have little direct legal effect in our country.
When the accused is judged to be mentally incompetent for the purpose of trial, this circumstance is assessed by the judge relying on expert testimony upon the request of the defence attorney, the prosecutor, the warden, or on his own initiative. A special proceeding is thus opened, and if the participation of the accused is proven, compulsory treatment is prescribed. This measure is generally enforced in prison. In most of the procedural codes of the nation it is established that the length of the treatment imposed should last no longer than the punishment for the felony in question. Such a judicial resolution may be reviewed or appealed against. There is also the possibility of returning the mentally incompetent person to his family upon the order of the judge -- his health being a prime consideration provided that they observe and look after him.
Even though the presumption of innocence applies at all stages of a criminal procedure, the trial begins not only when the prosecutor has found reasonable grounds to file charges, but under the premise -- based on the evidence obtained during the pretrial stage -- that the accused is presumed responsible for the criminal offense.(Article 16, first paragraph of the Constitution). In fact, about 80% of all indictments with the accused under detention, or detained and released but indicted, end up in a guilty sentence. This percentage decreases to about 35% when the person was not detained during pre-trial. Recent legislation has been passed restricting information gathered at the pre-trial stage and establishing responsibility for the public prosecutor who breaches the secrecy of the investigation, in this way endeavouring to avoid its misuse rather than protect the public reputation of the accused.
The reputation of the accused is often damaged through the publication of photos in the newspapers, who avoid responsibility by adding the words "suspect" or "presumed."
The most common way to mislead judgment is through evidence obtained at the pre-trial stage which does not have to be reviewed at the judicial hearing.
Considering that the prosecutor bears the burden of the proof and that, in case of doubt, the accused must be acquitted, conviction is usually reached through the joint analysis of the evidence. Article 197 of FCCP states that full proof may only be reached through such a method. Besides, article 290 of the FCCP requests a more precise statement of reasons regarding the value assigned to each piece of evidence.
In civil matters article 197 of the Federal Code of Civil Procedures grants the judges the free consideration of evidence under the general principle that he who sustains a case has to prove it. In civil, as well as in criminal matters, there are privileged values attributed to different proofs, such as confession, witnesses, and public documents. There are no specific rules as to the value of evidence produced in civil suits and brought into a criminal procedure, and vice versa.
Proceedings intended to nullify certain acts may be appealed to " . . . when the latter lack any of the essential formalities provided by the law in such a way that they harm any of the parties, as well as when the law explicitly so specifies . . . " (Art. 27 bis of the FCCP). These actions usually relate to judicial formalities, such as acts, records, minutes, and their respective seals and signatures, rather than to the proceedings as a whole. Hence, unlawfully gathered evidence in trial (or during the pre-trial stage) is admissible against the accused.
If the confession of the accused is obtained pursuant to his arbitrary detention -- while he is in pre-trial confinement -- the said confession may be admissible as evidence, as long as this confinement does not exceed the 48 or 96-hour term established by the Constitution. It is a matter for discussion, however, whether or not this interpretation should continue to be applied, since it clearly promotes illegal detentions and torture.
It must be pointed out that ordinary law establishes that the judge must exercise control over the detention and verify its lawfulness, (Art. 134 FCCP.); but this power is hard to exercise. When the judge receives the case, he must decide whether there is probable cause within a 72-hour period, and the accused and even some witnesses may testify. Thus the judge has no time to review the actual circumstances under which the detention was carried out and must rely solely on the formal records which may be altered. Even so, when a judge finds that according to the very same documents submitted by the prosecutor it may be concluded that the arrest was illegal and on this basis releases the accused, he will then be criticized by the prosecutor and even by his own colleagues and superiors as a "protector of criminals." In any event, this regulation will hopefully tear down a legal fiction enforced for several decades according to which an illegal detention ceases to be illegal once the accused is indicted, since the accused is considered to be under the judge's control.
