More than a legal system, Mexico maintains a legal “thicket,” in the words of José Luis Soberanes, director of the Institute of Legal Studies at Mexico’s National Autonomous University (Universidad Nacional Autónoma de México, UNAM) until late 1998.16 Mexico’s justice system reflects the federal nature of the country’s political system. Each of the country’s thirty-one states maintains an independent justice system, while a federal justice system handles federal crimes. In addition, multiple thematic tribunals exist on a federal and, often, a state level; separate tribunals exist for labor conciliation and arbitration, electoral issues, agrarian problems, and military matters, for instance. While each thematic tribunal operates under the jurisdiction of the executive branch, their decisions can be appealed on constitutional grounds to the federal court system.
Federal-jurisdiction crimes include drug trafficking and organized crime and human rights violations committed by federal authorities. Murder, robbery, and kidnapping fall under state jurisdiction.
Mexico’s justice system provides for expansive federal-court authority for reviewing the actions of government authorities and laws. The writ of amparo gives federal Mexican courts jurisdiction to entertain any case involving a violation of the Mexican federal constitution through a challenge filed before a federal district court. A challenge could also be made to review a final judgment rendered by a state court that allegedly misapplied state law. The benefit of amparo holds only for the individual case in which the writ was filed.
Since 1984, the federal government has invested in improving the federal system, increasing salaries, modernizing installations, and multiplying the number of courts throughout the country.17 For instance, Supreme Court legal precedents are available on CD Rom and the Internet, and the federal government compiles statistics on the issues handled by the federal courts.18 The degree to which state justice systems suffer resource problems varies markedly, but many lag far behind the federal; poor salaries, lack of typewriters and other materials, and a workload that far surpasses the ability of even the most capable judges are the norm.19 According to At the Door of the Law, a book of essays by Mexican lawyers onproblems with the country’s legal system, “All indications are that the double system of jurisdictions sharpens the deficiencies of the justice system. On the one hand, this regime does not even fulfill the stated purpose of its existence: that there be local, autonomous justice that is independent of the federal. On the other hand, the autonomy of local justice systems leaves them heterogenous in quality, efficiency, and the way they function in general.”20
According to the UNAM’s Soberanes, if the court system is to function properly, it would first need a major overhaul. In order to get to the heart of the problem, he argues, authorities would have to increase the budget of the state and federal court systems, with more and better-paid judges carrying less burdensome workloads. It would also be necessary to give them better training and to change the way they are named and promoted, in order to guarantee their independence from the executive branch and ensure that their job security did not depend on political caprice.21 And of course, better training and salaries would also be necessary for prosecutors, police, and public defenders.22 The overloading of prosecutors, for example, causes serious bottlenecks in Mexico City. While each prosecutor had to resolve sixty-three crimes per year in 1950, that number had gone up to 130 per year in 1980, 140 in 1990, and 219 in 1995,23 despite an increase in the total number of prosecutors.
Investigating Crimes and Prosecuting Criminals
Federal and state-level attorneys general’s offices contain what in Mexico is referred to as the “public ministry,” which is responsible for the investigation of crimes and prosecution of those responsible, including human rights violators. Through a process known as prior investigation (averiguación previa), the prosecutor investigates crimes and identifies the suspect or suspects based on physical evidence and interviews with witnesses, victims, and the accused. Once that is done, the case file is turned over to a judge, who may issue an arrest warrant. If the suspect is arrested in the act of committing a crime, the judge will simply certify that the arrest was legitimate. In either case, the suspect will then give a statement to the judge, known as a preparative statement (declaración preparatoria). Based on this information, the judge decides whether or not the prosecution should move forward. If the prosecution is to proceed, the prosecutor’s office continues gathering information. There are no jury trials in Mexico, and courts cannot conduct investigations on their own.
Mexico’s system of criminal prosecution has been criticized by analysts who maintain that it gives too much authority to prosecutors, who are empowered not only to investigate and obtain evidence but also to validate the evidence they find. According to such critics, prosecutors effectively act as judges, because the results of their actions are accorded the status of proof. That is, they not only seek information, they determine the role it will play in the prosecution. Further, prosecutors take these actions while responsible for prosecuting, not impartially judging the innocence or guilt of the accused.24 Given the inherently limited scope of this report, Human Rights Watch cannot explore this issue in depth.
Prosecutors are not responsible for investigating crimes alone; they work with judicial police, medical examiners, and other technical experts. In theory, the judicial police take orders from prosecutors, although in practice judicial police often appear to work on their own. Given a long history of abuses by judicial police, successive reforms have limited their authority in the investigative process. Prior to 1984, for instance, judicial police could initiate investigations, but now they may only work on cases assigned to them by prosecutors.25 Before 1993, statements taken by judicial police were admissible in court. Now only statements made before a prosecutor or judge can be so admitted. Although it was positive thatpolice lost the authority to take statements that would be admissible as evidence in court, the reform was insufficient; Human Rights Watch believes that only statements made before a judge should be admissible as evidence.
The Public Defender’s Office and “Person of Confidence”
Mexico’s constitution now ensures that all people subject to investigation or prosecution have the right to be assisted by a lawyer during investigative and trial-related proceedings. If a person cannot afford or does not wish to hire counsel, the court will appoint a public defender.26 Until 1993, legal defense was guaranteed only during the trial period, not during pre-trial proceedings such as the taking of statements by prosecutors; this was because the constitution only guaranteed the right to name a defender for pre-trial proceedings, not to have one. Constitutional reforms of 1993 then took precedence over the Supreme Court’s ruling that it was up to the detainee to seek a legal defender and that prosecutors could not be held responsible if no lawyer was sought.
