Antes y después: New Working Paper

09/30/20 (written by lcalderon) – Justice in Mexico, a research-based program at the University of San Diego, released a working paper by Juan García Cruz entitled, “Antes y Después: Análisis comparativo de casos de sistema de justicia penal tradicional y del sistema acusatorio”. The study is a result of the #compara project that compiles a series of indicators curated by Justice in Mexico as part of the “Justicia en Marcha” initiative to measure the implementation and consolidation of the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA). Specifically, the paper compares and analyzes some of the main procedural differences between the Traditional Inquisitorial Criminal Justice System (Sistema de Justicia Penal Tradicional Inquisitorio) and the SJPA. To make this comparison possible, the author draws on three specific cases that share important similarities and were processed under the two different criminal justice systems. The results suggest that there is an apparent consolidation of the SJPA —at least from an analytical perspective— that allows several benefits that were not possible under the traditional system.

In order to select the cases to compare, García Cruz developed a methodology that consisted in finding cases from both criminal justice systems that were as similar as possible and allowed to highlight some of the key elements of each process. The main criteria evaluated were:

  • Type of crime
  • Number of defendants
  • Conclusion of the criminal proceeding (oral trial or ordinary process)

After describing the selection process, García Cruz analyzes the compiled information. For the traditional system, the author needed to conduct an exhaustive revision of all court records or each case. For the SJPA, the author conducted an extensive record analysis as well as reviewing court recordings for each case. Based on this analysis, García Cruz identified 7 main indicators that allowed comparing the different procedures for each system:

  • Evidence
  • System principles
  • Process duration
  • Victim treatment and the role of the complaining party
  • Volume (size of the court records)
  • New figures
  • Judges’ impartiality

The working paper examines the procedural differences in three crime types: kidnapping and organized crime; fuel theft; and crimes against public health.

Methodology for selecting the compared cases

Main Findings

Evidence

  • Most of the evidence presented under the SJPA consisted of testimonies. Documents and court records are not considered in the SJPA unless they are mentioned and properly incorporated by the appropriate party during direct examination.
  • Under the traditional system, most of the evidence consisted of written documents and statements. In addition, the evidence value of such statements was pre-determined under the Criminal Procedures Code (Código de Procedimientos Penales).
  • Presenting testimonies under the SJPA allowed for the participating parties to conduct direct and cross-examinations to the witness, a benefit that was not possible under the traditional system.
  • The total amount of evidence presented under the SJPA was significantly lower than in the traditional system. In addition, evidence under the traditional system was diverse and consisted of statements, testimonies, testimony complements and additions, court records and official documents, and ratifications, while under the SJPA most of the evidence consisted of testimonies.

Figura 1: Pruebas (Comparativo I)

Total amount of evidence under the traditional system and the SJPA for kidnapping and organized crime

Figura 2: Pruebas (Comparativo II)

Total amount of evidence under the traditional system and the SJPA for fuel theft

Figura 3: Pruebas (Comparativo III)

Total amount of evidence under the traditional system and the SJPA for crimes against public health

System principles

  • Cases analyzed under the SJPA emphasize the presence of main system principles such as: contradiction and immediacy.
  • While procedures under the traditional system were considered public, institutions often denied the presence of external people. Under the SJPA, the public is welcome to attend,including the defendant’s family and law students.
  • In cases under the SJPA it was also possible to identify the principles of consolidation and continuity.

Process duration

  • In the three comparisons, cases under the SJPA required less time than cases under the traditional system.
  • In terms of complementary investigations, all SJPA procedures were concluded before the legal six-months limit. This limit was not met on cases under the traditional system, resulting in significant delays in the process.

Victim treatment and the role of the complaining party

  • In the kidnapping and organized crime case under the SJPA, all victims intervened through their legal advisors throughout the process and had their image protected (blurred) during the oral trial, where they provided testimony from a different courtroom. Under the traditional system, however, victims were required to face their aggressors, allowing re-victimization.
  • The role of the legal advisor was key in cases under the SJPA, where they were able to be in all the proceedings, offer evidence, and examine witnesses, among other benefits that were not possible under the traditional system.