According to article 287, IV, of the FCCP, no one shall be indicted upon an uncorroborated
confession. This amendment was motivated by the need to bring a halt to torture as a means of obtaining a confession. Nonetheless, it is generally easy to obtain other evidence either through confession or the linking of the confessor to previously gained evidence.(16) According to Federal Law aimed at preventing and punishing torture, any confession obtained through torture shall have no legal force, but the fact of the matter is that the accused carries the burden of proof which is particularly difficult when torture has left no traces.
Similarly, statements of witnesses taken during their own confinement as suspects, or when they were held in confinement for such a purpose during the pre-trial stage, are admissible at trial. These situations stress the increasing importance of protecting not only the person charged, but also the witnesses, since the authorities often claim that the accused has not even confessed and, as a way of avoiding any suspicion of human rights violations, prefer to rely on incriminating testimonies.
Rights of victims have recently been introduced into Article 20 of the Constitution, and are as follows. In any criminal proceeding, the victim or the party that has suffered a criminal offense, has the right to receive legal aid, to obtain the restitution he is entitled to, to cooperate with the public prosecutor of the case, to receive the emergency medical attention he needs, and every other right established by ordinary legislation.
The FCCP also includes the following procedural guidelines to ensure the accused is thoroughly informed: l) to attend all the hearings and, 2) to receive the psychological assistance prescribed. (Art. 141). Similar rules are being introduced into local legislation.
E. Layout of the Court
1. The Constitution recognizes the independence of the judiciary and the force of its resolutions. It also establishes the irremovability of Supreme Court Judges. Similarly, the latter's income cannot be reduced during their term in office although no protection against inflation exists. A minimum budget to be assigned to the judiciary as a percentage of the general budget has not been established. The Supreme Court has also been granted a larger degree of independence for the management of its budget, mainly through the Board of the Bench.
A Constitutional amendment has recently been enacted through which the number of justices was reduced from 26 to l. This creates a Constitutional Court whose members are selected through a more democratic process, that is, they are chosen from a list of three candidates drawn up by the President of the Republic and approved by a qualified majority of three-thirds of the members of the Senate. (Arts. 76, VIII and 96). Before this amendment was enforced, the appointment was made by the President, subject to the approval of the majority of the Senate which had an overwhelming majority of members of the dominant political party.(17)
Another of the judicial reform's innovations is the Board of the Bench which is assigned to administrative matters of great importance such as the appointment of the lower magistrates and judges, as well as deciding over the number of courts and their jurisdiction. It also has overall administrative, supervisory and disciplinary power within the Judicial Branch. This body is made up of seven members, 4 from the Judicial Branch, 2 from the Senate, and l from the Executive Branch. The naming of this last member has been criticized for what is principally seen as interference by the Executive Branch. However, this is an open appointment which compromises the President and forces him into a responsible appointment. Not so criticized, but perhaps more responsible for the inefficiency of this new body, is the circumstance surrounding its President who simultaneously serves as President of the Supreme Court, thus nullifying the independence of the body. Deplorable also, with regard to the integration of this Board, is the absence of representatives of the academy and other non-official members. Similarly, the members of the Judicial Branch are incorporated into the Board at random, through lottery and not according to their professional background and moral authority.
Previously the appointment of judges and magistrates was taken "in turns" by the ministers. That is, every time there was a post available, one of the ministers had a non written right to propose the new magistrate or judge, who almost always ended up being approved by the Court. In this way, the newly appointed judge would owe loyalty to his proponent.
The institutional independence of the Judicial Branch is also hampered by the fragmentation of the courts since, both in local and federal jurisdiction, there are courts belonging to the Executive instead of the Judicial Branch. These administrative courts hold a great deal of the state's jurisdiction being, as they are, in charge of matters such as taxes, labor, land reform, elections and administrative regulations. Even though it is a well known fact that these courts may be granted independence -- as indeed they are in Mexico -- it is also true that such fragmentation, along with the implications as far as different status, budgets, and even criteria are concerned, does not contribute to the strengthening of the judicial function.(18)
The independence of judges is undoubtedly more restricted in criminal cases as opposed to civil cases, for the following reasons:
a. In relation to what is called organic independence, even though formal proceedings for the appointment of civil and criminal judges are the same, prosecutors may play a role in the appointment of the latter -- a privilege which must be eliminated by the Board of the Bench. Some judges have a background as public prosecutors and, in spite of belonging to different courts, may maintain strong ties with each other, always accompanied by shared values. Thus, these judges -- commonly known as "aligned judges" or, in Spanish, "jueces de consigna" -- consider it their inner duty to apply the law in accordance with the interests, aims, and views of the prosecution. This brings about a kind of self-control based on loyalty. The situation worsens when the public prosecutor is permitted to, or finds a way of selecting the judge in charge of a case. Since public defence is such a weak institution, there is certainly no similar influence from his part.