Reforms in 1990 created what is called a “person of confidence,” an individual trusted by the detainee or declarant who may be present during questioning and other legal processes. If the person of conficence is not a lawyer, a public defender will be named to provide assistance. The suspect may also choose to represent himself or herself.
Even when public defenders are present, the law as written has not always been effective. The chief obstacles to the public defender’s work include the large caseload, a lack of professional and non-professional staff, poor training of the lawyers on staff, and corruption, according to people who have studied the system.27 In several cases documented in this report, public defenders appeared more interested in supporting the prosecution than in aiding their supposed clients. In the Rodríguez Osuna case from Tamaulipas state, for instance, a public defender testified against his alleged client, asserting that his client had voluntarily made a statement to prosecutors with the public defender as counsel, even though the client had retained private counsel and retracted his statement on the grounds that it had been extracted under torture. The judge in the case appeared uninterested in the retraction or alleged irregularities, convicting on the basis of the client’s retracted statement.
The person of confidence is open to the same abuse. In the Soto Miller temporary “disappearance” case, for instance, the victim’s two people of confidence actually worked for the prosecutor’s office and have failed to appear in court to answer questions about what happened when the victim made his alleged confession.28 They had not been chosen by Soto Miller. In the García Carrillo case, brought to the attention of Human Rights Watch by the PGR and discussed in the chapter “Impunity and Punishment for Human Rights Violations,” police tortured the victim and then provided him with a “person of confidence” who may have had the confidence of the police but did not enjoy the same status with the victim. The prosecutor in the case indicted the victim using the statement he made under such conditions.
Problems with the system of public defenders have been pointed out again and again over the years. In 1992, the CNDH proposed changes to laws regulating state public defenders’ offices, noting, “Over the eighteen months of its existence, the National Human Rights Commission has seen many diverse cases that have highlighted a painful reality—that the institution of the public defender does not function as it should. This constitutes a human rights violation in itself, but at the same time is the method through which other constitutional guarantees and prerogatives are violated.”29 Since then, the situation has not improved, as the U.N. special rapporteur on torture found in 1997. “Often victims were unaware that one of the persons around them was in fact a defender, supposedly on his/her side,” the U.N. official found. “In brief, the public defender cannot be relied on to defend.”30
Human Rights Protections Under Mexican Law
Constitutional and procedural guarantees
Article 16 of Mexico’s constitution requires that authorities who carry out searches make arrests only with a court order. For an arrest warrant to be issued, the prosecutor who solicits it must show a judge that physical evidence of the crimeexists, the suspect is linked to the commission of the crime, and information exists that supports the suspect’s probable responsibility for the crime. Once the suspect has been arrested, he or she must be placed before a judge “without any delay.”31 There are two exceptions to the need for a judicial order for detention: in case of urgency32 or when a criminal is caught in flagrante or quasi-in flagrante.33 In such cases, a judge must immediately certify that the arrest was legal and, if not, release the detainee.
Article 16 provides that prosecutors, after taking charge of a detainee, have up to forty-eight hours to decide whether to free the suspect or turn him or her over to a judge. Failure to do so constitutes a criminal offense. In cases involving organized crime, the maximum time period is doubled, to ninety-six hours. Other procedural guarantees include the right of suspects or formally accused people to review the evidence against them, provide prosecutors with evidence in their favor, and face and question their accusers. A translator must be provided when needed.
Once a suspect is charged and turned over to a judge, the judge has a maximum of seventy-two hours to move forward with the prosecution or release the detainee, according to Article 19. If the custodial authorities fail to receive orders from the judge within seventy-two hours, the constitution requires them to bring the failure to the attention of the judge. If, three hours after doing so, they do not receive word, they are to release the suspect.
Judges are required to certify the validity of all arrests. In practice, however, cases in which torture and temporary “disappearances” take place are also often accompanied by falsification of police records related to the arrest, and judges in such cases often fail to question suspect or patently false police versions of how detainees came into custody. At the same time, higher courts have ruled that even if lower courts improperly certified arrests, once a judge certifies the indictment, the defendant can be tried.
Article 20 of the constitution provides that no one can be obliged to make a self-incriminating statement to authorities and that any statement made before anyone other than a prosecutor or judge is invalid. It further holds, “All incommunicado detention, intimidation or torture will be punishable under criminal law and is prohibited.”
Mexican law also provides for constitutional appeal known in Spanish as amparo. It can be used to challenge the unconstitutional actions of authorities or the constitutionality of laws.
The importance of individual and procedural guarantees
Procedural guarantees related to search, arrest, legal defense, and time periods allotted to police, prosecutors, and judges to carry out their functions serve a fundamental purpose in the protection of human rights. Due process rights, if respected, provide certainty to those subject to police or prosecutorial action about the proceedings underway and those to come. Héctor Faúndez Ledesma, a leading human rights jurist in Latin America, writes of the right to adequate legal representation, “In effect, it is very probable that of all the rights that a person subject to criminal prosecution enjoys, this is the most important, since it permits him to know and exercise fully his other rights.”34 With certainty about the legal process, people subjected to it are much less open to coercion by police or prosecutors. At the same time, procedural guarantees minimize the ability of police or prosecutors to physically or psychologically torture detainees, because they eliminate the amount of time that detainees are unaccounted for.