Volume (size of the court records)

  • The orality factor of the SJPA allowed for smaller court records, while the traditional system required all in writing, making up large volumes of court records.
  • In addition, cases under the SJPA have their court proceedings recorded on video, rather than paper.

Figura 7: Volumen (Comparativo I)

Volume Comparative I
Total number of pages in court records for kidnapping and organized crime

Figura 8: Volumen (Comparativo II)

Volume Comparative II
Total number of pages in court records for fuel theft

Figura 9: Volumen (Comparativo III)

Volume comparative III
Total number of pages in court records for crimes against public health

New Figures

  • Judges under the SJPA are required to ensure the right to adequate defense, giving them the authority to substitute the defense if they do not meet the standard. Under the traditional system, defendants could be represented by a trustee without requiring the legal certifications to provide an efficient defense.
  • In the case of crimes against public health, there was also the use of stipulations of facts under the SJPA. This allows the court to disregard incontrovertible facts and focus the debate to make the process faster.

Judges impartiality

  • In cases under the SJPA, judges were not involved in the previous stages of the oral trial, allowing them to resolve the matters based on facts presented during the proceeding. Under the traditional system, the same judge was in charge of preliminary proceedings and sentencing, making it complicated for the judge to stay unbiased and reconsider his rulings.

Final thoughts

Lastly, the author offers a series of final considerations, emphasizing the importance of studying and understanding the different nature of both systems in order to measure the consolidation of the SJPA and assess the benefits presented by the accusatorial system.

About the author:
Juan García Cruz is a Mexican attorney. He graduated from the School of Law at the National Autonomous University of Mexico (UNAM) where he also completed a graduate diploma on Criminal Law. Mr. García studied
Criminalistics, and got a Masters of Criminal Procedural Law and Oral Trials by the Universidad Analítica Constructivista de Mexico (UNAC). He is a Research Associate at the University of San Diego’s Justice in Mexico
Program. He has collaborated with non-governmental organizations dedicated to human rights training and analysis of the criminal justice system in Mexico. He has also actively collaborated at UNAM’s Human Rights Program. Currently Mr. García is an Auxiliar de Gestión Judicial at the Federal Criminal Justice Center Mexico City. His academic and professional interests include criminal justice, transitional justice and human rights.

¿Dónde están los datos?: New Working Paper

06/30/20 — Justice in Mexico, a research-based program at the University of San Diego, released a working paper by Héctor Esteban García García entitled, “¿Dónde están los datos? Reflexiones, conclusiones y retos en la compilación de indicadores de desempeño del Sistema de Justicia Penal Acusatorio.” The study is a result of the #encifras project that compiles a series of indicators curated by Justice in Mexico as part of the “Justicia en Marcha” initiative to measure the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA). Specifically, it analyzes the process of collecting such information and the conclusions that can be drawn from the data. It then highlights the challenges that the SJPA faces and offers several recommendations on ways to strengthen the system’s evaluation process. The results suggest that although some information is sufficiently shared, there is room for improvement. If tracking and reporting was completed on time and in full, it could ultimately strengthen the functioning of the SJPA.

García García describes the complex process employed to gather information related to the functioning of the SJPA. This consisted of identifying 49 indicators that could be used to track the use of specific penal system tools. This included indicators that reflect acts from the crime reporting stage, those that occurred during mediation or restorative justice when the case is not funneled through the whole judicial process, and those that occurred during the court stage (e.g., investigations initiated, oral trials, and courtroom sentences). He drew information on these indicators from 77 public documents spanning 20 Mexican states. He also conducted a series of information requests from the 33 attorney generals or public prosecutor’s offices, and from the 33 judiciaries (both state and federal). Additionally, from April 2018 to July 2019, García García filed requests, which led to 309,141 pieces of data submitted pertaining to the SJPA between 2012 and 2019. This allowed Justice in Mexico to create a robust dataset from which he could analyze the SJPA.