The prosecution's political power often represents a threat to judges who not always receive the support of their superiors. In some cases, a judge may need protection, and since the courts do not have -- and usually do not need -- special protection, prosecutors are asked to provide police protection. In this way, one of the contending parties takes care of the judge's personal security. ( In special cases, the same protection may be given to the witnesses for the prosecution.) The lack of an independent body for the protection of whoever may need it, may thus maintain the inequality between prosecution and defence.
Relations between the media and prosecutors are also much stronger than those with the judges, giving prosecutors greater power.
There is thus a great difference between a civil judge who hardly faces any pressure, and a criminal judge who deals with the attorney general's office, and who may appear opposed to public interest, public security, or national security when freely deciding on a case where the government, or even public opinion, desire a given resolution.
b. As mentioned before, the functional independence of criminal judges is limited, since the pre-trial stage, which is dominated by the public prosecutor, almost extends to the sentencing of the accused. Also, in view of the administrative reduction of sentences in the post-trial stage of the procedure, which is conducted by the Ministry of the Interior or the corresponding agencies at the state level, works as a legally established back door justice where the judge's sentence is freely and substantially modified, and may actually be replaced upon the opinion of a prison board, which often relies on the opinions of guards, or on the instructions of superiors.
If it is true that -- under the assumption that they will be reduced by as much as 60% of the term, or in one State 75% -- both penalties and sentences are overdone by legislators and judges alike, such adjustment takes place without any jurisdictional control and is devoid of any due process of law. It is important to say that before the implementation of the system of so-called "truth in sentencing" -- according to which the prison sentences are served in full or not substantially diminished by administrative authorities (only by around 10% of the term) -- the penalties should also be reduced in the criminal codes and by the judges in practice. Otherwise, in view of the fact that we have prison sentences of up to fifty years, so desirable a system would be counterproductive.
It is under the banner of correction and rehabilitation that the authorities claim to measure the degree of redemption of a sentenced person, and it is in accordance with that criteria that they determine the length of the prison term each person supposedly needs (or deserves).(19) It is easy to understand that such reports, which cannot be reviewed at any other level, may well act as a justification for many different purposes. There is a well documented case where the sentenced person was granted early release even before his prison term was due to begin,(20) while, at the same time many other inmates do not get the benefit of an expected reduction at all.
According to Article 20 VI of the Mexican Constitution, it is compulsory that people who commit crimes by means of the press against public order or internal or external security, receive a trial by jury. Although these cases are very rare, federal and state laws could establish that more cases be tried by jury, but as yet they have not done so. Neither is it possible to introduce lay assessors. Nevertheless, the National Ombudsman has recently made very specific proposals before a Senate Commission towards a jurisdiction for indigenous peoples. (Appendix B).
Generally speaking, procedural laws establish rules for those cases where a judge is presumed to be biased for a limited number of reasons, such as relationship or close friendship with any of the parties. This must be proven and would bring about the dismissal of the case. The option, however, to remove a judge from a case's jurisdiction when his behavior could be considered as biased does not exist.
F. Decision, Sentencing, and Punishment
It is a constitutional right that the decision taken in any case -- civil or criminal -- be issued along with a public statement of the reason. The Supreme Court has stated:
Statement of reasons and legal support(21)
According to Article 16 of the Federal Constitution, every act by an authority must
adequately and sufficiently express the statement of reasons and specific legal support on
which it is founded. The statement of reason should mention the specific circumstances,
particular reasons, and immediate causes that are taken into consideration for the
performance of the action taken or act adopted, this being necessary for an adequate
relation between the reasons claimed in its support and the established applicable norms
-- that is to say, that in a given case, it be in full accordance with the law.
