This issue addresses reviews the recent Guadalajara forum on Mexico’s energy reforms catalyzed by Mexico Committee Vice Chair Melina Juárez Segura, presents two topical essays respectively on the prospect of compulsory bar membership in Mexico and the unification of criminal procedure across Mexico’s federal system, and offers a reflective essay on the origins of Mexican law.
This issue addresses reviews the recent Guadalajara forum on Mexico’s energy reforms catalyzed by Mexico Committee Vice Chair Melina Juárez Segura, presents two topical essays respectively on the prospect of compulsory bar membership in Mexico and the unification of criminal procedure across Mexico’s federal system, and offers a reflective essay on the origins of Mexican law.
We welcome Mexico Committee members to submit articles and to join our editorial team. To members who seek topic suggestions, we have them. Please do not hesitate to reach out.
Y u r i x h i G a l l a r d o , K i m G o i n s , P a t r i c k D e l D u c a and B e n R o s e n , E d i t o r s
ABA • Sect ion of Internat ional Law • Mexico Committee
A Note from the Editors
Message from the Co-Chairs Ernesto Velarde Danache and Ben Rosen
The Mexico Committee of the Section of International Law has been reinvigorated with the assistance of some young-blooded, visionary, committed and talented lawyers that have gone the extra-mile in order to better pursue and attain the ambitious goals of our Committee. One of the most active groups within the Committee has been the Editorial Committee in charge of the publication and distribution of our Newsletter. We want to congratulate and commend each one of them for this selfless effort, while at the same we encourage them to continue with the good work. We are also very proud of the very active role undertaken by our own Melina Juarez, Lelia Mooney and Juan Carlos Velazquez of the Women’s Diversity Working Group of the Mexico Committee. They are currently in the process of implementing some actions to attract more female lawyers to the Committee. A conference to discuss measures to be adopted will soon be held to present a draft of the projected actions, their intended events and activities. Please stay tuned so that you can be informed on steps being taken. Your enthusiastic participation would be much appreciated by the Committee leadership. On November 28, 2014, in Guadalajara Jalisco, before investors, lawyers, entrepreneurs, professors and government officials took place at the Ministry of Economic Development of Jalisco, the first forum regarding energy regulations named 5 Key Strategies to Successfully Participate at the Energy Market, an event organized by the Mexican Bar Association (BMA), the Ministry of Economic Development (SEDECO) and the American Bar Association, in coordination with the Sotorisolve law firm. Melina Juarez, Vice-Chair of the Mexico Committee and a rising star, was a panelist. As some of you may be aware a group of a dozen or so officials (Juan Carlos Velazquez and Ernesto Velarde of the Mexico Committee included) from the SIL visited Cuba in February. The purpose of the four day trip was to begin professional communication and interaction with some of the most outstanding lawyers, economists, lawyers groups, government officials and diplomats, including a cocktail reception at the residence of Ambassador Jeffrey DeLaurentis, head of the United States Interest Section in that country. The visit to Havana, Cuba was an eye-opener for many of the first time visitors to the island who received the opportunity to exchange information with all those professionals and academics with which they met while at the same time having the opportunity of discovering Cuba, the life within, the hopes of the local people, their reality and the expectations they have for a better life as a result of ongoing USA-Cuba high level discussions on reestablishing normal commercial and diplomatic relations. Part of the group continued the trip for a visit to Ecuador to attend meetings, conferences and a visit to the Galapagos Island. We would like to take this opportunity to invite all of you to attend the upcoming Spring Conference in Washington, D.C. where our Committee is presenting a panel named The Opening of Mexico’s Energy Sector to International Investment: A Practical, Legal Analysis of the Constitutional Reforms and Secondary Legislation. We are also organizing a cocktail reception for all those members of the Committee and their invitees. We hope you can join us in both events.
