Evolution of the right to remain silent in Mexico
| Autor | Renee C. Licona Vázquez |
| Páginas | 162-181 |
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Challenges in Mexico's justice system have reached never imagined levels. Organized crime, drug dealing and criminal violence, among other problems, raid the country1 without an apparent institutional remedy that may effectively solve those problems. The Federal Government and state governments have created institutions such as national2 and state3 systems of public safety, which have tried to address those problems. Despite such institutions, the crisis of the system is organic, substantive and procedural. The crisis of the system is the precise reason why the system must change.4 As a possible solution to the crisis, in June 2008 a constitutional reform transformed Mexico's inquisitorial criminal procedure into an adversarial criminal procedure.
The criminal system in Mexico, like any other, is made up according to the jurisdiction of institutional elements such as courts and tribunals that are administered by the different judiciaries, the state attorney offices, and the investigatory and police forces among others. It is also made up of substantive elements such as criminal codes and many other relevant laws. Finally, the system has procedural elements, whose task is to harmonize all the components of the system and make them work towards its ultimate purpose; proper administration of justice based on the rule of law.5
Each of the elements finds its rationales and functions in the different laws that make them up. In Mexico, on the federal level, and on the top of the justice system we find the Federal Judiciary Branch (Poder Judicial de la Federación)6 and its corresponding institutions, which has among its functions, the very important one of judging criminal federal matters.7 The law that defines the structure of the P.J.F. is the Federal Judiciary Brach Law (Ley Orgánica del Poder Judicial de la Federación),8 which gives the institutions of the P.F.J. the necessary powers to judge criminal cases. Next to the P.J.F. is the institution that is in charge of investigating and prosecuting federal offenses, this being the Attorney General Office of the Republic (Procuraduría GeneralPage 163de la República),9 which acts through the Federal Public Prosecutor (Ministerio Público Federal)10 and its aides.11 Just as any other public institution, the P.G.R. finds its legal frame in its organic law12 which does not create its functions per se, but develops them.13 On the federal level and in a simple way, most of the substantive elements that the P.G.R. and its human resources will bring before the judiciary are found in the Federal Criminal Code (Código Penal Federal).14 Finally, in general, the procedural elements that will harmonize each and every institution of the system, being the courts and tribunals of the P.J.F. the ones that will hear about the offenses prosecuted and investigated by the P.G.R. can be found in the Federal Criminal Procedure Code (Código Federal de Procedimientos Penales).15
In a few words and oversimplifying, the system works the following way: the P.G.R. through the M.P.F. investigates16 the crimes contained in the C.P.F. and then demands from the courts and tribunals of the P.J.F, according to the procedures established in the C.F.P.P to punish in the name of society whomever is responsible for the committed offenses. As mentioned in the beginning, the justice system in Mexico is the result of the due interaction of the aforementioned institutions that altogether make up the federal criminal system.
Organic and normative institutions make up the system that has been already described, but the system is not autonomous nor arbitrary. It owes its origin and form to the ultimate norm that reigns the national legal framework, the Political Constitution of the Mexican United States (Constitución Política de los Estados Unidos Mexicanos)17 adopted in 1917.
In essence, in criminal matters, the C.PE.U.M. contained up until June of 2008 an inquisitorial system of criminal justice. Although in its origins the C.PE.U.M. contained an accusatorial system18 subsequent constitutional amendments that had the specific intent to improve the procedural elements of the system slowly transformed it into an inquisitorial one.19
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The weak Mexican federal system,20 made the inquisitorial trend to be slowly adopted by the state legislatures. By 1934 the C.F.P.R was passed into law and with it, the metaconstitutional strengthening of the criminal inquisitorial system in Mexico; on both in the federal and state levels.