There is no obligation to publish the statements of reasons in civil or criminal cases. It is compulsory for other courts to publish their resolutions and an excerpt of them in relation to amparo cases considered precedents, but neither the District courts, nor most of the state courts publish their resolutions on civil or criminal cases, clearly diminishing the legal security of the population. As for the Supreme Court, its sentences and doctrines must be published in a monthly journal edited and distributed so as to facilitate the defusion of their content.
3. The principle non bis in idem, is recognized in Article 23 of our Constitution which establishes that no person shall be tried twice for the same offense after acquittal or conviction for said offense (double jeopardy).
Whenever this principle is violated, the person already tried is protected by the amparo trial. One of these violations occurs when the legislator or the judge increases the penalties in the case of a recidivist, or when reduction of the term in prison is denied due to the kind of crime committed. This is to say that the said principle shall not be restricted to cases where a formal sentence has been pronounced, but shall be applied to any act in which someone is incriminated for conduct already taken into account by another authority. In this way, if the judge increases the penalty because the law considers it to be a serious crime, and he agrees, there is no reason for him to deny the sentenced person the same opportunities as other inmates have, and thus lengthen the already long prison sentence. The same situation arises when a crime has previously been committed and its respective sentence served.
The same Article 23 protects anyone facing a second trial after a mistrial. However, if such a mistrial does not end in a definitive acquittal, the rules change. If the accused has not been indicted, he may remain in jeopardy for as long as the prosecutorial action becomes unenforceable, even if there has been an administrative decision of acquittal; but if there was an indictment, the action should only continue with regard to the offenses as classified by the judge. Having said that, the interpretation of the Supreme Court has been that the accused may be sentenced in that process only if the trial dealt with the same offenses, even if differently classified during the trial.
There are legal dispositions specifically related to ex post facto laws which, first of all, establish the prohibition of any law applied in the past when it goes against someone's interests. (Art. 14, Constitution).
The codes for criminal procedures establish a rule making it compulsory to apply any new law, upon or after sentencing, when this new law has lowered penalties. The sentences should then be proportionally reduced by the administrative authorities ex officio. There has been a misinterpretation by the courts in the case of ex post facto laws relating, not to punishment, but to procedural matters, as when the law was modified to avoid prolonged pre-trial confinement and declared void all self-incriminating statements taken after the time set for the initiation of the trial. It was also decided that statements obtained under the old law would remain valid.
The law prohibits imprisonment solely for breach of contract. This is a well recognized guarantee by all courts. But there are instances, particularly in the states, where unscrupulous lawyers, hand in hand with public prosecutors or police, threaten imprisonment in order to coerce, frighten, or threaten debtors. These cases abound due to the lack of effective remedies against violations of personal freedom and the impunity of perpetrators. Convictions for illegal detention are practically non-existent.
Hearings on civil and criminal cases are regularly open to the public unless the law permits the opposite. It is necessary, however, to take two matters into consideration regarding criminal procedures. To begin with, there is no guarantee of publicity at the pre-trial stage. Furthermore, with the constitutional amendment of 1993, only some rights are granted to the person charged -- such as the possibility of offering evidence and of receiving defence.
The protection of a public trial was not introduced at this stage, thus the proceedings continue to be secret, except for the presence of a defender or someone named by the defendant on the grounds of trust. This limited presence of "outsiders", occurs only at the moment of reception of declarations, but not when informal or police interrogation takes place . On the other hand, when hearings take place at criminal courts and, to a large extent, at civil courts, neither are usually conducted personally by a judge nor are they held in decent courtrooms. The parties and the secretary to the judge presiding usually stand beside the typist's desk. When, during criminal trials, someone is in confinement, he is to be found at the same place but behind the wire mesh or bars dividing the courtroom from the prison facilities. The defendant is actually outside the courtroom, and is usually not given a chair. Moreover, it is frequently difficult to see through the aforementioned mesh.