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M e x i c o C o m m i t t e e a n d t h e G u a d a l a j a r a E n e r g y F o r u m
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C o m p u l s o r y B a r M e m b e r s h i p a n d P r o f e s s i o n a l C e r t i f i c a t i o n f o r L a w y e r s : A t t h e C u s p o f a D e c i s i v e S t e p f o r M e x i c o
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T h e G e n e s i s o f L a w i n I n d e p e n d e n t M e x i c o
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A n E d u c a t i o n a l N a t i o n a l C o d e o f C r i m i n a l P r o c e d u r e s
Patrick Del Duca’s visit to Universidad Panamericana
On February 25-27, 2015, Patrick del Duca, an active member of the Mexico Committee, visited the MEXICO UPDATE editorial team at the Facultad de Derecho of Universidad Panamericana in Guadalajara. During his visit Patrick had the opportunity to meet with the members of the editorial team. Their meetings included review of editorial techniques, as well as discussing the current issue of the newsletter and planning future issues and contributions to the newsletter. Among future features discussed were the organization of reviews by newsletter contributors of significant decisions of Mexican courts, notably Mexico’s Supreme Court, and the possibility of interviews of leading lawyers, judges, prosecutors and other officials focused on the administration of justice.
During his visit, Patrick offered several lectures, including to the faculty (examining the teaching of legal writing in a comparative context), and to the law students of the faculty on a variety of topics, such as his book published by the American Bar Association — CHOOSING THE LANGUAGE OF TRANSNATIONAL DEALS and on styles of writing a legal essay. Patrick commented, “Although ready and willing to communicate in Spanish during my visit to the law school, I am impressed by the quality of the law faculty’s training of its students to address legal topics in English. Students were eager and
able to appreciate lectures and conversations in sophisticated legal English.”
During the visit Patrick had lunch with Isaías Rivera, dean of the Facultad de Derecho of the Universidad Panamericana, Guadalajara campus, during which they reviewed the work that has been done with the newsletter and future plans for it, as well as further opportunities for collaboration with the Mexico Committee.
We hope Patrick had a wonderful time and expect to have him back any time soon.
Patrick with PhD students and Faculty members of the Universidad Panamericana.
Left to right: Yurixhi Gallardo, José Luis Tostado, María Elena Miranda, Eduardo Moel, Francisco Javier Moreno , Diego Robles, Patrick Del Duca, Soyla H. León, Enrique Regil, Edmundo Romero, Luis Javier Reynoso, Alejandro Pérez, Víctor Ascencio and Romina Guarneros
Left to right: Dean Isaías Rivera Rodríguez and Patrick Del Duca, at the Faculty of Law, Guadalajara campus
D I S C L A I M E R The materials and information in this newsletter do not constitute legal advice. MEXICO UPDATE is a publication that is made a v a i l a b l e s o l e l y f o r informational purposes and should not be considered legal advice. The opinions and comments in MEXICO UPDATE are responsibility solely of each author/ contributor and do not necessarily reflect the view of the ABA, its Section of International Law, the Mexico Committee or the Universidad Panamericana.
M e x i c o C o m m i t t e e L e a d e r s h i p
2 0 1 4 - 2 0 1 5
C o - Ch a i r s B e n R o s e n E r n e s t o V e l a r d e D a n a c h e
V i ce - Ch a i r s R e n e A l v a S u s a n B u r n s L u i s P e r e z - D e l g a d o P a t r i c i a E s q u e r M e l i n a J u á r e z A l e j a n d r o S u a r e z
S t e e r in g G r o u p B a r b a r a A l d a v e E l i C o n t r e r a s K i m G o i n s A u r e l i a n o G o n z a l e z - B a z A l o n s o G o n z a l e z V i l l a l o b o s M a t t H a n s e n M a n u e l R a j u n o v J o a q u í n R o d r i g u e z J a y S t e i n O l g a T o r r e s
I m me d i a t e P a s t Ch a i r L e s l i e A . G l i c k
S e n io r A d v i s o r s P a t r i c k D e l D u c a J u a n C a r l o s V e l á z q u e z d e L e ó n O b r e g ó n
Anchored by coordinators in cities in Mexico and the United States, the Mexico Committee seeks to grow its members’ involvement in dialog on current and potential developments of Mexican, United States and other law relevant to their practice of law and to the establishment of sound policy. Current substantive focuses of the Committee’s work include arbitration, antitrust law, criminal procedure reform, data privacy, environmental law, legal education, secured lending, and trade law. The Committee contributes to the annual Year In Review publication, is developing its newsletter in partnership with a leading Mexican law faculty, maintains its website, and actively organizes programs at the spring and fall meetings of the International Law Section.