In Mexico, procedural guarantees take on particular importance, because torture and other serious abuses often follow arbitrary arrest, in which a suspect is detained without court order or other legally founded justification, or prolonged detention, in which the suspect is held in excess of the legally imposed limits. The cases documented in this report conform to this pattern, but it is a practice that has also been well identified by the CNDH. A 1996 commission study of 505 cases found that in more than 30 percent the victim had been arbitrarily detained, and in most of those cases had also been physically mistreated, held incommunicado, or held in detention in excess of the legally defined maximum time.35 Often, when physical abuse was meted out, the detention coincided with the amount of time thewounds took to heal.36 When physical violence was used in arbitrary detention cases, the CNDH found, it was usually aimed at obtaining confessions or signatures on blank paper that was later used by authorities to write a confession.37 Asking for a non-existent search warrant is a good way to get yourself threatened or beaten, according to the CNDH; those responsible for the abuse make a show of mistreating the victim and threatening reprisals if the case is denounced.38
The Inter-American Commission on Human Rights has also studied the problem in Mexico. Referring to what it termed the “systematic” problem of illegal detentions in Mexico, the commission determined,
[T]he most delicate aspect of the problem is that this type of human rights violation often marks the beginning of a chain of violations of other rights, which generally includes the right to personal integrity and legal guarantees. The relationship between illegal detention and the violation of an individual's personal integrity and legal rights is not a function of circumstance. Rather, it is the logical consequence of the relationship of dependency that is often found between the administrative and judicial authorities.39
Human Rights Deficiencies in Mexican Law and Legal Precedent
Despite relatively strong constitutional guarantees, Mexican laws and their interpretation have contributed to serious human rights problems. With a few important exceptions, there is no explicit prohibition on the use in court of evidence obtained through human rights violations. The law bars the admission of statements made during torture or made after being held by prosecutors beyond the forty-eight-hour time limit allowed for a decision about whether to indict. At the same time, the law prohibits the use of evidence obtained in violation of the law.
The problem with these standards is that, in practice, they do not lead to the effective exclusion of evidence obtained through human rights violations. Arbitrary detention and a detention in excess of the maximum time allowed by law are crimes, at least insofar as they constitute abuse of authority, but they do not necessarily affect the legal status of the detainee once a judge has confirmed thecharges. Similarly, illegal arrest and detention do not necessarily constitute grounds for rejecting statements made afterward.
Even after passage of the 1991 Federal Law to Prevent and Punish Torture, motivated in part to ensure that coerced confessions be banned from the legal process, Mexican courts have ruled that confessions given after arbitrary detention are valid as long as the victim admits guilt. The Second Collegiate Court of the Sixth District ruled in 1993, for instance, that even though an arrest had been carried out illegally, the confession made by the victim was valid since he had confessed to the deputy director of investigations of the Office of the Federal Attorney General.40
As shown in this report, torture often takes place during illegal detentions; even if a detainee is not tortured at the time of making a statement, torture by police prior to delivery to prosecutors can be just as effective in ensuring that a confession turns out as police desire. Mexican law, however, leaves it up to detainees to prove that their statements were made as a result of the torture they suffered, a tremendously difficult task even if physical evidence of torture exists.
Courts have also ruled that arbitrary arrest does not constitute grounds for releasing the detainee once the detainee has been charged. The Second Collegiate Court of the Sixth District ruled in 1993, for example, that arbitrary arrest “in no way implied that the indictment is unconstitutional.” The court based its judgment on the fact that the validity of the indictment depended on the strength of the evidence against the accused and that whether or not the detention was arbitrary would not change the strength of that evidence.41
In 1990, the Criminal Procudures Code was reformed to exclude from the judicial process statements made during prolonged detention, a positive change based on the presumption that in such circumstances the authorities involved had tried to coerce the declarant into making a self-incriminating statement.42 Nonetheless, in order for this prohibition to have any meaning, authorities must be able to clearly establish the details surrounding arrest, including the exact time the detainee came into police custody, was turned over to prosecutors, and then handed over to a judge. For their part, judges must insist that such detail is reliably documented. The failure of authorities to offer such detail, or the existence ofserious doubts about the veracity of the information provided, should lead to the presumption that the arrest was improper; the presumption should be reversed if authorities prove that no irregularities took place.
Authorities’ lack of concern about human rights violations committed during detention and the judicial process undercuts formal human rights protections established in the law. Several cases in this report demonstrate how judges can go out of their way to accept impugned testimonies without addressing the declarant’s allegations of torture or inadequate legal defense. Key to their ability to do so is the “principle of procedural immediacy”—the concept in Mexico that the first statement made by a detainee has greater value than later statements.43 This legal precedent—based on Supreme Court rulings—was cited, for example, in the Rodríguez Osuna case from Tamaulipas state, in which the judge accepted a statement against the defendant made by another man who had apparently been forced into declaring, even though the man had retracted his statement. Serious doubts were also raised about how he had come into detention and about whether he had appropriate legal counsel when he made the statement. Rather than express concern about the alleged coercion, the judge cited procedural immediacy to accept the statement that incriminated Rodríguez Osuna while opting to ignore the retraction because several other pieces of irrelevant evidence were said to support the declarant’s initial statement. This legal precedent was also cited in the Soto Miller temporary “disappearance” case, several Oaxaca torture cases, and the Manuel Manríquez torture case, all documented in this report.