The working paper analyzes who actually shared information, from where, when, and in what quantity. Ultimately, 73% of attorney generals and public prosecutor’s offices and 76% of judiciaries submitted the requested data. Because a quarter of respondents did not share disaggregated information, the author had to aggregate the information using the common denominator to standardize the indicators. By lumping the indicators all into one state-wide yearly total, as 25% of the states did, this prohibits one from analyzing the SJPA’s functioning at the judicial district level based on each indicator. This ultimately hampers one’s ability to evaluate the SJPA and to make necessary improvements or modifications to strengthen the system.

The author also noted that on average, respondents only submitted 74% of the information that was requested. States in the north, south, and southeast of Mexico reported more information than those in central Mexico and along the Gulf Coast. Five states – Campeche, Durango, Hidalgo, Oaxaca, and Quintana Roo – submitted 100% of the information requested, whereas Guerrero and Querétaro only turned in about 10% each.

García García also highlighted the everchanging capacity and availability of judicial system operators to be able to respond to such information requests. Additionally, those that do respond oftentimes do not use consistent reporting mechanisms, thus making it difficult to analyze data trends over time. For example, the Aguascalientes’ Judiciary only reported 15% of information requested during the first solicitation, but jumped to 51% by the fourth. The State of México similarly increased from 30% reporting to 90% by the end. Other states’ reporting fluctuated, too, but in the reverse, going from higher reporting during the first few solicitations and dropping considerably over time.

Finally, the author noted that much of the data submitted was not detailed enough to allow for the sufficient evaluation of SJPA indicators. This included information pertaining to the use of pre-trial detention (prisión preventiva) and the lack of detail by some states on alternative justice methods used, such as mediation, reconciliation, and restorative justice, all of which are key components of the SJPA.

From the data collected, García García concluded several points about the SJPA’s use, functioning, and effectiveness throughout Mexico.

  • First, the data suggests that the tools that make up the penal system are more frequently used in northern, southern, and southeastern Mexico. When the tools are employed (e.g., oral trials, mediation), it results in quicker trials, reparation agreements, and ‘conditional suspension of the process’ (suspensión condicional del proceso), a special alternative justice procedure that suspends the process when the accused complies with a series of conditions and a reparation plan. The conditional suspension was ultimately found to be the most frequently used tool within the penal system nationwide.
  • Second, pre-trial detention (prisión preventiva) is still used in 38% of the cases when comparing it to the number of indictments reported (autos de vinculación a proceso). Pre-trial detention is used far more widely in some states (e.g., Michoacán, Sonora, Yucatán) than in others (e.g., Baja California Sur, Coahuila, Zacatecas). Still in 51% of the cases, pre-trial detention was mandated by law based on the crime (de oficio).
  • Finally, the information confirmed that oral trials were only used in about 11% of cases when considering the number of indictments reported. García García noted that this could be proof that one of the main objectives of the SJPA – to decrease the number of cases that go through to full trial – could actually be being achieved. Ultimately, the author concluded that judicial systems operators are not taking advantage of all of the penal systems’ tools.

Given the conclusions drawn from the data collected, García García identified three main challenges that face the SJPA.

  • The first he notes is making sure the National Transparency Platform (Plataforma Nacional de Transparencia) is functioning optimally. This platform is intended to be the avenue through which information requests are submitted and responded. Considering the inconsistencies and lack of comprehensive responses that the author received for this Working Paper, he highlighted the concern that civilians are being denied access to full information when they request it.
  • The second major challenge is the lack of instruments or avenues in place to guarantee that attorneys generals, public prosecutors, and judiciaries provide information when called upon. The author drew attention to the Unidades de Transparencia, or the governmental units that are intended to respond to these information requests, highlighting their limited operational capacities as a weakness in the system.
  • The third hurdle that faces the SJPA is the inconsistent reporting by states on penal system processes and tools, and the lack of accountability to ensure they properly and timely respond to information requests. In order to do so, the author suggests charging the Executive Secretariat of National Public Security (Secretariado Ejecutivo del Sistema Nacional de Seguridad Pública, SESNSP) or the National Institute of Statistics and Geography (Instituto Nacional de Estadística y Geografía, INEGI) – two agencies who regularly work with data and information – with overseeing the tracking and management of SJPA data. He also suggests the Legislative Branch become more involved, specifically reforming an article in the General Transparency Law (Ley General de Transparencia), among others, that currently leaves the states’ obligation to disaggregate data somewhat ambiguous.