The Mexico Committee’s membership is its most important asset. We encourage all Committee members to be involved in Committee activities and to communicate freely their suggestions and ideas.
Section of International Law 2015 Spring Meeting
Where: Washington, DC,
When: April 28-May 2, 2015
The Mexico Committee plans a series of events at the spring meeting for its members to meet and interact. Please alert the Committee Co-Chairs to your attendance at the spring meeting so that they can be sure to include you in the Committee events.
Rule of Law Summit: Judicial Reform, Federalism and AntiCorruption in Mexico,
November 28, 2014, the seat of Jalisco’s Ministry of Economic Development (Secretaría de Desarrollo Económico – SEDECO) in Guadalajara hosted a forum on emerging developments in regulation of Mexico’s energy sector. Cooperating to organize the event were the Barra Mexicana, SEDECO, and the Mexico Committee of the American Bar Association Section of International Law, coordinated through Mexico Committee Vice-Chair Melina Juárez Segura of the Sotorisolve law firm. Entitled Five Key Strategies to Participate Successfully in the Energy Market, the forum gathered investors, lawyers, entrepreneurs, professors and public servants.
Dr. Fernando Zendejas, Head of the Legal Affairs Unit of the Ministry of Energy, presented the first session, Development Opportunities Regulated by the Ministry of Energy. Dr. Zendejas reviewed the legal norms adopted by the Congress, together with circumstances influencing these reforms, concluding the description of the new energy system in Mexico.
Lic. Francisco Javier Castañeda Silva, Head of the Legal Affairs Unit of the Federal Attorney for Environmental Protection (Procuraduría Federal de Protección al Ambiente – PROFEPA) in Jalisco, and Melina Juárez Segura, Coordinator of Environmental Law for the Jalisco chapter of the Barra Mexicana as well as Vice Chair of the Mexican Committee of the American Bar Association’s Section of International Law, presented a second session entitled An Environmental Perspective on the Energy Reform. They explored the timely topic of contradictions, duplications and overlaps in the legal responsibilities and powers of PROFEPA and of the National Agency for Industrial Security and Environmental Protection of the Hydrocarbons Sector.
Victor Guerrero, Legal Director of Global Gas, Carlos Miguel Velasco Ruedas, Director of Government Relations of Dragon Group, and Dr. Antonio Alcalde Alcalde, CEO of Energy Development Boreas, SL of Burgos, Spain, offered a third panel discussion, entitled Projection and Development of the Energy Sector: Traditional and Renewable energy. They addressed the challenges and opportunities for energy development created by the energy reform and offered some prognostication of future developments.
As a fourth panel, the Jalisco Director of the development banking institution NAFINSA, Bernardo San Pedro Castillo, the Director of the Energy Saving Trust, Eng. Rubén Cisneros Santillan, and the Director General of the Investment Projects
Office of SEDECO, Eduardo Delgadillo, discussed Opportunities for investment and financing in the energy market. They spoke specifically to opportunities for financial support in the development of energy initiatives and to investment opportunities.
Armando Enrique Cruz Covarrubias Universidad Panamericana Guadalajara
Carlos Enrique Burguete Medina Lazo, Villa, Moel & García Guadalajara
The forum closed with a presentation by Jorge Torres González, President of the Jalisco Chapter of the Barra Mexicana, and Javier Soto Morales, an expert attorney in the field of Agrarian Law, entitled How to Do Business in the Energy Sector as Owner and / or Possessor of Land. They laid out with respect to real property, the guarantees and potential development opportunities offered by the new legal regime for energy, addressing both property owned in the ordinary system and land ownership subject to agrarian law.