The absence of the judge from the hearing should render it void; but nonetheless, judges sign the files as if they had presided at the hearing. Only if the defender makes a point of it, will the judge enter the hearing.
Collective punishment is neither allowed nor practiced in criminal procedures. The different forms of vicarious criminal liability are regulated by the criminal procedures codes and are in keeping with the commonly admitted forms of participation.
Capital punishment has been abolished from criminal codes, except for the Code of Military Justice and the Constitution -- even though it has not been legally applied for many years. According to the Constitution capital punishment can be imposed only for treason against the nation in a foreign war, in the case of some aggravated murders, for arson, kidnaping, piracy, and for various other serious military crimes.
Particular claims related to cruel, degrading or unusual punishment, as well as torture against convicted persons, may be raised before the courts like any other offense. However, given the ties sometimes existing between judicial police, public prosecutors and even prison guards and officials, it is often necessary for local or national ombudsman to take action and carry out preliminary investigations recommending the legal investigation of such ties through the prosecutorial and judicial systems. Since our federal and state courts in general do not deal with the conditions of confinement in prisons, the only forum available for the review of an inmates' allegation of a human rights violation is the ombudsman offices. So far, they are the only ones that in fact investigate and produce reports and recommendations to ensure constitutional rights on matters such as overcrowding, safety, corruption, food, medical care, personal appearance, discrimination, searches, family relations, confidential visitation, legal assistance, classification, institutional transfers, disciplinary proceedings, opportunities for education and training, and prevention from arbitrary treatment.
There is no clear relationship between the way the accused defends himself and the penalty imposed, other than the judge's subjective idea of what such conduct may justify. Some judges, particularly in the states, think that if, for instance, someone exercises his right to remain silent, it is because "he must be guilty or hiding something."
The cooperation of the accused in the proceeding, through his confession of minor crimes means a speedier trial and usually a reduced sentence. Besides this, a proposal for a new law against organized crime prepared by the Attorney General's office has been submitted to Congress, rewarding criminals' cooperation with the public prosecutor, via different degrees of impunity.
G. Appeal or Other Review in Higher Courts
The review of sentences by higher tribunals is legally established and ordinarily practiced in most states except when the penalty does not exceed six months of prison, or the sanction is other than imprisonment. This is also the case when sentences have been pronounced at brief trials. No matter what the case may be, any judicial resolution may be reviewed through amparo, for which there is no limit of time at all. Appeal procedures usually have to be filed within 5 to 10 days after sentencing.
In criminal matters, it is compulsory for the higher tribunals to review any matter where there may be a grievance, even if this was not claimed by the sentenced person or his defence lawyer.
The prosecution may appeal against all the significant decisions of the judges, but can not demand amparo.
There are regulations to prevent the trial judge from presiding in an appeal court.
Interlocutory decisions may also be appealed or reviewed through different proceedings, without having to wait for the final decision.
Civil cases are very similar, most of them can be reviewed, and the parties may demand amparo.
H. Pardon, Amnesty, and Expungement
Besides the ordinary and extraordinary means of reviewing a sentence, like appeal, and amparo, there are the procedures of amnesty, pardon and the admission of innocence, wrongfully known as necessary pardon.
The admission of innocence aims at obtaining relief mainly from new evidence and errors of fact. Appendix A represents a synthesis of the current limitations in this procedure and a proposal for its regulation in the direction of the writ of coram nob is, or the writ of error coram nob is, with a view to extending it to some cases where injustice allegedly occurred through prosecutorial misconduct, or lack of defence. Appendix A also is an attempt to broaden its possibilities and prove them. By adopting this proposal, the effects of our inquisitorial procedures could be mitigated.
It should be pointed out that there is a constitutional limitation that any criminal trial have no more than three instances, (art. 23), so there is not ordinarily a possibility to review the case once an appeal court's decision has been confirmed as legal through the amparo trial. There is a widespread idea that surpassing this limit would work against society's legal order. This is a wrong idea. There is a concealed way of thinking in many judges that the admission of a mistake would affect their moral authority. The current legal limitations implicit in this opinion, results in the success of these procedures being very rare, almost untenable.
