Senate approves new Organic Law of the National Prosecutor’s Office

04/22/21 (written by tmcginnis) – According to Reforma, in a nearly unanimous vote, the Mexican Senate approved a new Organic Law (Ley Orgánica) for the National Prosecutor’s Office (Fiscalía General de la República, FGR) on March 17. Now under discussion in the Chamber of Deputies (Cámara de Diputados), experts from primer think tanks, like México Evalúa, argue that there are presently no evidence-based arguments regarding the issuance of the new law, especially because the National Prosecutor, Alejandro Gertz Manero, has not complied with the current regulatory framework.

While the current law broadly sought to create an autonomous prosecutor’s office and guarantee the guarding of essential human rights, the new regulations favor the investigation of individual crimes and not broader criminal trends, the limitation of victims’ rights, as well as the centralization of investigative control in the hands of the Prosecutor. Essentially, the new Organic Law perpetuates the organizational model of the former Attorney General’s Office (Procuraduría General de la República, PGR), an agency that was characterized by inefficiency and ineffectiveness. During a México Evalúa online forum entitled “¿Necesita la FGR una nueva Ley Orgánica?” (author’s translation: “Does the FGR need a new Organic Law?”), the panelists discussed the fact that the principal aspects of the current regulatory framework, such as an a Citizen Advisory Council, transition units, career training, and professional service centers were never installed. Furthermore, the Criminal Prosecution Plan (Plan de Persecución Penal), which outlines the types of cases the FGR will prioritize during investigations, prosecutions, litigation stages, etc., and recognizes the FGR’s various temporal goals, was never presented. As noted by a México Evalúa analysis, the current situation reflects a dangerous exercise of Gatopardismo — a strategy that purports to introduce radical reform, while in practice making only superficial changes. In essence, it is a paradox that encompasses the idea of changing everything so that, in effect, nothing changes.

Whether or not Gertz’s performance has hampered the development of an effective and autonomous FGR, it remains critically important to evaluate what can be learned from the current situation and what requires adjustment. According to México Evalúa, while the 2014 constitutional reforms to create a new FGR provided an important opportunity to reinvent federal criminal investigations and prosecutions, good intentions and model legislation were evidently not sufficient to achieve better outcomes. An analysis from México Evalúa pointed out that true bureaucratic transformation of an agency like the PGR requires a strong commitment to redesigning institutions, as well as a clear implementation strategy to define short, medium, and long-term courses of action and resource allocation. This, in turn, requires strong political will and specific measures to ensure that the implementation plan cannot be easily disrupted.

Furthermore, while most attention on prosecutorial reform has focused on the federal level, the transition processes of the 32 state prosecutors’ offices have been often ignored. According to analysts at México Evalúa, this is a critical error because these entities are presently responsible for handling the vast majority of crimes of that occur throughout the country. Thus, in order to truly understand the scope and results of any regulatory framework of the aforementioned nature, states require punctual follow-ups.

Transition to Autonomous State Prosecutors’ Offices. Source: México Evalúa.

Forecasting possible next steps in this process, given that sitting President Andres Manuel López Obrador and his (Movimiento de Renovación Nacional, MORENA) party have a strong legislative majority, it seems likely that the Chamber of Deputies will pass the law without substantive changes. However, according to El Economista, bodies like the Office of the United Nations High Commissioner for Human Rights (La Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, ONU-DH) have encouraged the Chamber of Deputies to carry out a process of discussion in open parliament. Over Twitter, the international organization highlighted that the reforms of the FGR remain of great importance to many diverse sectors of Mexican society, and that the victims of crime should be heard before proceeding with any decision.

Sources

El Universal. “FGR no necesita una nueva ley; no ha cumplido con la que ahora tiene, critican.” El Universal. March 23, 2021.

Herrera, Rolando. “Ven regresiva nueva Ley Orgánica de la FGR.” Reforma. March 23, 2021.

López, Mayolo. “Aprueba Senado nueva Ley Orgánica de FGR.” Reforma. March 17, 2021.

