Criminal Law And The Criminal Code In Mexico

Criminal Law and the Criminal Code in Mexico

Introduction

In many ways, the Mexican criminal justice system is overloaded, is outdated and dysfunctional. In 2008, the reforms were approved by the Mexican Congress in an effort to correct many of these problems through the introduction of significant changes in the framework of criminal justice, as traditionally conceived in Mexico in Mexico. The so -called New Criminal Justice System of Mexico (new criminal justice system, NSJP) establishes a new set of procedures to judge the cases, allowing both the prosecutor and the defending lawyer to present evidence and arguments and equal parts beforean impartiality. and independent judge, as well as other changes that protect the rights of the accused and allow a more efficient processing of criminal cases. The implementation of the reforms by the Mexican Government is being carried out by the Coordinating Council for the Implementation of the Criminal Justice System (CCISJP) and its Technical Secretariat (Technical Secretariat, Setec) within the Ministry of Interior of Mexico. The implementation of the state level reforms was carried out in three stages: early adopters (before 2008), adopters after reform (Post-2008) and states still pending adoption. Several states had begun to implement oral and contradictory criminal procedures before the reform ordered by the federal government in 2008. 

The first three adopters who approved and initiated the use of adverse oral procedures before the federal reform were Chihuahua (2007), Oaxaca (2007), and Nuevo León (2004) The transition to this new system has required a great effort and substantial resourcesTo convert judicial facilities, improve technology and train the personnel of the judicial system.

Since 2008, the Mexican federal government has spent approximately $ 3 billion to support the efforts of state governments for the transition to the new system, and the United States government has provided additional help for these efforts throughThe Mérida initiative.

Initially, reform efforts were plagued with delays and insufficient resources. It had been starting the new system for more than six years at the federal level. In May 2013, the Federal Judiciary Council (CJF) developed a well -structured and gradual phase master plan, and has been working for implementation, although with some challenges and continuous delays.

In an effort to bring the reform to its term before the deadline of June 18, 2016 constitutionally binding, the current administration of President Enrique Peña Nieto has taken a series of actions to launch the reform initiative, including the introductionof a new unified Code of Criminal Procedure (CNPP) in 2014 and a significantly greater assignment of efforts and resources for the reform effort towards the implementation than under the previous administration. 

In 2013, the first full year of the administration of Peña Nieto, only around 630 of the approximately 2,400 municipalities of Mexico, approximately 25%, were fully operating the reforms. However, progress towards implementation by Judicial District has accelerated significantly in recent years. By June 2015, more than half of the municipalities were in judicial districts in full functioning with the new criminal procedure model, and more than half of all Mexicans lived in municipalities where the reforms had been implemented entirely.

Despite this progress, many states were delayed in the implementation of reforms in some or in most judicial districts and / or in some categories of crimes. Since some states made the transition to oral adverse criminal procedures only for some categories of crimes, other categories of crimes can still fall under the traditional system. In addition, recent progress in judicial reform efforts has been overshadowed by the management of the president of the security situation of Mexico and human rights violations, such as the massacre of dozens of students and protesters in 2014 in Ayotzinapa, Guerrero.

Developing

Mexico is in the process of implementing an important reform of its criminal justice system. In recent years, Mexican officials have gradually working to implement a series of reforms that were approved on June 18, 2008 by the Mexican Congress, which allowed a period of implementation of eight years. The main objective of these reforms focuses on the legal procedures used in criminal cases. The traditional criminal procedure model of Mexico, known as a system of ‘mixed inquisition’, is based largely on the formal presentation of documents, gives prosecutors the role of the protagonist and offers relatively limited protections for the rights of the defendants.

Critics of the Mixed Inquisition System of Mexico argue that the result is an extremely slow and strongly biased process that simultaneously allows many criminals to evade prosecution, while it also causes many suspects to be ‘alleged culprits’. Among other significant changes, the new criminal justice system the criminal justice reforms provided in 2008 for Mexico seeks to achieve a more transparent and efficient procedure for the administration of justice, strengthen the rights of the accused through a greater legal processand provide greater transparency and controls in the judicial sector. As part of this renovated system, the new criminal procedures of Mexico include provisions aimed at reducing the expensive dependence on preventive detention for minor crimes;allow the timely presentation of the tests;protect the rights of victims and suspects of crimes;reduce pending cases in the judicial system;and, in general, increase the general effectiveness of the criminal justice system.