Due to the substantial attendance as well as the great interest expressed in the development of the subject matter, the organizers of this first forum have taken as a challenge to organize a second forum in a year’s time to explore and review the main challenges experienced and the opportunities emerging in respect of the energy reform. Their message: “See you next year, but in Mexico, City!”
DISCLAIMER The materials and information in this newsletter do not constitute legal advice. MEXICO UPDATE is a publication that is made available solely for informational purposes and should not be considered legal advice.
L i c . C a s t a ñ e d a S i l v a , M e x i c o C o m m i t t e e V i c e - C h a i r J u á r e z S e g u r a i n G u a d a l a j a r a .
Estudios sobre la Enseñanza y Aprendizaje del Derecho, A.C. (CEEAD) currently estimates that 1608 IESs offer law degrees);
The degree certificate from an IES in any Mexican State is valid for practice throughout the country.
Issuing the professional card by the educational authority has become a mere administrative formality, without verification of the applicant’s achievement of thresholds of professional competences.
The professional card has no expiration date.
Moreover, the concepts of ethical standards and pro bono professional service pertain only to the extent that an individual lawyer embraces them as a matter of personal
conviction or consequent to joining a voluntary bar association.
To address these and other problems, a February 2014 proposal
was advanced in the Federal Senate, which contemplates: (i) reform of articles 5, 28 and 73 of the CPEUM, and (ii) establishment of the General Law for Professional Practice subject to Compulsory Membership and Certification (Ley General del Ejercicio Profesional sujeto a Colegiación y Certificación Obligatorias).
Content of the Proposal for Constitutional Reform and a General Law
The proposal includes numerous tools to improve quality of professional services, not only for the legal profession, but also for every occupation that impacts life, health, security or a community’s heritage. Here are some of them:
Creation of an Inter-Institutional Commission of Professional Association Membership and Certification (Comisión Interinstitucional de Colegiación y Certificación Profesionales), mandated to institute and maintain an
DISCLAIMER: The materials and information in this newsletter do not constitute legal advice. MEXICO UPDATE is a publication made available solely for informational purposes and should not be considered legal advice. The opinions and comments in MEXICO UPDATE are those of its contributors and do not necessarily reflect any opinion of the ABA, their respective firms or the editors.
Compulsory Bar Membership and Professional Certification for Lawyers: At the Cusp of a Decisive
Step for Mexico Jorge A. Torres González*
The legal regulation of the professional practice of lawyers in Mexico has historically been limited. The practice of law has not been the object of significant norms or regulatory oversight to assure that a client will receive legal service of technical and ethical quality. Article 5 of Mexico’s Federal Constitution currently designates the States of the Republic as the entities entitled to regulate the professions whose exercise requires certification of a degree. However, the States’ norms relative to the exercise of professions are in their majority merely compendia of administrative procedures or good intentions.
For Mexican youth and the population in general, the legal profession is one of the economic activities most pursued. According to Mexico’s National Institute of Statistics and Geography (INEGI), 321,000 Mexicans were practicing law in the first quarter 2014, corresponding to 0.7% of Mexico’s population.1
The numbers are growing. The 2013 Statistics Yearbook of the National Association of Universities and Higher Education Institutes in Mexico (ANUIES), reports for the 2012-2013 academic year, 34,213 recipients of a law or similar degree, and 278,640 students enrolled in the relevant degree programs.2 To these numbers must be added, the unquantifiable number of inauthentic degree certificates and false licenses circulating in the legal market.3
Under Mexico’s present constitutional and legal regime, any person can be legally enabled to practice law, by simply obtaining: (i) a degree certificate issued by a Higher Education Institute (IES) authorized by the government, and (ii) a professional card. These requirements fail to generate acceptable certainty, because:
The academic level demanded by the IES varies hugely (ABA ROLI México-American Bar Association Rule of Law Initiative in 2011 reported that the number of IESs offering the Degree in Law in Mexico grew over the past twenty years from less than 100 to 1,100.4 The Centro de
...The legal profession is one of the economic activities most pursued...