México Evalúa. “¿Necesita la FGR una Ley Orgánica?” YouTube. March 23, 2021.

Pérez, Maritza. “Llaman a abrir debate por ley de la FGR.” El Economista. April 5, 2021.

Rosales, Crístel. “La nueva FGR se apunta al gatopardismo radical.” México Evalúa. March 18, 2021.

RT. “El Senado de México aprueba una nueva ley de la Fiscalía General: ¿cuáles son los cambios más importantes?” RT. March 18, 2021.

Prosecutorial Reform in Mexico: Assessing the Progress of the National Prosecutor’s Office

Source: Gobierno de México

03/16/21 (written by tmcginnis) – Two years after the creation of the National Prosecutor’s Office (Fiscalía General de la República, FGR), what is the status of prosecutorial reform in Mexico?

Context

In 2014, Mexico passed constitutional reforms to create a new and improved National Prosecutor’s Office (FGR), emphasizing autonomy from the executive branch. The reforms highlighted the need to replace the Attorney General’s Office (Procuraduría General de la República, PGR) with a new body to combat issues of inefficiency and ineffectiveness. Formalized on January 18, 2019, in what a Washington Office on Latin America (WOLA) report described as “an accelerated process without civil society participation or a true assessment of the candidates,” Mexican Congress, specifically the Senate, chose Alejandro Gertz Manero to assume the role of the first national prosecutor, a position he will hold for nine years. Therefore, given that this new institution is still in its infancy, it remains critically important to evaluate the progress that has been made over the last two years.

Source: México Evalúa, ENVIPE.

Broader demand for an autonomous National Prosecutor’s Office (FGR) can be understood through some rather notable figures. For example, according to INEGI (The National Institute of Statistics and Geography) data cited in a 2019 report by México Evalúa, one of Mexico’s premier think tanks, 93.2% of crimes went unreported or uninvestigated (cifra negra) in 2017 —  that is to say, just over nine out of ten crimes that occurred in the country were not investigated by law enforcement institutions (see figure on the right). The creation of the FGR constitutes one of the most difficult challenges for the transformation of Mexico’s criminal justice system since the 2008 constitutional law reforms on security and justice. The recent prosecutorial reforms attempt to ensure[1]  that the first national prosecutor, working in tandem with special prosecutors for investigating electoral crimes, human rights violations, corruption cases, etc., function independently of the president and his inner circle, and possess the necessary experiences and capabilities to thoroughly investigate the aforementioned offenses. Correspondingly, given these aims, there have been points of both progress and concern.

Analysis

Initial Perceived Progress

Though recent consensus indicates that the FGR has not achieved its full potential, the “implementing law” of the FGR encouraged a sense of hope and initial perceived progress among Mexican citizens longing for robust accountability mechanisms and oversight, particularly civil oversight. The requirements included the presentation of a Criminal Prosecution Plan (Plan de Persecución Penal). This document outlines the types of cases the FGR will prioritize during investigations, prosecutions, litigation stages, etc., and recognizes the FGR’s various temporal goals. According to a 2020 WOLA report, the plan should essentially “allow observers to analyze whether or not the FGR’s investigative priorities are based on objective data and criminal analysis.”

The implementing law also discusses the creation of a Citizen Council for the FGR. The Citizen Council is a civilian-oriented body charged with offering insights and recommendations regarding the FGR’s performance. Though these judgments are non-binding, the national prosecutor must at least respond to them in some capacity, emphasizing the role of civil society and generating a mechanism of accountability for the national prosecutor. According to the implementing law, members of the Council must be identified within 30 business days after the appointment of the national prosecutor. As stated before, Gertz was appointed on January 18, marking a deadline of March 1, 2019. However, as of August 2020, the Senate still has not indicated its preferences for the five members who will comprise this important body.