I. Other Remedies
There is what we have called a non-jurisdictional system for the protection of human rights, consisting of a National Ombudsman and 32 other entities in accordance with our federal layout. According to the original model, the Ombudsman is a body that depends on the legislature but enjoys autonomy of action, and consequently it is set up as a "parliamentary commissioner." Its principal power rests in the hearing of complaints brought by the citizens against administrative authorities when they affect their legitimate rights and interests. The goal is to provide a swift remedy or, at least, to set investigations in motion and formulate non-obligatory recommendations to the authorities. These recommendations are published in regular reports, generally on an annual basis, which are then presented to the legislature.(22) With some organic and functional differences from the classical model,(23) the constitutionally founded Mexican Ombudsman. plays the basic role of an institution protecting human rights through investigations and public recommendations. It transports the responsibility from the lower level of government, where most violations of human rights take place, to the higher officials who face a political responsibility if and when they do not comply with the recommendations. The importance of the ombudsman in the protection of fundamental human rights clearly throws light on the existence of structural problems in the prosecutorial and justice systems.
Even though there is no specific federal or state means for receiving compensation when a person has been convicted and punished of an offense -- and that conviction has subsequently been reversed -- the American Convention on Human Rights, Article 10, recognizes this right, and the convention is considered domestic law. The fact that the Mexican Government has not implemented such a system into its laws nor assigned funds in that direction, in no way means that the right to compensation can not be exercised. Unfortunately, the Inter-American Court on Human Rights' interpretation and application of the Convention is not available in the country.(24)
A different circumstance arises when the miscarriage of justice is due to injuries suffered from state agents. There is little experience in this field, but according to recent legal reforms,(25) the Federal Government has become directly responsible for injuries -- including moral ill treatment -- willfully inflicted by its employees and simpler procedures have been introduced to provide compensation. This does not apply to acts without intent or malice. In these cases, the government's responsibility still remains, but the injured party must first sue the public servant and only in the given case that the latter should not be able to offer compensation will the Government be required to do so.
Most cases of individuals who are detained during pre-trial and released during the same period, are not even recorded. This is one of the most alarming situations for human rights since detainees are often afraid to complain for fear of retaliation. Some are released during trial or upon its termination. In any case, the injured party may obtain compensation through the same liability procedure against the state agent, or through a civil or criminal lab. Compensation provides for material as well as moral injury. However, seldom is compensation obtained. This situation may be understood, in the case of human rights violations, because legislation on this matter is new and unknown to many lawyers and judges, and, as far as moral damages are concerned, there is neither experience nor clear parameters for their assessment. It is therefore difficult to evaluate what payment suffices for two days' solitary confinement and inconvenience caused to the detainee's family in the way of visits to police stations.
One of the applications of our amparo is as habeas corpus which, according to the law, should protect the individuals from actions against human life, restrictions to personal freedom not ordered by courts, deportation or banishment, torture, and inhuman, cruel, or degrading treatment.
As has been said, compensation for damages is provided by the government in case of violation of a person's rights when such an action is maliciously perpetrated by a public servant, but there is little experience for obtaining such compensation.
Most fundamental rights are formally protected by laws and the Constitution. Perhaps the only right expressly denied by the Constitution is contained in Article 33 establishing that: "The Executive Branch shall have the exclusive faculty of forcing an abandonment of the national territory immediately and without necessity of a previous trial upon any foreigner whose permanence it may deem inconvenient."
In spite of the widely recognized rights in the laws, there are situations where fundamental rights find no protection at all in law itself. In the first place we have the case of violations of rights that, although protected, are difficult to prove, given our legal status as examined above. Among these are to be found torture and unlawful treatment in pre-trial detention (always inflicted while under the authority of those responsible for the investigation). A different situation is that of the rejection of a reduction of a prison term due to results of personality studies, against which no legal arguments are valid and discrimination is most possible.
