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Judiciary: The Courts in Mexico

The steady process of change in judicial organizations in Mexico, which began in the mid-1990s, was given a major boost in the past few years with four constitutional amendments.

The most significant is a 2008 amendment requiring that all state and federal judicial systems transition from a written-based inquisitorial system to an oral-based accusatorial one by 2016. This will bring greater transparency while better protecting the rights of the accused and allowing for the presumption of innocence until proven guilty.

Halfway into the transition phase, though, the processes’ slow implementation poses a risk that states won’t meet the 2016 deadline.

Only 18 of Mexico’s 32 states (including the federal district) have seen changes in their criminal justice systems. Chihuahua, Estado de México and Morelos have completed the transition to the accusatory model, while Baja California, Durango, Oaxaca, and Zacatecas have made substantial progress. Other states are still in the process of passing legislation or implementing and conducting oral trials, including the federal district, Chiapas, Guanajuato, Hidalgo, Jalisco, Nuevo León, Puebla, Quintana Roo, Sinaloa, Tabasco, Tamaulipas, and Yucatán. One holdup is that reform at the federal level is still in its early stages. This has reduced the pressure on the states to quickly implement changes in anticipation of the deadline.

The enabling legislation embodied in the Codigo de Procedimientos Penales (Criminal Procedures Code) defines how the reforms will be adopted but is still stuck in Congress. In March, the Senate started holding public hearings to receive comments on the draft project, though the hope is still to secure its passage by spring.

So far, states that have implemented the reform see it as helping to achieve a better allocation of criminal justice resources. Rather than going to trial, there is an increase in the use of alternative dispute resolution where the focus is on solving victims’ problems rather than imprisoning the accused. In Chihuahua, for example, statistics show that most of the caseload is processed before trial or in abbreviated trials.

But to fully benefit from the reform, a number of other sweeping changes need to be effected. Lawyers, judges and judicial officials will need significant training in the accusatorial system.

In addition, serious challenges remain to improve the quality of criminal investigations. In these cases, the federal government and states cannot wait until the last hour to implement reforms and assume that the system can instantaneously switch over.

Beyond the larger judicial reform, three other recent constitutional amendments are helping to improve the judicial system: the introduction of class action lawsuits (2010); new procedures to improve access to the writ of amparo (2011); and acceptance of internationally recognized human rights as constitutionally guaranteed individual rights protected under the Mexican system (2011).

The first, the introduction of class action lawsuits, permits groups of individuals to collectively file suit to defend their environmental, cultural, educational, health, or consumer interests—a right that is often used in countries such as Brazil, Chile and the United States. While this new provision has seldom been used thus far to protect individuals, the Procuraduria Federal del Consumidor (Federal Attorney’s Office of the Consumer—PROFECO) has filed actions on behalf of telecommunications and airline consumers.

In February 2013, the Supreme Court agreed to hear a case in which PROFECO is suing Nextel on behalf of its consumers in response to complaints over a deterioration in the quality of service in 2010. Also, PROFECO challenged Air Madrid, Líneas Aéreas Azteca and Avicsa airlines for defrauding passengers.

One of the biggest challenges facing the Mexican judiciary is implementing constitutional reform of the writ of amparo—long a signature characteristic of Mexico’s legal system. It functions like an injunction in U.S. law and allows anyone to appeal to successively higher courts for an order of protection against an action that they believe violates their legal rights.

But amparo actions have been criticized for creating delays in litigation. To avoid serial amparo proceedings, the new constitutional article redefines how procedural violations are reviewed and mandates that circuit courts consider all such violations without the possibility of subsequent amparo proceedings.

After the constitutional reform, a four-month term was given for legislators to enact a new amparo law so that procedures would be in line with the reforms.

As of March 2013, more than one and a half years after the publication of the reforms, the new amparo law is almost ready for approval; the Chamber of Deputies passed the Senate version of the law in February 2013 with amendments that are now being considered by the Senate.

Yet even with these improvements, the verdict, after nearly 20 years of judicial reform
in Mexico, is mixed.

While significant advances have been made in judicial independence, improving the professionalism of the judiciary and strengthening institutions, very little has changed for those who have the most first-hand interaction with the courts: accused offenders and litigants.

Mexico’s judiciary remains a long way from improving the quality of the services it provides to the public. Trials are often slow-moving and riddled with unnecessary procedural requirements. Sentence enforcement is inconsistent. This problem is particularly a concern in debt collection cases, where opposition to foreclosures is frequent and assistance by law enforcement officials is scarce.1

There are two exceptions to this bleak landscape. The introduction of mediation in civil proceedings has spread to almost every judiciary in the country, with favorable results. And the procedural reform in commercial litigation has been widely approved, particularly in anticipation of the introduction of oral hearings.

In the years ahead, most of the attention to judicial affairs will be focused on development of criminal justice reform.

If this reform succeeds, it is likely to improve public trust toward judges, increase judicial independence and improve areas such as civil and commercial litigation. A visible reduction in backlogs and the introduction of standards that reduce processing times are also likely.

However, if criminal justice reform is not successful, judiciaries will face challenges to their independence, including budget cuts and increased intervention in judicial affairs by other government branches.

Failure may well mark the end of this period of judicial reform.

[1] From a study on judicial performance with particular attention to debt collection by the Consejo Coordinador Financiero, entitled "Ejecución de Contratos Mercantiles e Hipotecas en las Entidades Federativas. Indicadores de Confiabilidad y Desarrollo Institucional Local." (Last accessed March 13, 2013.)

Any opinions expressed in this piece do not necessarily reflect those of Americas Quarterly or its publishers.
Tags: José Antonio Caballero, Mexico