Other structural and functional changes that initially sparked hope for progress include specialized prosecutors’ offices, which are meant to increase efficiency. The law additionally states that the nomination process for special prosecutors should be transparent, merit-based, and inclusive of civilian participation. Other requirements include a new investigative framework based on criminal patterns and trends instead of isolated cases; “mixed units” as an acknowledgment of the complexity of various crimes; and the authority of the FGR to assert jurisdiction over certain state-level investigations if ineffectiveness is observed.

Current Concerns

Source: El País

Gertz’s Performance

Though a principal goal of the transition to the FGR remains grounded in generating a sense of autonomy from the executive branch, the choice of Alejandro Gertz Manero as the country’s first national prosecutor appears somewhat contradictory, as noted by Americas Quarterly. Gertz served as President Andres Manuel López Obrador’s security advisor throughout his presidential campaign, setting a dangerous precedent for the young institution’s future. Furthermore, over the past 18 months, National Prosecutor Gertz has struggled to realize the most essential components of his mandate. He has illegally appointed special prosecutors, limited opportunities for citizen participation, and announced certain reform efforts that some view as “inherently incompatible” with the spirit of Mexico’s oral adversarial criminal justice system. According to El Economista, Gertz appears distant, failing to meet with civil society organizations and selectively privileging high-profile cases. Furthermore, as detailed by Animal Político, NGOs, such as the Foundation for Justice and the Democratic State of Mexico (FJEDD), which participates in the #FiscalíaQueSirve (author’s translation: “Prosecutor’s Office that Serves”) collective, warn that Gertz’s Criminal Prosecution Plan fails to comply with legal procedures.

WOLA reports that Gertz’s Criminal Prosecution Plan presents many concerns and violations with respect to the implementing law. Firstly, proposals have not been supported by objective data and ignore the new investigative model based on greater criminal phenomena and trends, privileging the old and inefficient method of investigating based exclusively on the type of crime. In looking at the factors that influence institutional performance, many important elements remain excluded, such as analyzing the factors that hinder victims’ abilities to participate in the investigation of their respective cases. Additionally, crimes that have some of the most detrimental consequences for Mexican society, such as femicide, remain absent from the FGR’s priorities. Finally, and perhaps most importantly, in identifying the FGR’s strengths and weaknesses, the plan describes the implementing law as a weakness. Paradoxically, it is described as “incompatible with the FGR’s fiscal and investigative functions,” even though the implementing law is, itself, the document that legally mandates the institution’s fiscal and investigative responsibilities.

Source: México Evalúa, ENVIPE.

General Concerns

Outside of Gertz’s performance, several other elements generate concern about the FGR’s ability to transform into an effective institution and set important precedents early on. One of the most prominent elements centers around budgetary concerns. According to a México Evalúa analysis, data from 2019 elucidate that fewer resources were allocated for the transition to the FGR than for the maintenance of the operational structures of the PGR. This finding is also mirrored by a more comprehensive 2019 México Evalúa report. As noted by the Mexican think tank, in 2019, the FGR’s budget remained smaller than any other budget the PGR had been presented with since 2008. Furthermore, as stated by WOLA, “while the FGR was allocated a 14.5 percent budget increase in 2020,” adding up to a little over $13 billion pesos, which is still one the lowest budgets since 2011 (see figure on the right). Furthermore, only 0.11% of the budget has been allotted to the transitional body charged with outlining the PGR-FGR transformation in a manner that is in accordance with the implementing law.

Moving forward, it will remain critically important to continue to evaluate the National Prosecutor’s Office’s performance. Its infancy marks a critical juncture in which important precedents can and will be set. Thus, in order to achieve the independent, rights-respecting institution the public hoped for, emphasis should be placed on initiatives, such as increasing civil society participation in the final stages of the Criminal Prosecution Plan, especially considering the absence of the Citizen Council.

Sources

Angel, Arturo. “Senado revisa plan anticrimen del fiscal Gertz; ONG advierten que es ilegal.” Animal Político. February 10, 2020.