Protection is also difficult for social rights, such as the right of prisoners to work and earn wages while in jail. In this case amparo is theoretically possible but unlikely to succeed. Indeed, if the inmate is not reasonably well fed, for example, there is a real attack on individual fundamental rights. A similar situation presents itself in other fields when, due to the administrative discretion of the authorities, a permit, license, or concession is simply denied thus preventing the individual from earning a living.
J. Procedures for Juveniles
Juveniles from l1 to 18 years of age (varying in some states from 8 to 16 years old) are accountable for the same offenses as adults, but they are subject to a different procedure, receive lower sanctions, and are confined separately from adults.
Mexican law is on its way to considering juveniles as legal persons, and abandoning the paternalistic approach according to which their rights to defence are denied, and that they are under treatment and thus not punishable. Ten out of thirty-one states, plus the Federal District and the Federal system for juveniles have changed their legislation in the same direction. There is, however, still a legacy inherited by the new laws, since the time of confinement is undetermined and subject to the results of treatment, entailing a lack of security.
The juvenile procedure is brief. The federal law establishes an initial term of 48 hours to determine if there are enough grounds for a case, and a period of up to 30 days to make a final decision on the youngster's responsibility. These terms are usually respected.
We should say that there is no constitutional basis for the juvenile justice system, thus it is only regulated through ordinary legislation.
K. Military Courts
Both military and criminal procedures are very similar since the constitutional reform of 1993. Before this reform, criminal military procedures did not include the administrative pre-trial stage, then only established in the secondary ordinary criminal legislation, and not in the Constitution.
The existing differences between the two procedures may be summarized as follows:
a) The trial before the Board of War (set up only in case of armed conflict) establishes some limits to the guarantee of appeal against those procedural acts which affect the liberty of the person. (Art. 701, Code of Military Justice, CMJ).
b) There are certain constitutional irregularities in the military legislation, some of which are similar to those that exist in the ordinary criminal legislation.
i) Iuris et de iure presumption of intent, when the facts and the relation between them and the accused are proven. (Art. 601, CMJ). This criterion has been overcome in ordinary legislation.
ii) The subsistence of rules favoring confession, giving it full weight of evidence. (Art. 523 and 603, CMJ).
iii) As well as in cases of Federal and most state legislations, it is accepted to conduct hearings in the absence of the defendant from the court room. (Art. 637, CMJ).
iv) The members of the military courts are all appointed by the Defence Ministry (arts. l, 7, 13, 18 and 27 of the C.J.) and thus their independence is not fully guaranteed in accordance with art. 17, third paragraph of the Constitution. Nor is there a constitutional request that their higher judges be ratified as such by the legislative bodies like it is provided in the case of members of local superior courts. The Senate, however, approves the appointment of superior commanders of the army, among which the superior military judges appointed by the Defence Minister on his own.
Article 13 of our Constitution guarantees that civilians shall not be tried by military courts, which only deal with offenses related to the military discipline. Nor may military courts deal with the responsibility of any civilian implied in such offences should a civilian take part in such offences. Nonetheless, given a state of emergency legally declared, grounds could be found to subject civilians to these courts. This is so because Article 29 of the same Constitution, relating to the state of emergency legally declared, does not specify the fundamental rights which should not be curtailed, nor waived under any circumstance.
A different matter is the participation of the military in public prosecution of non-military offences.
L. Emergency or Special Courts
With the exception of the above mentioned military courts, there are no other courts constitutionally established as special tribunals; nonetheless, defendants may be transferred at the beginning or at any stage of trial to one of the two high security prisons now in operation, and thus be tried by the nearby federal courts in each case even though the offenses were committed in a different jurisdiction. (Art. 10, third paragraph FCCP.). These courts do in fact and by law become special tribunals. (In view of the fact that these prisons were originally built only for convicted prisoners, for each case, it is the court that moves into the prison to meet the accused, not the other way around).