Judges have also cited procedural immediacy to reject retractions even when torture is evident. In the case of seven people detained in 1995 in Yanga, Veracruz state, a judge admitted that several of the detainees showed signs of having been beaten. The CNDH eventually issued a recommendation finding that they had been tortured. Nonetheless, the judge ruled, “The retractions should not be given value on the basis of the alleged unconstitutional acts in which the apprehending agents probably engaged. Given the principle of procedural immediacy, their firstdepositions are the ones that should take precedence over their later ones, because they were closer to the time of the facts and without sufficient time for thinking about them or electing what to say.”44
As with confessions or statements, Mexican law does not invalidate physical evidence obtained through human rights violations. Mexico’s federal criminal procedures code establishes that evidence obtained through illegal searches cannot be accorded the status of clear proof (prueba plena), but it can be used to support other evidence and in sentencing.45
Not all Mexican courts disregard human rights concerns in issuing judgements. In fact, some have underscored that violations of procedure invalidate the resulting judicial processes. For instance, the Second Court of the Eighth Circuit ruled that the existence of human rights violations committed during detention do not constitute irreparable acts once a judge has confirmed the indictment of the detainee:
Even when the lower court has certified the indictment, if the appeals magistrate indicates that Article 16, paragraph six, of the Constitution was violated to the detriment of the detainee, he can and should legally order the release of the detainee, despite the indictment, because the indictment, based on an illegal detention, must also be considered in violation of the Constitution.46
Similarly, a judge in 1995 threw out a confession made by a woman who had been illegally detained, arguing that the court had to consider her confession forced if the safeguards in Article 16 of the constitution had not been met.47 Because of the judge’s ruling, the woman was freed. In its response to the Mexico report issued by the Inter-American Commission on Human Rights, the Mexican government presented other court decisions that showed that judges had rejectedcoerced confessions or that such confessions had been accepted only if additional evidence supported them.48
Mexico’s justice system, like all others, must balance the goal of discovering the truth in criminal cases with preserving the dignity of those who pass through the system and respecting the rule of law. Indeed, those who drafted Mexico’s current constitution argued for clearly demarcating the powers of prosecutors and judges, noting, “During the period since the revolution until now, Mexican judges have been in charge of investigating crimes and seeking evidence, just as in colonial times. To do so, they have always felt authorized to carry out veritable assaults against prisoners in order to get them to confess, which, without a doubt, strips the judiciary of its natural function.”49 From this argument sprang the protections contained in Article 16 of the constitution, which establishes limitations on the circumstances in which police and prosecutors can carry out searches or arrests, limits the amount of time they can hold detainees before turning them over to a judge, and caps the time period judges have to decide whether or not to issue arrest warrants, move forward with prosecutions, and make other decisions related to the fate of detainees.
Mexican jurist Sergio García Ramírez, who is now a judge on the Inter-American Court of Human Rights, has noted,
In a just state of law, criminal prosecution implies and demands the existence of an effective system of individual guarantees. These guarantees confer legitimacy and rationality on the prosecution, distancing it from a situation in which violence is simply employed over an individual. Without such guarantees we would witness only an unequal confrontation in which force, with no real link to reason, would prevail. In a state of law, the observation of these effective guarantees alone validates the determination of the historical truth, which is thelogical purpose of criminal prosecutions. In other words, the search for truth is not an end that justifies the means.50
The points made in García Ramírez’s somewhat theoretical analysis have also been applied in Mexico, although rarely. The balance between seeking information for prosecution and seeking information at any cost, including the violation of human rights, was the subject of debate in 1990, for instance. At that time, the criminal procedure code was amended to presume that statements made to police during prolonged detentions were coerced and should be ignored. Similarly, the legislative history of Mexico’s 1991 Federal Law to Prevent and Punish Torture shows that the Senate commissions that reviewed the law argued that public servants, “whatever their position, should carry out their work in strict accord with the law and, with respect to the investigation of crimes, should seek whatever proof is necessary; but never, under the pretext of seeking the truth, should harm be caused to suspects.”51 The principle underlying these arguments, however, has not been extended to cover other procedural irregularities in Mexico.
Procedural guarantees exist not only in order to provide legal certainty to those in custody and to remove arbitrary authority from police, prosecutors, and judges. They also ensure that procedures used to find evidence, and hence the truth, lead to the discovery of accurate information. If procedural guarantees were scrupulously followed, police and prosecutors would have less opportunity to coerce detainees. If the violation of these procedural safeguards led to a presumption in court that the detainee was coerced, and coercion led to the elimination of the evidence obtained in that manner, police and prosecutors interested in ensuring that evidence held up in court would be forced to adhere to procedural guidelines. There should be no question in the minds of police, prosecutors, and judges that evidence obtained through human rights violations will be thrown out. As part of a federal effort to strengthen the protection of human rights, the government should also promote legislation that would give legal validity only to declarations made before a judge.