The author offered three key reflections at the conclusion of the Working Paper.

  • First, he reiterated that the data used for this publication was incomplete due to the fact that nearly one third of all respondents did not submit comprehensive or uniform information. Therefore, it was insufficient to fully evaluate the level at which SJPA tools are being utilized and employed.
  • Second, the data showed that some SJPA tools are indeed used more regularly than others, such as the conditional suspension. Meanwhile, the common use of pre-trial detention is concerning.
  • Finally, García García concludes that the challenges of reporting timely and complete data need to be overcome so that analyses of the SJPA can truly focus on improving the system’s functioning and efficiency.

About the Author:

Héctor Esteban García García is a Mexican lawyer native from Aguascalientes. He graduated from the School of Law at the National Autonomous University of Mexico (UNAM) and is currently enrolled in a graduate program on Justice, Victims, and Peace Building at the National University of Colombia. He has collaborated with non-governmental organizations dedicated to human rights training and analysis of the criminal justice system in Mexico and has actively collaborated at UNAM’s Human Rights Program. Since 2016, he is a Research Associate at University of San Diego’s Justice in Mexico. His academic and professional interests include criminal justice, transitional justice, and human rights.

Leaked Reforms to Mexico’s Criminal Justice System Raise Serious Concerns

02/01/20 (written by kheinle) — Critics are fiercely pushing back against a package of proposed reforms to Mexico’s justice system made public in mid-January. Alejandro Gertz Manero, Mexico’s Attorney General (Fiscal General de la República, FGR), and Julio Scherer, the president’s chief legal adviser, prepared a draft of reforms that was leaked on January 15, 2020, causing immediate pushback from experts who argue it would fundamentally undermine the country’s criminal justice system and devalue human rights protections.

Background on Proposed Reforms

Mexico’s Supreme Court. Source: Supreme Corte de Justicia Nacional

The initiatives have been aptly referred to as contrarreforma, or counter reforms, giving reference to the overhaul of the judicial system in Mexico in 2008 through sweeping constitutional reforms. Critics argue that the draft reforms made public in January 2020 run counter to and undermine the 2008 reforms and subsequent implementation in 2016 of the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA). 

Still, the bills seek to address Mexico’s record-breaking levels of crime and violence. In 2019 alone, there were 34,582 murders – an all-time high – according to data reported by Mexico’s Secretary General of National Public Security (Secretariado Ejecutivo del Sistema Nacional de Seguridad Pública, SESNSP). The proposals would aim to reduce impunity and recidivism, writes Human Rights Watch, which is desperately needed in a country where only 2% of all crimes are resolved, according to a 2018 report by the United Nations. Attorney General Gertz added that they would also seek to address corruption and crime.

The bills are still in draft form, having not yet obtained the final approval from the Attorney General’s Office. They were expected to be presented in full to Congress in February, but there is no indication of when exactly that will be.

Main Concerns

Nevertheless, there are several key proposals put forth within the reforms that have created considerable pushback.

Arraigo

Justice in Mexico’s 2015 report, “Detention Without Charge.” Photo: Justice in Mexico.

Perhaps the most controversial change would be the expansion of the already fraught procedure of arraigo, a form of preventive detention. Under current Mexican law, suspects in organized crime cases can be held for up to 40 days without being charged while investigations unfold, and extend it to 80 days at the prosecutor’s request. In either case, prosecutors are required to obtain judicial authorization to detain a suspect under these conditions. The proposed reforms seek to expand upon this initial 40-day holding period by allowing “prosecutors to seek prolonged pre-charge detention for any crime, without bringing charges,” explains Human Rights Watch. This would also expand the current law that only allows arraigo in cases involving organized crime to now cover any crime.