The origins of the crisis of the Mexican criminal justice system can be many and varied, but the social desire is one, the system as a whole (institutional, substantive and procedural elements) must change.21 Not only in some states, like the cases of Nuevo León and Chihuahua which implemented a new criminal procedure,22 but in the national arena. The transformation of the Mexican criminal system formally started in 2004 with the adoption of the reforms to the Code of Criminal Procedure for the State of Nuevo León (Código Penal para el Estado de Nuevo León)23 and the Code of Criminal Procedure for the State of Nuevo León (Código de Procedimientos Penales de Nuevo León).24 Despite being state level reforms and limited in their scope, they tried to eliminate the nonfunctioning inquisitorial criminal system in the State of Nuevo León at least in regards to the prosecution of certain crimes. With these reforms, a mixed criminal system was born in Nuevo León. To prosecute most crimes the system kept long existing traditions, but in order to prosecute some misdemeanors a new accusatorial system was implemented in the State of Nuevo Leon.25 Without talking about the practical, social or legal reasons that led to such reforms, the truth is that Nuevo Leon's reforms were only the first of a much broader national trend.26 This trend seeks to transform the inquisitorial system into a different one, which if not being totally accusatorial, it would at least be made up by both traditions.
It is distinctive that unlike the common Mexican trend in which the states' legislatures are influenced by the federal legislators, the latter were forced to turn and look at the states' reforms and the consequences that each system has had. Therefore the House of Representatives (Cámara de Diputados)27 in its session of December 12,2007 approved the Bill of Decree to reform, add and derogate various provisions of the Political Constitution of the United Mexican States in criminal justice and public safety matters in order to send it to the Senate.
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Such Decree included an amendment to the Federal Constitution that introduced on the federal level an accusatorial criminal system. After three years of the first state reform and after a full year of several bills on similar matters28 being drafted, all of which were submitted by different legislators to the CD. the bills were consolidated and voted on in the same draft of decree.29 With this, the federal legislators took the first step in a series of steps needed to amend the Federal Constitution and as a consequence of that, set up an accusatorial criminal system in all of Mexico.
On December 13, 2007 following its own internal procedures, the Senate (Cámara de Senadores)30 approved as a whole and in detail, the Bill of Decree to reform, add, and derogate various provisions of the Political Constitution of the United Mexican States. Then ordered for the bill to be returned to the CD. in order to comply with Article 72, Section e) of the Federal Constitution, so that the CD. would discuss and vote on the changes that the C.S. made to the bill.
On February 26, 2008 the CD. discussed and approved the report that contained the amendments which both the C.S. and the CD. made to the original bill and ordered the bill to be sent once again to the C.S. to continue with the required legal steps to amend the Federal Constitution. Finally, on March 6, 2008, the C.S. discussed and approved the Bill of Decree, and pursuant to Article 135 of the Federal Constitution the C.S. forwarded the Bill to the states' legislatures. After receiving notice of approval from several state legislatures the C.S. declared the approval of the Decree and sent it to the Executive in order for it to comply in its discretion with Article 135 of the Federal Constitution. On June 18, 2008, the Decree to reform, add and derogate various provisions of the Political Constitution of the United Mexican States was published in the Nation's Official Gazette (Diario Oficial de la Federación). That day on a constitutional level, an accusatorial31 criminal system was established in Mexico which had not existed since 1917.32
In sum, we can describe the history of the modern Mexican criminal system as accusatorial in its origins. As of 1934 it slowly beganPage 166transforming itself into an inquisitorial system directly influencing the states' jurisdictions. In June 2008, the system returned to be a truly accusatorial system inversely influenced by the most progressive state legislatures.
This study intends to analyze the evolution that the right to remain silent has had in Mexico for the last couple of years. This evolution is partially responsible for the new accusatorial system and its current legal framework as defined by the most recent constitutional amendment on the issue. The fact that the constitutional amendment is dogmatic must not be left aside. The reform requires current secondary laws, organic laws, substantive and procedural codes to be amended as stated in the Decree's transitory articles, in order for them to be one with the new constitutional...
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