International law recognizes the importance of following procedural safeguards, and establishes guidelines for admissibility of evidence obtained in violation of those guarantees. The United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment includes the need for authorities to record the time at which the detainee was brought into custody and when he or she first appeared before a judge or other judicial authority.It also holds that detainees are entitled to legal counsel. Further, the principles, which form part of the body of international law representing consensus of the international community on such safeguards, establish, “It shall be prohibited to take undue advantage of the situation of a detained or imprisoned person for the purpose of compelling him to confess, to incriminate himself otherwise or to testify against any other person.”52 They continue, “Non-compliance with these principles in obtaining evidence shall be taken into account in determining the admissibility of such evidence against a detained or imprisoned person.”53
Responsibility for Ensuring the Protection of Human Rights
Mexican law requires that authorities protect human rights and not violate constitutional guarantees, but the Mexican government must do much more to ensure that these standards are observed. While many of the violations documented in this report, like torture, constitute crimes in and of themselves, the negligent response of public officials to those human rights violations also constitutes a breach of the law. Federal prosecutors and judicial police, for instance, are bound to safeguard the “legality”of the process and to “always act in accord with the law and to respect human rights.”54 Violation of this law can lead to suspension or firing. At the same time, Mexican law provides for prison time for “crimes against the administration of justice.” It is a crime, for instance, for a public servant to “impede or delay, maliciously or through negligence, the administration of justice” or to “carry out an act or engage in an omission that produces harm or provides someone with an undue advantage.55 These crimes carry a penalty of between one and six years in prison; Human Rights Watch is aware of several cases in Mexico in which charges were brought against a federal prosecutor using this provision of the penal code.
In certain cases, including torture, prosecutors are required to open investigations with or without a complaint from the victim. However, even in cases that require a complaint to be filed, if a prosecutor learns of an abuse, he or she is required to bring it to the attention of the victim.56 The victim could press charges,then. The prosecutor’s failure to raise the issue with the victim, therefore, constitutes a failure to live up to the administrative requirements of the job and could constitute a crime against the administration of justice.
Any discussion of judicial reforms in Mexico must begin with a distinction between the law as written, the law as applied, and the law as interpreted by the courts. Indeed, Mexico has a long tradition of incorporating broad human rights protections in its constitutions.57 But constitutional human rights protections have not been consistently enforced. “The great theme of our constitutional history has been the separation, if not abyss, between standards and reality, the almost congenital inability of the former to significantly modify the latter,”58 according to At the Door of the Law.
José Luis Soberanes of the UNAM has bluntly noted the difficulty in promoting effective legal reforms in Mexico, highlighting at the same time the importance of undertaking effective reforms: “In effect, delivery of justice in Mexico depends on a structure that is complicated, slippery, and often corrupt. It seems unreformable because the foremost enemies of change are the very judicial functionaries who are ready to fight for the defense of their antiquated and poorly functioning judicial system and, yes, their privileges and sinecures.”59 Mexican legal experts have also criticized some judicial reforms as motivated more by political expedience than by need.60
Reforms this decade have focused on both improving human rights guarantees and improving the efficiency of police work, goals that in Mexico have often, though unnecessarily, been at odds. Without doubt, the need to improve the work of police and prosecutors is great. Indeed, in 1995, only 2.5 percent of the 218,599 crimes reported in Mexico City resulted in the indictment of a suspect.61 Compared with major cities such as Paris, Rome, London, Madrid, Rio de Janeiro, Sâo Paulo,and New York, Mexico City registers the worst crime-resolution rate.62 The argument often made by authorities to justify this poor showing is that the nature of crime has changed, while laws have not.63 Rafael Ruiz Harrell, a critic of this justification, summarizes the official view as follows: “If we want to reduce the level of impunity it is necessary, therefore, to update the law, strengthen sanctions, and limit cases that allow release on bail. Above all else, it is imperative to establish more elastic terms for police action—and restrict suspects’ guarantees.”64 From a human rights standpoint, this approach is troubling because it leads to greater limitations on individual guarantees; when a central problem in human rights cases in Mexico is the violation of individual guarantees leading to torture, “disappearance,” or extrajudicial execution, greater, not weaker, protections should be sought. The fight against crime in Mexico, dubbed the “National Crusade against Crime,” cannot justify violating or restricting human rights.
To analyze all aspects of the legal reforms that have taken place in Mexico in recent years is beyond the scope of this report. We focus instead on the most salient issues relevant to individual guarantees and impunity. In 1990, 1993, 1994-1995, and 1996 legal reforms were enacted, some of which strengthened and some of which weakened human rights protections.65 The 1990 reforms were focused expressly on strengthening human rights protections, invalidating statements made by detainees if they were held beyond legally mandated limits and giving the National Human Rights Commission authority to solicit information from public officials, for instance.66 Other positive changes followed. For instance, Article 20 of the constitution was amended in 1993 so that detainees’ statements to police would lack legal value as evidence in criminal cases, an important step toward stripping police of one of their strongest justifications for torturing detainees. In practice, police do not now take statements from detainees to be used in court. As positive as this change has been, though, police are still able to coerce detainees by threatening or torturing them prior to their issuance of official declarations.Nonetheless, statements taken by prosecutors have been shown to have serious problems as well, leading to the conclusion that only statements made before a judge should be accepted in court.