Indacochea, Úrsula, Maureen Meyer. “The Implementing Law of Mexico`s National Prosecutor’s Office: Progress and Pending Issues.” Washington Office on Latin America and Due Process of Law Foundation. March 2019.

Jaime, Edna, María Novoa, Carlos De la Rosa Xochitiotzi, Chrístel Rosales Vargas, Monserrat López Pérez, Janet Kuri, et al. De PGR a FGR: Lineamientos hacia la Transición. México Evalúa. 2019.

Jaime, Edna, María Novoa, Carlos De la Rosa Xochitiotzi, Crístel Rosales Vargas, Monserrrat López Pérez, Miguel Emilio La Rota Uprimny, Pablo García, et al. “De PGR a FGR: Observatorio de la transición 2019.” México Evalúa. 2019.

Rosales, Chrístel. “La Fiscalía busca un refugio para su ineficiencia.” México Evalúa. March 12, 2020.

Sánchez Mercado, Andrea. “El rumbo de la Fiscalía General está escrito en el Presupuesto.” México Evalúa. December 30, 2020.

Velázquez, Marisol. “ONGs piden a la FGR participar en Plan de Persecución Penal.” El Economista. November 4, 2019.

Washington Office on Latin America. “Where Does Mexico Stand in Its Fight Against Impunity? New Autonomous National Prosecutor’s Office Has Yet to Realize its Potential.” Washington Office on Latin America and Due Process of Law Foundation. August 2020.

Witte, Eric A. “Why AMLO’s Security Plan Is Just More of the Same.” Americas Quarterly. February 7, 2019.

United States Will Drop Charges against Former Mexican Defense Minister Cienfuegos

Photo: Bill Robles, Associated Press

11/18/20 (written by rkuckertz) – In an abrupt and unexpected reversal, the United States Department of Justice has announced that it will drop all drug trafficking and money laundering charges against Former Defense Minister Salvador Cienfuegos Zepeda. The announcement came as a shock after a months-long investigation led to the secret indictment and subsequent arrest of Cienfuegos by U.S. officials.

The former defense minister (2012-2018) was arrested in Los Angeles on October 15, 2020 after he was indicted on various drug trafficking and money laundering counts, including conspiracy to import and distribute heroin, cocaine, methamphetamine, and marijuana. The arrest shocked the Mexican public, as Cienfuegos is the first high-ranking Mexican military official to be arrested in the United States in connection with organized crime. The evidence against him pointed to his involvement with the H-2 cartel in exchange for bribes. Blackberry messages obtained by U.S. investigators detailed these alleged crimes, which included facilitating drug shipments into the United States and introducing cartel members to officials willing to accept bribes. Following his arrest, the former security official was transferred to a New York detention facility where he awaited trial in New York’s Eastern District.

However, in a joint statement released on Tuesday, U.S. Attorney General William Barr and his Mexican counterpart, Alejandro Gertz Manero, announced the planned dismissal of all charges against Cienfuegos. The attorneys general explained that the decision represented “a strong law enforcement partnership” between the two countries and demonstrated a “united front against all forms of criminality.”

U.S. prosecutors submitted an initial request on Monday before District Court Judge Carol Amon calling for the dismissal of charges. Prosecutors cited “sensitive” foreign policy considerations that outweighed U.S. interests in continuing to press charges against Cienfuegos. While Cienfuegos was scheduled for an initial hearing this Wednesday, it is anticipated that the official request to drop all charges will be granted during his court appearance.

Why Drop Charges?

According to The Washington Post, it appears that the decision was made in an attempt to repair a breach of trust caused by Cienfuegos’ arrest–a move that U.S. officials kept secret from Mexican authorities. Following the arrest, Mexico submitted a formal note of protest to the U.S. Department of Justice. Mexico’s foreign minister Marcelo Ebrard also expressed the country’s disapproval directly to Attorney General Barr on two occasions over the past month. Several U.S. officials agreed that the unilateral approach to Cienfuegos’ arrest was misguided. For instance, retired Army General Barry McCaffrey, the former head of the Office of National Drug Control Policy, called the move “very odd,” adding that he would have expected Mexican authorities to be informed prior to the arrest.