Professional Association and whether the lawyer has the appropriate qualifications, has been disciplined for violating ethical norms, etc. Challenges This proposal is the most serious and complete one presented on the topic to date and enjoys the support of prestigious institutions, including the Barra Mexicana, Colegio de Abogados, A.C., ABAROLI México, etc. However, it has created unease across a wide range of State authorities currently charged with regulation of professions. Further, some IESs openly oppose it.5 Both kinds of opposition correspond to the loss of control that implementation of the proposal would
impose upon them. As an independent lawyer, I find a limitation of the proposal to be its focus only on professional legal practice, without extending its reach to the teaching methods relevant to
the preparation of lawyers and other legal professionals. However, it undoubtedly constitutes a very acceptable and desirable tool, that would establish a professional standard far superior to that which we are currently living in our country. * Attorney, LLM, Universidad Panamericana, Campus Guadalajara. Professor of Civil Obligations and General Proceedings Theory at the same University. President, Jalisco Chapter of the Barra Mexicana, Colegio de Abogados, A.C. Partner, Barrera, González Schmal & Torres. 1http://www.inegi.org.mx/inegi/contenidos/espanol/prensa/Contenidos/estadisticas/2014/abogado0.pdf, consulted November 16, 2014. 2http://www.anuies.mx/content.php?varSectionID=166, consulted November 16, 2014. 3 According to the Secretaría de Educación Pública, fraudulent credentials are most often presented in respect of the professions of nursing, medicine and law. For the period 2002-2012 it holds files on 3,147 fraudulent licenses. http://www.eluniversal.com.mx/nacion-mexico/2014/sep-detecta-miles-de-titulos--39pirata-39-981061.html, consulted November 16, 2014. 4
http://media.wix.com/ugd/88ecb2_7b7d1eddafdb4421a8258f288b986234.pdf, consulted November 16, 2014. 5
updated Catalog of Professional Activities subject to Compulsory Professional Association Membership and Certification. The idea is to avoid resort to legislative procedures or constitutional reforms each time that a new profession should become subject to the regime of compulsory board membership and certification. Compulsory membership. The proposal seeks to regulate the nature, functions and organization of the Professional Associations, establishing “minimum” elements, such as charter documents, rights and duties of members, ethical monitoring. The proposal would require attorneys to join and maintain membership in a bar association charged with policing its members ethical behavior. Perhaps one of the most controversial aspects of the reform is its limitation for each profession of the number of associations at national level to five, and for each State, also to five. The limitation corresponds to the concern that the authorities cannot provide effective oversight of a greater number of associations. The limitation, however, could be found to contradict precedents established by Mexico’s Supreme Court. Compulsory legal certification. The proposal contemplates the institutions of Certification Entities (EC). Each lawyer would be required to prove the lawyer’s technical abilities to practice, every five years. Test to access the profession. The test would be an instrument for certification which measures, in a uniform way, the minimum technical competences that a lawyer must have to begin his professional activity. The test would be administered by the association chosen by the attorney to join. National Registry of Professional Activities: The registry would offer centralized public access to the information relevant for technical and ethical monitoring of professional activities subject to compulsory membership and certification (record of lawyers, Professional Associations, EC, IES, etc.). Any member of the public would be able to access the system to verify a lawyer’s membership in a
The test would be an instrument for certification which measures, in a uniform way, the minimum technical competences that a lawyer must have to begin his professional activity...
The Genesis of Law in Independent Mexico Armando Enrique Cruz Covarrubias
Regarding the subject of the origin of law in Mexico, independent for just over two hundred years, various authors assert its birth as a political rupture and a total liberation from the bonds, above all of a legal nature, that had been maintained with the Spanish foundations; they argue that the phase of colonialism and of separation from the conquering country constituted, of necessity, the end of a state of subjugation and oppression of the country conquered.