The prohibition in court of statements taken by police was one in a series designed to reduce the prevalence of torture; others included establishing criminal penalties for prosecutors who failed to ensure that detainees were represented by a legal defender during pre-trial proceedings and clarification of time limits for prosecutors to bring detainees to a judge.67 Similarly, after Article 21 of the constitution was reformed in 1994, victims could challenge the decision by prosecutors not to press charges against alleged criminals, including human rights violators, although at this writing authorities had yet to pass a law that would implement this constitutional right.68
During 1993 and 1994, however, additional constitutional reforms came into effect that limit individual guarantees. For instance, prosecutors were given the authority to carry out arrests in certain cases without a court order, even if the suspect was not caught in the act.69 This authority, according to jurist Ignacio Burgoa, “opens the door to unlimited subjective actions by administrative authorities. . . to limit personal liberties.”70 July 1996 reforms to Articles 16, 20,and 22 of the constitution gave broader power to prosecutors to fight crime, including phone-tapping, expanded authority to request that judges deny bail, and a wider range of instances in which they can confiscate goods.71 Later that year, the Law to Fight Organized Crime entered into force, doubling the time prosecutors can hold suspects before turning them over to a judge—from forty-eight to ninety-six hours.
Soon after becoming president in 1994, Ernesto Zedillo proposed structural reforms to Mexico’s court system, including modifications to the Supreme Court and the creation of a Federal Judicial Council, responsible for the administration of the courts and oversight, discipline, and naming of judges. Following the reforms, the number of Supreme Court justices dropped from twenty-six to eleven, and their appointment must be confirmed by the Senate. “This [structural reform] may prove important for the future independence of the court,” according to Beatriz Magaloni, a lawyer who has worked on human rights issues, “particularly in consideration of the growing strength of opposition parties and the likelihood of a more effective system of checks and balances.”72 The Federal Judicial Council may help to professionalize the judiciary and could potentially play an important role in promoting human rights by overseeing the work of judges with respect to human rights issues. The councils could document cases in which judges accept evidence obtained through human rights violations or otherwise fail to ensure that procedural or individual guarantees were observed throughout the legal processes in cases that come before them. Appropriate administrative or criminal punishment could be pursued against judges when such cases occur.
No matter how successful structural reforms may ultimately be, however, they alone would not resolve the underlying human rights problems inherent in the Mexican justice system. As García Ramírez has suggested, the changes that took place in 1994 were “macro,” rather than “micro” reforms, far from the sphere in which the majority of incidents and interactions that influence the administration of justice take place. Rather, he has argued, the area in which the day-to-day problems of millions of individuals are laid out and resolved “. . . is made up of the sum of the organs, procedures, and measures that take place on the lower rungs of system: police offices, prosecutors’ offices, courts belonging to justices of thepeace, trial-level courts, the specialized thematic courts (labor, administrative, agrarian, children), etc.”73
In December 1997, President Zedillo sent new proposed legal reforms to the Senate. Behind the proposals lies the fallacy that “certain legal requisites, developed in their context to confront a criminality lacking in the sophistication that is evident today, limit the ability of authorities to act.”74 In essence, President Zedillo argued that human rights guarantees constitute a straitjacket in the fight against increasingly sophisticated crime.
Among the most questionable proposed reforms were changes in the requirements for obtaining an arrest warrant and for a judge to jail an indicted suspect. If finally approved, the reforms would make it much easier for suspects to be jailed on weaker evidence and without certainty that a crime had even been committed. The attorney general of Mexico has explained that the reforms are an attempt to “define, clarify, and make more precise the responsibilities of the judges and the responsibilities of the prosecutors within the realm of criminal procedure,” and that they are aimed at harmonizing “due process-related guarantees with repairing the harm done to victims and with society’s legitimate interest in punishing criminals that have harmed and offended it.”75 However, the reforms would open the door even wider to all kinds of abuse already prevalent in the justice system. They would increase the chances that an innocent person would be subjected to unjust prosecution, which is particularly serious given Mexico’s weak public defender’s office.
According to an analysis by the Citizens’ Legislative Proposal Workshop, a group of jurists and human rights experts, “. . . it would be wrong to believe that the way to resolve the very serious and intolerable problem of public insecurity . . . is precisely to create a new cause for public insecurity, which is what would result from reducing through these reforms constitutional guarantees that protect citizens in general from authorities. [Similarly, insecurity would result from] giving authorities more discretionary power, which would allow them to limit theseguarantees more easily.”76 Mireille Roccatti, president of the CNDH, told Human Rights Watch the same thing in different words. “We’d be creating a monster,” she warned, since “the authorities are often the very ones responsible for [criminal acts].”77
To accompany the legal reforms, the government developed what it called “Strategies and Actions of the National Public Security Program,” which consist of eight focal points for attention from federal and state authorities. Training, testing, hiring more law enforcement and court personnel, and establishing centralized data bases were among the steps promised by the government.78 Funding would be increased to reach these goals. Several of the proposals to fight crime, such as creation of new nationwide data bases and expanding citizen participation in oversight of police, would lend themselves to the protection of human rights.
Unfortunately, human rights violations were not included in the problems to be addressed by these programs, and the strategies announced by the government did not make any reference to improving the way authorities monitor or respond to human rights abuses. In fact, expanding personnel without attending to underlying human rights concerns may worsen human rights problems. An explicit human rights focus should be an integral part of any government strategy designed to address public security problems.
After announcing its strategies for fighting crime, the federal government said it would create a new police force, called Federal Preventive Police, designed to prevent crimes of a federal nature and to assist federal judicial police in carrying out investigations. Before moving forward with the creation of a new police force, the government should publicly provide a clear strategy for ensuring that human rights violations committed by these officers will be investigated and that the offending authorities will be prosecuted. The new police force offers an opportunity to include, from the outset, mechanisms to enhance the protection and promotion of human rights.
16 José Luis Soberanes, “Informe sobre México,” in Jorge Correa Sutil, ed., Situación y políticas judiciales en América Latina (Santiago, Chile: Universidad Diego Portales, 1993), p. 430.