Corporate criminal responsibility has existed in Mexico, one way or another, for more than a decade. After the amendments of 2016, Title X, Chapter 2 of the National Code of Criminal Procedure established the basis for the criminal responsibility of legal persons. According to this chapter, legal entities are criminally responsible for certain crimes listed in article 11 bis of the Federal Criminal Code and only after the conclusion that the company did not comply with its own internal controls.

The crimes listed include: public health and financial crimes, money laundering, terrorism, people traffic, influence peddling, domestic corruption and transnational corruption, among others. Like the Criminal Code, the General Law of Administrative Responsibility prohibits influences and corruption traffic, but extends the scope of the responsibility of legal persons to include violations in the public procurement process by adding the following serious crimes: 

• illegal participation in public procurement
• use of false information
•  collusion.

The law applies to both the behavior that occurs in Mexico and to the transactions made outside of Mexico where Mexican persons or entities are directly or indirectly involved. Although the language used in each of these laws is slightly different, since it is subject to the responsibility of either, the representative or agent of a legal entity must commit the crime or crime using corporate media, andmust act in the name of the legal entity or for use. benefit. According to the National Code of Criminal Procedure, the declared legal persons may be subject to one or more of the following sanctions: 

• Fines, 
• confiscation,
• Publication of the criminal judgment 
• dissolution.

In the judgment, the courts must consider several factors to determine the applicable sanction, including the degree of responsibility, the magnitude of breach of internal policies, the damage caused, the annual income of the entity, etc. To order the dissolution of the company, the judges must consider more thoroughly if such a measure is necessary to protect national interests or public safety, or if necessary to avoid risks to the national economy or public health. The new article 11 of the Federal Criminal Code echoes this provision but also establishes the suspension, not only the dissolution, as a sanction when necessary for national security purposes.

Article 11 bis establishes the limits to the suspension of 6 months to 6 years, the disqualification for up to 6 years and a judicial supervisor for up to 6 years. The Federal Criminal Code allows courts to reduce applicable sanctions by up to 25 percent when: 

1. Before the crime commission, the legal entity had a permanent control agency in charge of compliance 
2.  The company mitigates the damage caused by criminal conduct, either before or after the crime was committed.

Surprisingly, the sanctions for legal persons in the General Law of Administrative Responsibility are, in some way, more severe than those found in the Federal Criminal Code. Companies that have committed a serious administrative crime are subject to: 

• the return of twice the benefits obtained
•  The disqualification of up to 10 years
• The suspension of activities for up to three years
• the dissolution, and / or (v) restitution. 

It is worth reiterating that a company can be considered responsible for a serious administrative crime only if the people who committed the underlying behavior act in their name and to their benefit.

Under the Federal Criminal Code and the National Code of Criminal Procedures, the breach of a company of its internal controls is an element of the crime, while, under the General Law of Administrative Responsibility, the “Integrity Policy” of a company is amitigator factor. in account when imposing sanctions on legal persons.

In many ways, the Mexican criminal justice system is overloaded, is outdated and dysfunctional. In 2008, the reforms were approved by the Mexican Congress in an effort to correct many of these problems through the introduction of significant changes in the framework of criminal justice, as traditionally conceived in Mexico in Mexico. The so -called New Criminal Justice System of Mexico (new criminal justice system, NSJP) establishes a new set of procedures to judge the cases, allowing both the prosecutor and the defending lawyer to present evidence and arguments and equal parts beforean impartiality. and independent judge, as well as other changes that protect the rights of the accused and allow a more efficient processing of criminal cases.