Critics argue that this change would set the nation back in terms of the judicial and social reforms enacted the past few decades, specifically with the inauguration of the SJPA in 2016. Outspoken political analyst Denise Dresser commented on the proposals in an OpEd titled, “The Fourth Inquisition,” a play on President Andrés Manuel López Obrador’s movement, the Fourth Transformation. “If the authoritarian regression that he has in mind continues, the López Obrador government will return to a judicial and criminal system built on incarcerating innocents, manufacturing the guilty, and creating injustices,” she said. “The contrarreforma wants to do away with control judges that today value the legality of detention and care for the rights of the victims and the accused.”

Read more about arraigo in Justice in Mexico’s 2015 special report, “Detention Without Charge.”

Admissibility of Evidence

A second change put forth would make it easier for evidence obtained through illicit (e.g., torture, wiretapping) means to be used in courtroom proceedings. If ratified, the Mexican Constitution would shift from barring evidence obtained through the “violation of human rights” to now allowing judges the final say in whether or not to admit such evidence. As Human Rights Watch precisely notes, this amendment would undermine and effectively undo all of the change made to protect individuals’ human rights as part of Mexico’s 2017 General Law on Torture. While recognizing the law has not been implemented as quickly as was hoped, the progress made would still effectively be undermined by the proposed changes by making evidence received through torture more viable and utile in the courtroom.

Emilio Álvarez, a Mexican Senator and a rights activist, spoke out on the measure. “It is an extraordinarily regressive reform that seriously threatens human rights and processes given as basic, such as presumption of innocence.”

Mexico’s National Criminal Code and the New National Code of Criminal Procedures

Attorney General Alejandro Gertz Manero. Photo: Línea Directa.

The Constitutional Initiative (Iniciativa Constitucional) would amend 14 articles of the Mexican Constitution to allow for the changes expressed here (e.g., arraigo, admissibility of evidence, freedom of expression). It would also create a new National Criminal Code (Código Penal Nacional, CPN). Attorney General Gertz acknowledged the latter, announcing the proposal to create a uniform, singular criminal code, which would replace already-existing codes at the state and regional levels. Another part of the proposals would put in place a new National Criminal Procedural Code (Código Nacional Procesal Penal, CNPP).

In a January 2020 publication, “La Nuevo Iniciativa de Reforma Procesal Penal,” Michael Mandig, attorney at law in Arizona with extensive legal work in Latin America, cautioned against installing a new CNPP, the current version of which was entered into force in 2016. “Procedural changes of such proportions require cultural transformations, economic inversions, professional commitments, and societal acceptance; it cannot be implemented over night.” Mandig also commented on the proposal to eliminate the “intermediary stage” in criminal proceedings, thereby eliminating the division of responsibilities among judges and specifically that of the Control Judge (juez de control). This was a critical pillar in the creation of the SJPA, as Mexico moved towards a more accusatorial judicial system, as opposed to an inquisitorial model. By blending the judges’ roles together once again through the proposed CNPP reform, it will render the courts partial, argues Mandig.

Freedom of Expression

Another concern raised is the potential undermining of freedom of expression put forth in the reforms. According to Mexico’s Regional Director Leopoldo Maldonado of Artículo 19, an international human rights organization, the reforms would criminalize freedom of expression through charges of defamation, slander, and libel. “This is not only about journalism,” he said. “It is about any person’s right to exercise freedom of expression in this country, thereby running the risk of being charged with this type of crime.”

Next Steps

It is believed that President Andrés Manuel López Obrador’s party, the National Regeneration Movement (Movimiento Regeneración Nacional, MORENA), backed the leaked reforms. The president, however, denied being involved in or knowing about the draft reforms during one of his daily addresses to the nation. “I have not seen [the law]; I do not know of it. Therefore,” he said, “it has nothing to do with us.”

The full package of finalized reforms is supposed to be released in February, at which point Mexico’s Congress will take up the review.