17 Héctor Fix Fierro, ed., A la puerta de la ley: El estado de derecho en México (México, DF: Cal y Arena, 1994), p. 59.
20 Ibid., p. 61. Translation by Human Rights Watch.
21 The Inter-American Commission on Human Rights reported in a September 1998 comprehensive study on human rights in Mexico, “The very constitutional structure of the courts casts doubt on whether they are genuinely independent vis-à-vis the Executive Branch. Indeed, the only members who cannot be removed from office in the entire judicial branch are the justices of the Supreme Court. The fact that circuit magistrates and district judges are subject to transfer until appointed to a new position undermines the principle of genuine unremovability, which is an essential requirement for an independent judicial branch. Moreover, the fact that lower court judges are not unremovable at all, together with the absence of anything that could be called a genuine legal career, gives cause for real concern.” The report further notes that Mexico is moving toward the creation of a career service in the judiciary and that some judgeships are now decided by open competition. The report finds, however, that despite the competitions, the Mexican system falls short of establishing a full judicial career service. Inter-American Commission on Human Rights, “Report on the Situation of Human Rights in Mexico,” (Washington, DC: Organization of American States, September 24, 1998), OEA/Ser.L/V/II.100, paras. 395 and 398.
22 Human Rights Watch interview, José Luis Soberanes, Mexico City, June 5, 1998.
23 Rafael Ruiz Harrell, Criminalidad y mal gobierno (Mexico City: Sansores & Aljure, 1998), pp. 66-67.
24 See Miguel Sarre, “En busca de un sistema acusatorio,” in Jalisco State Human Rights Commission, Gaceta 9 (Guadalajara: Comisión Estatal de Derechos Humanos de Jalisco, May-September, 1997), pp. 22-30.
25 Jorge Garduño Garmendia, El ministerio público en la investigación de delitos (México, DF: Noriega Editores, 1991), p. 27.
26 Constitution, Article 20(IX).
27 National Human Rights Commission, “Proyecto modelo de ley de defensoría de oficio del fuero común” (Mexico City: Comisión Nacional de Derechos Humanos, 1992), p. 8.
28 This problem has been documented by Human Rights Watch in the past. See Human Rights Watch/Americas, “Mexico: Torture and Other Abuses During the 1995 Crackdown on Alleged Zapatistas,” A Human Rights Watch Report, Vol. 8, No. 3(B), February 1996, pp. 13-14.
29 National Human Rights Commission, “Proyecto Modelo,” p. 7. Translation by Human Rights Watch.
30 United Nations, “Question of the Human Rights of All People Submitted to Any Form of Detention or Imprisonment, in Particular: Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” (New York: United Nations Publications, January 14, 1998), E/CN.4/1998/38/Add.2, para. 81.
32 In order to be “urgent,” a crime must be “serious” under Mexican law and there must be a “founded risk that the suspect will avoid justice.”
33 Quasi in flagrante includes a suspect who, no longer in the act of committing the crime, is physically pursued by police immediately after doing so, or when the suspect is identified by a third party and then immediately caught with some evidence that would allow the “founded presumption of guilt.” Federal Criminal Procedures Code, Article 193. In the Mexico City penal procedural code, this was amended on May 13, 1996, to indicate that such flagrancy would work only within seventy-two hours of a “serious” crime, if no investigation had been begun, and if the investigative pursuit of the crime had not been interrupted. National Human Rights Commission, “Detención arbitraria, inejecución de órdenes de aprehensión y abusos en su cumplimiento,” 1996, p. 49.
34 Héctor Faúndez Ledesma, Administración de justicia y derecho internacional de los derechos humanos (Caracas: Universidad Central de Venezuela, 1992), p. 310. Translation by Human Rights Watch.
35 National Human Rights Commission, “Procuración de justicia y derechos humanos,” 1996, pp. 20 and 40.
39 Inter-American Commission on Human Rights, “Report on the Situation of Human Rights in Mexico,” para. 219.
40 Semanario Judicial de la Federación, Octava Epoca, Tomo XI, May 1993, p. 308. Available: HTTP://info1.juridicas.unam.mx/jurinfo/penal/PENAL69/PEN34410.HTM [December 14, 1998].
42 Sergio García Ramírez, Proceso penal y derechos humanos (Mexico City: Porrúa, 1993) , p. 59.
43 The Mexican use of this concept appears unique. In most countries, the idea of procedural immediacy means that a statement made before a judge can be deemed by that judge to be worthy of more credence than a statement made elsewhere. In fact, the Inter-American Commission on Human Rights has termed the Mexican usage of the term “erroneous.” According to the commission, “The Mexican State is construing the [principle of procedural immediacy] in a way which, instead of serving as a procedural guarantee for those accused of a crime, is becoming its very antithesis, the source of abuse of the rights of accused persons.” Inter-American Commission on Human Rights, “Report on the Situation of Human Rights in Mexico,” paras. 310 and 315.
44 See Human Rights Watch/Americas, Torture and Other Abuses, p. 17.
45 Federal Criminal Procedures Code, Article 284.
46 Segundo Tribunal Colegiado del Octavo Circuito, Amparo en revisión, 314/94. Semanario Judicial de la Federación, Octava Época, Tomo XV, January 1995, p. 223. Available: HTTP:/info1.juridicas.unam.mx/jurinfo/penal/PENAL76/PEN37556.HTM. [December 22, 1998.]