Background

Criminal justice systems that are relatives for people in Britain, the United States, Canada and other customary law systems use what is known as a ‘contentious’ criminal procedure model. Under the confrontation model, the evidence and arguments are presented by the parties to the conflict (a prosecutor and a defense lawyer of the accused) before an hearing that is presumed neutral (that is, a judge or a panel of judges, and in somecases a jury), which issues a verdict and, if the fault is determined, a sentence. There are approximately 70 customary law systems in the world, most of which are based on the contradictory model of the criminal procedure, which is common in the old British colonies.

As a result of the Roman and subsequent Napoleonic influences, France, Spain, Mexico and other more than 100 countries adhere to the tradition of civil law and, in general, they are based on some variant of the ‘Inquisitorial’ model of criminal proceedings of criminal procedures. Under the inquisitorial model, an instruction judge directs the investigation of a crime, as well as the process of determining the guilt or innocence of a suspect. This system is based on a basic presumption that the judge represents not only the State but also the public interest, and therefore acts in good faith to seek justice. Like other criminal justice systems in Latin America, the Mexico system differs significantly from the traditional inquisitive system used in the European continent, partly due to the legal innovations that occurred after independence on both sides of the Atlantic.

In Mexico, the changes introduced in the criminal procedure were such that they are often described as an ‘mixed’ inquisitive system. Among the most unique and important innovations in the Mexican system is the fact that the function of the instructional judge was eliminated at the beginning of the 20th century and, partly from the example of the United States, the prosecutor’s function expanded considerably. The investigation and administration of justice.Thus, under the traditional system of Mexico, the prosecutor supervises the functions of the detective police work and also plays a central role in the accusatory process of Mexico, as is the case in many adverse systems. However, under the traditional system of Mexico, the role of the defense lawyer remained more limited than in the case of the confrontation model. Therefore, the traditional Mexico system has depended on the faith of the public (public faith) that the prosecutor will behave honestly and in the best interest of all parties involved. However, critics of the Mixed Inquisitorial Justice System of Mexico argue that the prosecutor’s role is too powerful and without opposition to provide adequate control and authority controls, resulting in generalized abuses often serious.

As in other inquisitorial systems, there is also some contradictory presentation of arguments in the traditional criminal justice system of Mexico during the last phase of the process. In that phase, the Court issues a final judgment (trial), after receiving the final oral arguments (conclusions) of both the accusation and defense. However, during the majority of the phases of investigation and trial, the defense has little or no opportunity to file and challenge the actions of the prosecutor or the presentation of evidence. Since jury trials are not used in Mexico, the judge must determine the guilt or innocence of the accused and decide the appropriate sentence for the crime, but there is a strong tendency to presume guilt because this often this is so. The same judge who found sufficient cause to proceed with criminal investigation at the beginning of the process by issuing a sentence, his decision is almost completely based on the evidence presented by the prosecutor as a result of that investigation, which allows a significant potential for partiality.

Meanwhile, there are other concerns. The presentation of much of the evidence is complicated because it is reviewed by the judge in the form of written affidavits (minutes or actions), which leads to long delay, in some cases years, in the administration of justice. In addition, since prosecutors are legally obliged to investigate and pursue all cases that cross their desk (and cannot choose to suspend the processing of cases they consider of little importance), the system is overloaded. In addition, the use of mandatory preventive detention for a large number of crimes, including non -violent crimes, means that many people accused of a crime pass the entire process after bars without a sentence. According to official estimates, the population of the prison ‘prior to trial’ represents more than 40 percent of all inmates in Mexico. As a result, people accused of a crime, whether innocent or guilty. In addition, in too many criminal cases in Mexico, prosecutors abuse their power and violate the ‘public faith’ forcing confessions, extracting bribes and manipulating evidence. In fact, as demonstrated by inmates, prosecutors are the personnel of the judicial sector that most likely are involved in acts of torture and physical abuse in the Criminal Justice System of Mexico. When forced confessions and improper conduct of the Prosecutor. Ultimately, the system is also strongly predisposed against poor people, who too often cannot pay a decent lawyer, much less bribble their way to freedom.