Some Mexican security experts believe that had the United States not returned Cienfuegos, the Mexican army would have ceased all bilateral cooperation on counter-drug and security operations. Similarly, prosecutors in the U.S. attorney general’s office in the Eastern District of New York speculate that the dismissal of charges can be attributed to threats to limit the role of the Drug Enforcement Administration (DEA) in Mexico. Ebrard seemed to confirm these notions, stating that bilateral cooperation against drug trafficking would continue, but only if the United States respected Mexico’s sovereignty.

Still, the decision to drop charges against Cienfuegos is unprecedented. Mike Vigil, the former DEA chief of foreign operations, told The Los Angeles Times that he “…had never seen anything like this occur in [his] lifetime.” He also expressed doubt that Mexican authorities would fulfill their commitment to prosecuting Cienfuegos, adding that he considers the likelihood of this “slim to none.” While the joint statement released by Barr and Gertz Manero noted that the United States would provide evidence to Mexico for its ongoing investigation, Mexican judicial authorities have not made any official commitments to charge Cienfuegos.

Defending Mexico’s Military

While former defense minister Cienfuegos served under AMLO’s predecessor, Enrique Peña Nieto, President López Obrador has demonstrated approval of the military leader’s role in leading the armed forces through times of crisis and upheaval. During the transition between administrations, AMLO called Cienfuegos “an extraordinary general, a man of institutions.”

Under the current administration, President Andrés Manuel López Obrador (AMLO) has gone to great lengths to defend the use of Mexico’s military in the fight against organized crime. A cornerstone of his anti-corruption platform, AMLO has sought to expand the role of the military in policing and security operations. Despite human rights concerns expressed by civil society and international organizations, Mexico’s citizenry seems to support López Obrador’s militarized tactics against organized crime. However, it remains to be seen if recent allegations of corruption against top military officials will sway public opinion. This may depend, in part, on how Mexico chooses to proceed with the investigation and case against Cienfuegos.

For his own part, AMLO has made sure to draw a stark contrast between military operations under Peña Nieto’s administration and his own. He has defended both the Secretariat of National Defense (SEDENA) and the Mexican Navy (SEMAR) as institutions that have ensured the security of the Mexican public. Nonetheless, individuals directly connected to the former defense minister Cienfuegos continue to operate within Mexico’s security apparatus.

Sources

“US to Drop Drug Charges against Mexico’s Former Defence Chief.” Aljazeera. 18 November 2020.

Brooks, David. “EU retira cargos a general Cienfuegos; se le investigará en México.” La Jornada. 17 November 2020.

Ferri, Pablo. “EE UU retira los cargos al exsecretario de Defensa Salvador Cienfuegos para que sea juzgado en México.” El País. 17 November 2020.

“Joint Statement by Attorney General of the United States William P. Barr and Fiscalía General of Mexico Alejandro Gertz Manero.” The United States Department of Justice, Office of Public Affairs. 17 November 2020.

Kuckertz, Rita E. “Former Mexican Defense Minister Salvador Cienfuegos Zepeda Arrested by U.S. Officials.” Justice in Mexico. 19 October 2020.

McDonnell, Patrick J. & Kate Linthicum. “In a Stunning Reversal, U.S. Drops Charges against Mexico’s ex-defense Chief.” The Los Angeles Times. 17 November 2020.

Mosso, Rubén & José Antonio Belmont. “A petición de la FGR, EU se desiste de cargos contra Salvador Cienfuegos.” Milenio. 17 November 2020.

Sieff, Kevin; Mary Beth Sheridan; & Matt Zapotosky. “U.S. Agrees to Drop Charges against Former Mexican Defense Minister.” The Washington Post. 17 November 2020.

Krauze, León. “The Arrest of a Mexican General Should Be a Turning Point for AMLO and the War on Drugs.” The Washington Post. 22 October 2020.