With much insistence, authors addressing the history of law explain to us that the law imposed by Spain over its colonies, our country included of course, was a law of oppression where slavery was legalized throughout the conquered territory, as it was in all other colonies, and the servitude of the indigenous populations was established in favor of the colonizers through the institution of the encomienda. Often it is emphasized that although the regime of encomienda is nominally benign relative to that of slavery, the indigenous peoples were in practice subject to a true system of slavery and exploitation.
Taking as foundation these and other arguments, they believe that effectively on consummating the independence of the New Spain, there was a total and definitive rupture of Spain from Mexico, in 1821, and that a total separation relative to the topic of law was generated, and consequently, upon the establishment and consolidation of the new independent Mexican authorities, their first action was to bury, once and for all, the totality of the old laws of the oppressor to make way for a Mexican legal system, new and glorious.
Well, the facts and information that we have been able to see and verify, show us that there was no such rupture and derogation from the Spanish legal system, but rather, on the contrary, that immediately upon the
new Mexican authorities commencing to exercise authority, they undertook to
declare in force various of the Spanish legal regimes. Indeed, in a legal case of 1868 brought against the governor of Jalisco, Gómez Cuervo,1 condemned for having disobeyed an amparo judgment that obligated him to leave unimplemented an order of execution against persons taken into custody, in flagrante, for the crime of assault, he was tried and judged on the basis of a law that had been issued in 1813 by the Cortes of Cádiz (the nascent parliament), that spoke to the penalties corresponding to public officials who violated the Constitution. This judgment was made by Mexico’s Supreme Court of Justice of the Nation, of that epoch, fifty-five years after the political rupture between Mexico and Spain, which proves that the rupture of Spain relative to Mexico was not total, much less immediate.
The defense attorney, John Lancaster, arguing in the defense of the Governor of Jalisco, Gómez Cuervo, strongly reproaching the Supreme Court, asserted
that “only to a poorly organized brain would it occur to apply a law that was no longer in force and that corresponded to the previous oppressor government”. Ignacio Altamirano, a renowned lawyer at the time, acting as prosecutor of the aforementioned criminal case, for his part, commented that no legal order that had been consequence and part of a Spanish political
...the law imposed by Spain over its colonies, ...was a law of oppression...
...on consummating the independence of the New Spain, there was a total and definitive rupture of Spain from Mexico...
DISCLAIMER: The materials and information in this newsletter do not constitute legal advice. MEXICO UPDATE is a publication made available solely for informational purposes and should not be considered legal advice. The opinions and comments in MEXICO UPDATE are those of its contributors and do not necessarily reflect any opinion of the ABA, their respective firms or the editors.
and administrative system should be invoked as applicable, because upon Mexico constituting itself as independent, ipso facto all legal dispositions were abrogated and that to apply them, a prior declaration by the new Mexican authorities of their being in force was required.
As we can see, Altamirano explained that the Spanish laws could not be applied without their having previously been declared applicable by the Mexican institutions, and without this requisite they had no legal value. The foregoing datum is interesting because it proves that Spanish law continued to apply in independent Mexico, simply by making the corresponding declaration of validity.
Over-viewing some laws, we can affirm that what independent Mexico began to do, once having declared independence, was to declare in force a massive number of laws and legal provisions of the former conquering country. We note the following examples:
Constitution of Apatzingán of 1814
In reviewing the instant constitution, we find article 211, which regulates the validity of laws relating to the administration of justice. Let us look:
“Article 211. While the sovereignty of the nation forms the body of laws which shall replace the old ones, such laws remain in full force, with the exception of those that by the present and other previous decrees have been repealed and of those which may later be repealed.” 2
In the foregoing provision, we find that the 1814 Constitution of Apatzingán maintained the effectiveness of the Spanish laws until the eventual issuance of the corresponding Mexican norms. Let us now consider the case of the 1821 Plan of Iguala.
Plan of Iguala of 1821
In this text we find article 15, which states:
“Article 15. All branches of the state and public employees shall remain as in the day, and only those who oppose this plan shall be removed.”3
We see that not only the Spanish laws continued to be maintained, but also the public officials who had been working in the previous regime.