47 See Human Rights Watch/Americas, Torture and Other Abuses, p. 11. Despite this positive ruling, the woman’s confession was used by other courts to convict people she was forced into naming in the confession—another indication of the lack of consistency related to human rights criteria in Mexican courts.
48 Inter-American Commission on Human Rights, “Report on the Situation of Human Rights in Mexico,” paras. 316 and 317. A court unidentified in the report ruled in 1975, “The detention of the accused carried out by police before a complaint had been made implies that the person was coerced and, consequently, the implausibility of the confession.” Another court ruled in 1986, “On their own, confessions obtained through prolonged and unjustified detention by police lack probative value. The word of authorities who act arbitrarily also lacks probative value on its own, since it is logical to suppose that the charges they lodge against the detainees are an attempt to justify their arbitrary action.”
49 Cited in National Human Rights Commission, “Detención arbitraria, inejecución de órdenes de aprehensión y abusos en su cumplimiento,” Materiales de Trabajo, 1996, p. 21. Translation by Human Rights Watch.
50 García Ramírez, Proceso penal, pp. 39-40.
52 General Assembly Resolution 43/173, “United Nations Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,” December 9, 1988, Principles 12, 17, and 21.
54 Basic Law of the Office of the Federal Attorney General (Ley Orgánica de la Procuraduría General de la República), Article 51(I).
55 Penal Code, Article 225(VIII and VII).
56 Basic Law of the Office of the Federal Attorney General, Article 8(I).
57 Fix Fierro, ed., A la puerta de la ley, p. 17.
58 Ibid. Translation by Human Rights Watch.
59 José Luis Soberanes, “Informe sobre México,” p. 429. Translation by Human Rights Watch.
60 Judicial reforms carried out in 1994 and 1995, for instance, followed campaign promises made by Ernesto Zedillo when he was a presidential candidate. They were submitted to Congress just days after he became president and were approved only ten days later after no public debate. See Sergio García Ramírez, Poder judicial y ministerio público (Mexico City: Porrúa, 1997), pp. 41-44.
61 Ruiz Harrell, Criminalidad y mal gobierno, p. 61.
65 Part of this chapter draws on an article published by the author in June 1998. See Joel Solomon, “Derechos humanos y combate a la delincuencia,” La Jornada (Mexico City), June 28, 1998.
66 For a full discussion of the 1990 reforms, see García Ramírez, Proceso penal. The provision that statements made to police are invalid if made during a detention that exceeded the maximum time limit was based on the supposition that police tried to pressure the detainee into incriminating him or herself.
67 For a detailed analysis of the anti-torture reforms, see Luis de la Barreda Solórzano, La lid contra la tortura (Mexico City: Cal y Arena, 1995).
68 A debate exists in Mexico about whether the proper way for this right to be exercised is through specific legislation or through the process of constitutional challenge known as amparo. The Inter-American Commission on Human Rights has welcomed the constitution’s recognition of the right to challenge a prosecutor’s decision not to prosecute, but has strongly criticized Mexico for failing to take the steps necessary to ensure that this right can be exercised simply, swiftly, and effectively. Although Mexico’s Supreme Court has held that a prosecutor’s decision not to prosecute can be subject to amparo, the commission has deemed this step positive but insufficient, because the ruling did not create obligatory legal precedent. The commission has recommended to the Mexican government that it regulate Article 21 of the constitution with a specific law. See Inter-American Commission on Human Rights, Report No. 48/97, Case 11.520, February 18, 1998, reprinted in Inter-American Commission on Human Rights, Annual Report of the Inter-American Commission on Human Rights (Washington, DC: Organization of American States, 1998), pp. 681-91.
69 Prosecutors can make such arrests “Only in urgent cases, when the matter relates to a serious crime as defined by law, and when there is a founded risk that the suspect could flee from the law, and only if the prosecutor cannot get to a judge. . . .” Translation by Human Rights Watch.
70 Ignacio Burgoa, Las garantías indivduales (Mexico City: Editorial Porrúa, 1996), p. 621.
71 Mariclaire Acosta, “El caso mexicano: otra vuelta de tuerca,” Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, March 1997, p. 4.
72 Beatriz Magaloni, “Judicial Reform Starts at the Top,” Los Angeles Times, July 25, 1997. Nonetheless, in certain circumstances the president may simply name Supreme Court justices; if the Senate twice rejects the president’s list of three candidates, the president can fill the position unilaterally.
73 García Ramírez, Poder judicial y ministerio público, pp. 34-35.
74 Ernesto Zedillo, “Iniciativa de reforma a los artículos 16, 19, 20, 22 y 123, Apartado B, fracción XIII, de la Constitución Política de los Estados Unidos Mexicanos,” December 3, 1997, p. 2. Translation by Human Rights Watch.
75 Jorge Madrazo, speech on the proposed law, December 7, 1997, provided to Human Rights Watch by the Office of the Federal Attorney General.
76 Citizens’ Workshop on Legislative Proposals (Taller Ciudadano de Propuesta Legislativa), “Las reformas constitucionales en materia penal, irrelevantes para el restablecimiento de la seguridad pública,” no date, p. 1. Translation by Human Rights Watch.
77 Human Rights Watch interview, Mireille Roccatti, Mexico City, June 8, 1998.
78 Government Ministry, “Estrategias y Acciones del Programa Nacional de Seguridad Pública: Los Ocho Ejes,” November 16, 1998.