Sources:

Deaton, Janice and Octavio Rodríguez. “Detention Without Charge.” Justice in Mexico. January 2015.

Human Rights Council 37th Session. “Report of the Special Rapporteur on the situation of human rights defenders on his mission to Mexico.” United Nations. February 12, 2018.

Mandig, Michael. “La Nueva Iniciativa de Reforma Procesal Penal – ¿Solución a la Impunidad o Receta para Desigualdad Procesal y Parcialidad Judicial?” No Volver al Sistema Inquisitorio. January 18, 2020.

Dresser, Denise. “La Cuarta Inquisición.” Diario de Yucatán. January 21, 2020.

Oré, Diego. “Critics warn sweeping Mexican judicial reform threatens human rights.” Reuters. January 23, 2020.

“Mexico: Justice System Proposals Violate Fundamental Rights.” Human Rights Watch. January 30, 2020.

“Defensores de derechos humanos combatirán ‘contrareforma’ judicial en México.” El Diario. February 1, 2020.

Mexican Congress approves changes to bail system, drawing criticism

Results of Senate vote on December 6, 2018.

The Senate voted 91 to 18 in favor of amending Article 19 of the Mexican Constitution on December 6, 2018. Source: Noticias Acapulco News

12/10/18 (written by Kimberly Heinle) — The Mexican Senate approved reforms to Article 19 of the Mexican Constitution on December 6 that expands the crimes for which one can be held without bail. Individuals accused of misusing public funds for electoral means, sexually abusing minors, and forcibly disappearing persons, among others, may now be held without bail. The reform passed the Senate with 91 votes in favor and 18 against.

Despite the broad approval, the legislation faced some opposition within the Senate, namely from those outside of the ruling political party, MORENA (Movimiento de Regeneración Nacional). Only one MORENA Senator, Nestora Salgado (Guerrero), voted against the reform. Salgado agreed with concerns expressed by the United Nations that the reform could lead to human rights abuses, particularly that of Mexico’s vulnerable populations. While debating the law, Salgado took to Twitter to express her stance. She said, “We are debating the new law #FiscalíaEficiente / Morena does not want more violence nor more impunity. We are in the Fourth Transformation, acting with ethics and respecting the task with which the public has entrusted us.” For its part, the United Nations argued that the practice of being held without bail goes against “the humans rights of liberty, personal security, a fair trial, due process, and judicial guarantees.”

CNDH President

National Commission of Human Rights (CNDH) President Luís Raúl González Pérez. Source: La Jornada.

Luís Raúl González Pérez, president of Mexico’s National Commission of Human Rights (Comisión Nacional de Derechos Humanos, CNDH), also criticized the reform. He called it a “regressive” initiative, arguing that Congress should have prioritized the training and professionalization of the justice system operators first. Otherwise, he added, any charge brought forth opens the door to the suspect being held indefinitely due to the inefficiencies of the system’s operators to provide swift justice.

Mexico’s court system has long been criticized for the lengthy times that the accused have been detained while their case is processed. The New York Times, for example, recently highlighted one individual who has been held without sentencing for over 16 years. One element of the Accusatorial Criminal Justice System (Sistema de Justicia Penal Acusatorio, SJPA) that seeks to mitigate situations like that is the limit it places on the amount of time a suspect can be detained before trial. This appears to now be at odds with the Senate’s recent approval.

Congress will evaluate the reform’s success and effectiveness in five years.

Sources:

Villegas, Paulina. “La justicia en México: dieciséis años en prisión, preventiva sin sentencia.” The New York Times. November 13, 2018.

Olivares Alonso, Emir. “Regresiva’, reforma para ampliar prisión preventiva: CNDH.” La Jornada. December 4, 2018. 

Ballinas, Víctor y Andrea Becerri. “Ampliar en el país la prisión preventativa, peligroso: ONU.” La Jornada. December 5, 2018. 

“Nestora Salgado, la única senadora de Morena que votó contra reforma de prisión preventiva.” SDP Noticias. December 6, 2018.