In turn in article 20 of the same text, we find an express mandate that established:
“Until the Courts are established, one will proceed in criminal matters in complete compliance with the Spanish Constitution.”4
In criminal matters, all offenses established under the laws of Spain continued in application.
Indeed, many legal principles of those Mexican laws were incorporated in the local Mexican constitutionalism, and currently continue in effect almost verbatim after two hundred years.
The foregoing is only a modest analysis on one aspect of the legal system and a minor account of the origin of the law in Mexico. The question of whether it was good or bad to take up Spanish laws and declare them valid in independent Mexico will be the subject of another study.
* Ph.D. in Law, Autonomous National University of Mexico (UNAM), member of the National System of Researchers. 1 Cf. DOCUMENTOS IMPORTANTES DEL PROCESO AL GOBERNADOR CONSTITUCIONAL DE JALISCO C. ANTONIO GÓMEZ CUERVO, MEXICO, 1868, p. 80. 2 Ramírez, Tena, LEYES FUNDAMENTALES DE MÉXICO (FUNDAMENTAL LAWS OF MEXICO) 53 (Porrúa, 23ª ed., 2002). 3 Id., p. 115. 4 Id.
...Spanish law continued to apply in independent Mexico,...
...not only the Spanish laws continued to be maintained, but also the public officials...
An Educational National Code of Criminal Procedures
Carlos Enrique Burguete Medina
The implementation of an accusatory judicial system implies a significant advance in matters of transparency and publicity, as it allows the general population to observe more closely how the courts deliver justice, fostering beyond the obvious implications, a new generation of citizens more engaged in matters of this nature.
Moreover, the principles of confrontation and of immediacy guarantee that the search for justice become achievable for all, given that the opportunity for the parties to contradict, contravene and refute every proof and allegation, added to the obligation of the Judge to preside every hearing, ensures that the information founding a judgment is of quality and grounded in reality, which undoubtedly leads to more just outcomes.
The lack of a foundation to regulate the accusatory criminal procedure has forced the States that since 1999 have ventured to implement the new system of criminal justice, to generate a series of learning experiences for the country, particularly concerning good practices, but also areas of opportunity and growth.
In 1999 Coahuila implemented a system of adversarial accusatory justice, introducing as mechanisms to relieve pressure on the system the stay of the proceeding in evidence and summary proceedings; Nuevo Leon and the State of Mexico followed in 2004 by amending their criminal justice systems, introducing oral proceedings, without modifying the basic structure of the system, concerning particularly the pre-trial criminal investigation; and as well as subsequently Chihuahua, Oaxaca and Zacatecas.
The States that implemented the system of adversarial accusatory justice, not having a model for their legislation, maintained various legal concepts characteristic of a mixed inquisitorial system; such is the case of Nuevo León, where the structure and importance of the pre-trial criminal investigation remained, largely privileging the principle of immediacy over that of confrontation, as matters established during this preliminary phase, by virtue of their proximity to the happening of the facts investigated, was considered of greater probative value than matters established in the criminal procedure before the Judge.
In light of this, it became fundamental to develop a uniform model of criminal procedure, incorporating all the grounds and principles of the Constitutional Amendment of June 18, 2008; adapting the Ibero-American doctrines to a functional context within the Mexican reality, drawing in the abstract upon the guiding principles of criminal procedure in countries such as Chile, Argentina and Peru, but complying with the necessities of justice in Mexico.
Consequently, the National Code of Criminal Procedures has not only regulatory purposes, but also seeks to conform to an educational objective, as it not only regulates criminal procedure, but also clarifies the meaning of the concepts fundamental for correct operation of the adversarial accusatory system.
It suffices to consider article 3 of this legislation, which contains a glossary with terms that in most cases are considered as well understood without express definition, such as legal counsel, Reviewing Judge, Court of Judgment, among others.
...The lack of a foundation to regulate the accusatory criminal procedure has forced the States ... to generate a series of learning experiences for the country,...
occasions to an impunity disguised as pursuant to agreement.
One of the most relevant subjects within the National Code of Criminal Procedures is the use of precautionary measures, given that for years in Mexico preventive detention has been overused as the precautionary measure par excellence in the criminal procedure.