Code reform

The implementation of the reforms by the Mexican Government is being carried out by the Coordinating Council for the Implementation of the Criminal Justice System (CCISJP) and its Technical Secretariat (Technical Secretariat, Setec) within the Ministry of Interior of Mexico. The implementation of the state level reforms was carried out in three stages: early adopters (before 2008), adopters after reform (Post-2008) and states still pending adoption. Several states had begun to implement oral and contradictory criminal procedures before the reform ordered by the federal government in 2008. The first three adopters who approved and initiated the use of adverse oral procedures before the federal reform were Chihuahua (2007), Oaxaca (2007), and Nuevo León (2004).

The transition to this new system has required a great effort and substantial resources to convert judicial facilities, improve technology and train the personnel of the judicial system. Since 2008, the Mexican federal government has spent approximately $ 3 billion to support the efforts of state governments for the transition to the new system, and the United States government has provided additional help for these efforts throughThe Mérida initiative. Initially, reform efforts were plagued with delays and insufficient resources.

It had been starting the new system for more than six years at the federal level. In May 2013, the Federal Judiciary Council (CJF) developed a well -structured and gradual phase master plan, and has been working for implementation, although with some challenges and continuous delays.

In an effort to bring the reform to its term before the deadline of June 18, 2016 constitutionally binding, the current administration of President Enrique Peña Nieto has taken a series of actions to launch the reform initiative, including the introductionof a new unified code. of Criminal Procedure (CNPP) in 2014 and a significantly greater assignment of efforts and resources for the reform effort towards the implementation than under the previous administration. In 2013, the first full year of the administration of Peña Nieto, only around 630 of the approximately 2,400 municipalities in Mexico, approximately 25%, were operating the reforms in its entirety.

However, progress towards implementation by Judicial District has accelerated significantly in recent years. By June 2015, more than half of the municipalities were in judicial districts in full functioning with the new criminal procedure model, and more than half of all Mexicans lived in municipalities where the reforms had been implemented entirely. Despite this progress, many states were delayed in the implementation of reforms in some or in most judicial districts and / or in some categories of crimes. Since some states made the transition to oral adverse criminal procedures only for some categories of crimes, other categories of crimes can still fall under the traditional system.

In addition, recent progress in judicial reform efforts has been overshadowed by the management of the president of the security situation of Mexico and human rights violations, such as the massacre of dozens of students and protesters in 2014 in Ayotzinapa, Guerrero. They have not started yet and a large number of judicial districts throughout the country are still operating under the traditional criminal processal model of Mexico. In addition, there are still serious concerns about the persistent problems of crime and violence in Mexico and the ability of the new system to address these problems effectively. Therefore, although many consider that the reform of the judicial sector is indispensable to achieve the rule of law in Mexico, the future of the Mexico’s criminal justice system, and its possible effects, remain uncertain.

conclusion

In general, the magnitude of the changes that Mexico has undertaken to reform its judicial system is enormous, and the possible implications of this reform effort could generate important improvements in the coming years. The authors offer four main recommendations to maintain recent progress in judicial reform: o The Mexican Congress must force the country to carry out continuous progress in the judicial reform by establishing a deadline for an exhaustive review of the National Code of Criminal Procedure in 2024. or the Mexican Congress must require all public judges, prosecutors and defenders who obtain specific training or a specific number of hours of continuing education every year to exercise law under the new system and act to establish a system of accredited university programs andgovernment scholarships to support training. In oral, contentious litigation or the agencies of the Mexican government, such as the SETEC within the Ministry of Interior or the National Institute of Criminal Sciences (INACIPE) within the Office of the Attorney General, they must generate and disseminate indicators of the performance of the judicial system, andGrant subsidies to universities, research institutes and non -governmental organizations. Organizations that can help in the evaluation and evaluation of the new criminal justice system. or the US government. UU., Foreign governments and international organizations and foundations provide financing and support to continue the judicial reform efforts in Mexico, including funds to support legal surveillance organizations that work to defend the rights of victims, prisoners, complainants andEven operators. In the criminal justice system.