M. Administrative Courts
Administrative procedures which might have consequences similar to those of criminal proceedings, are usually summary; the independence of the deciding body or person is not guaranteed by law; there is no necessary relation between the severity of the fault and its consequence; nor is there a legal definition for a progressive enforcement of sanctions according to criteria of efficiency, opportunity, and benefits produced or expected throughout. There are no public records or summaries of these proceedings or their final resolutions allowing a comparison with similar cases. The attendance of a defender is not provided and therefore no public defence is available.
In many cases the arrest is carried out immediately after the alleged fault, procedural protections
being rendered useless. Even though some local regulations have, over the last ten years,
established principles of rationality and proportionality in the application of those regulations
providing for the possibility of argument and proof before an administrative arrest (of up to 36
hours, according to Article 21 of the Constitution), as in the case of Mexico City, where public
interest is not at stake, most states have not acted accordingly. Most arrest sanctions are imposed
upon very poor people.
Appendix A
Proposal for a legislative amendment to the procedure established for the recognition of innocence.(26)
The current federal legislation on the subject establishes the admissibility of this means of
reviewing the definitive criminal sentence, only in cases where:
1) The final sentence is based only on a proof that has been declared void. (Comment: It is very hard to find a single proof as the basis for a conviction since it is the gathering of evidence that makes it possible for the judge to determine the guilt of the defendant beyond any reasonable doubt.)
2) After sentencing, public documents turn up invalidating the proofs taken into account for indictment and conviction. (In most cases it is impossible to find any documentary evidence.)
3) Someone has been convicted of murder and the supposed victim shows up alive or there is strong evidence that the person is alive.
4) When two people have been convicted for the same crime, it being clearly impossible that the two were involved. This case is based on the possibility that one of the proceedings was necessarily unjust, implying that the trial was based either on false facts or false evidence.
5) When the person convicted has been found guilty of the same crime. (That is to say
double jeopardy.)
In order to offer a solution to those cases in which protection is not available under the aforementioned rules, the National Commission for Human Rights has proposed that the recognition of innocence be accepted when:
1) New evidence is gathered (of any kind and/or related to the proofs previously considered, whenever such evidence may lead to the reversal of the conviction).
2) The existence of proof that, despite the defendant's possible knowledge of it is not offered at trial due to the negligence of the defender, and that, had it come to light in time, would have contributed to the prevention of the conviction. (According to our ruling law, however, the negligent defender can be held responsible for the abandonment of the defence.)
3) Any evidence unlawfully obtained and considered for sentence, if and when this situation hampers the credibility of the evidence, and such a violation was not called on or proved.(27)
4) In case of contradictory or adverse sentences.
5) In any other case when the defendant has knowledge of any proof which , if taken into account, could have caused an acquittal.
According to the aforementioned proposal, any proof generally admitted by law -- not only public documents -- should be accepted in this special procedure; however, a dismissal shall come about when the means of reversing a conviction is based solely on the declaration of witnesses, save when the witnesses' declarations are related to violations of human rights invoked in trial, but not proven at the time.
An important feature of the proposal is that the judge should decide whether or not there are
enough grounds for this before the procedure itself begins. This is in order to avoid an overload
of cases, a hindrance for the justice system.
Appendix B
Jurisdiction for indigenous peoples.(28)
The following are the basic rules proposed by the National Commission for Human Rights in order to recognize autonomous indian authority; the possibility to settle civil controversies; and, in some cases, apply criminal justice. These matters would be submitted through very simple proceedings to recognition by ordinary jurisdiction:
1) The contending parties shall belong to the same indigenous ethnic group or community.
2) That the outcome of such jurisdiction in personal, spatial and temporal terms shall take place only within the same community.
3) The contending parties or litigants shall accept and abide by the indigenous jurisdiction.
4) The indigenous criminal proceedings would not apply to those persons accused of having committed major felonies.
5) The specific rules for the indigenous criminal procedures should by no means be contrary
to the human rights recognized by our legal system, such as the right to counsel, and the right not
to be subject to any kind of cruel, inhuman, degrading, transcendent or unusual treatment.
1. -- -
4. - ó
5. ó -
7. ó
8. - -
9. ó ó
10. " "
12. -
15. ó ó ó ó
18. -
19. " "
20. ó -
21. ó -
24. -