Chapter VI of Title VI establishes the admissibility and types of precautionary measures, but not only this. It contains as a matter of law and not abstractly, the principle of minimum intervention, which guarantees
that in this case precautionary measures be used as Extrema Ratio and not as a general rule as in the mixed-inquisitorial system.
To conclude, the promulgation of a Uniform Criminal Procedures Code will afford benefit as follows:
Standardization of criteria in procedure matters, which favors improved operation of the adversarial accusatory system by the users and officials involved.
More efficient courts that can meet their jurisdictional obligations in less time, as justice delayed will never be justice at all.
The structure in the manner of a criminal law manual implies that all the operators of the system may know
the concepts and terms essential for proper functioning of the system, thereby achieving better practices in litigation as well as in the
pursuit and administration of justice.
It privileges the respect for human rights, since they are already inserted throughout the Code, without the need to draw upon different sources of law to justify their application and safeguard.
Despite the relative simplicity of the enumerated concepts, with the promulgation of the National Code of Criminal Procedures one seeks to unify criteria in this regard, lessening the possibility of subjective interpretations.
Moreover, Title II titled “Rights and Principles in the Procedure” clearly and concisely explains the characteristics and guiding principles of the system, in addition to suitably summarizing the rights of any person who might intervene in any manner in a criminal procedure, among which are included in a novel way the right to intimacy and privacy of all those involved in the procedure, and not only of the parties.
Title V, Book I of the National Code of Criminal Procedures contemplates the subjects that are part of the criminal procedure, which conforms with its educational objective, as it defines who will intervene as a party and who will be considered solely an auxiliary, specifying likewise the rights and responsibilities of each.
Now, the National Code of Criminal Procedures in conformity with its regulatory purpose has set the limits on the application of the multiple benefits that the accusatory system affords, such as the criteria of discretion [prosecutorial discretion] and the possibilities for the resolution of a controversy by means of negotiation [plea bargaining].
The fact that minimum and maximum limits are set for the application of these mechanisms has certainly been a great advance, given that the States where the adversarial accusatory system was implemented without a legislative model experienced various excesses, giving rise in many
One of the most relevant subjects within the National Code of Criminal Procedures is the use of precautionary measures….
...with the promulgation of the National Code of Criminal Procedures one seeks to unify criteria...
...justice delayed will never be justice at all...
ABA ● Sect ion of Internat ional Law ● Mexico Committee
Editorial Committee: Mexico Committee
Ben Rosen, Editorial Board Chair Patrick Del Duca, Alejandro Suárez
Juan Carlos Velázquez de León Obregón Ernesto Velarde Danache
Facultad de Derecho, Universidad Panamericana, Guadalajara Campus
Maria Isabel Álvarez Peña, Vice-Dean Yurixhi Gallardo Martínez, Academic Head
Romina Guarneros Galaz, Editor Gabriela García Escobar
María Eugenia Flores Chávez María Fernanda Lazcano Arregui
Eric Coufal Leaño
Members of the MEXICO UPDATE editorial team at the Facultad de Derecho, Universidad Panamericana, Guadalajara Campus María Fernanda Lazcano Arregui, María Eugenia Flores Chávez, Eric Coufal Leaño, Gabriela García Escobar, and Romina Guarneros Galaz.
The Mexico Committee continuously seeks qualified professionals prepared to contribute their time and talents to continue developing a more active Committee. This is a prime opportunity to become involved with a community of lawyers that share an interest in Mexico and Mexican law, who are fellow American Bar Association members.
The Mexico Committee welcomes any suggestions, ideas or contributions to enhance this periodic publication. The current submittal deadline for contributions to the next issue is April 30, 2015 but please do not wait until the deadline. Rather, be in touch now with any member of our Editorial Committee with your offer of help, be it as an editor or a contributor. We can offer topic suggestions and provide translation and editing as needed.
If you are interested in participating actively with the Committee and in joining its steering group, please contact any member of the Committee leadership.
