MEXICO: Opaque Justice

By IPS Correspondents Reprint | | Print |

Diego Cevallos

MEXICO CITY, Feb 5 2004 (IPS) - Half of the inmates of Mexico’s prisons are serving sentences for minor theft committed without violence, 80 percent have never even seen the judge who sentenced them, and 70 percent received no legal advice when questioned by prosecutors.

These are just some of the serious irregularities marring a judicial system that is heavily resistant to change.

While a new culture of openness is beginning to appear in other spheres in Mexico, legal proceedings take place far from public scrutiny, under a system of written trials that has already been abandoned by many countries in Latin America, and which keeps some court records closed for 36 years.

But many Mexican judges say the system is functioning smoothly, with few problems. According to the chief justice of Mexico’s Supreme Court, Mariano Azuela, the country’s justice system ”is transparent and fair”.

However, a 2002 report by Dato Param Coomaraswamy, U.N. rapporteur on the independence of judges and lawyers, stated that ”impunity and corruption apparently continue to prevail” in Mexico’s justice system, and reported that there is generalised suspicion, mistrust and a lack of faith in the administration of justice in this Latin American country.

After visiting Mexico, the rapporteur said he had received reliable reports indicating that between 50 and 70 percent of federal judges were corrupt. He did not specify his sources of information.

Feeling the pressure due to the abundant evidence of corruption and ineffectiveness, and the demands of private investors, who have little faith in the country’s justice system, President Vicente Fox announced in late 2003 that he would push through reforms designed to make legal processes more transparent and to adopt the oral trial system.

Experts and the media took him at his word, and organised forums last month to discuss the issue. The common denominator in the viewpoints expressed in the debates was that the system is in urgent need of an overhaul, to adopt oral trials, open up proceedings to public scrutiny, and whittle down to a minimum the restrictions keeping court records closed.

”The judicial system must join in the efforts to bring transparency to public life, and it must stop resisting that trend with absurd, obsolete arguments that merely fuel corruption,” criminal trial lawyer Andrés Pérez told IPS.

Judges have responded to the calls for transparency with the argument that Mexico is not ready for oral trials, and that opening up legal proceedings would only hurt the litigating parties, who would be informally judged and sentenced in the media prior to the actual legal verdict.

”The implementation of oral trials is a proposal that must be carefully analysed, because this scheme of administration of justice has not produced good results in other countries,” argued Supreme Court magistrate Olga Sánchez.

Germán Froto, spokesman for the Superior Court of Justice in the northern state of Coahuila, said that ”throughout the country, there are media outlets that would use the new transparency to commit slander, with no regard for the interests of society.”

A number of Latin American countries, including Argentina, Bolivia, Colombia, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay and Venezuela, began in the mid-1990s to reform their legal systems and adopt oral trial procedures.

But Mexico has not changed its old written criminal prosecution system which entails filling up pages and pages of files with statements and evidence for judges to read, on the basis of which they hand down their sentences.

Under the current system, no one unconnected to the case is allowed access to the files.

But according to Azuela, the Supreme Court justices pride themselves on the openness ”that has always characterised” them. He pointed out that since 1870 they have published a ”judicial gazette” containing extracts of verdicts from selected cases.

A new freedom of information law went into effect in Mexico in 2002, guaranteeing public access to information from any state body, except the judiciary, which was allowed to adopt its own rules aimed at ushering in transparency.

But instead of making moves towards achieving greater transparency, the 11 Supreme Court justices decided last May that court records, especially those involving cases handled by the criminal and family courts, would be closed for 12 years.

When the pressure for openness continued to mount, they decided in December to increase the number of years from 12 to 36.

”We were wrong in letting the judicial branch create its own transparency rules, because instead of doing so, it closed in on itself even more,” said Juan Escobedo, a lawyer who took part in drafting Mexico’s access law.

In 2003, under the new law, 2,700 requests for information were filed by the public at different levels of the state, 85 percent of which were successful in soliciting information, according to local authorities.

In Pérez’s view, ”sooner or later, Mexico will have to open up its justice system, to make it more expeditious and fair, and to adopt oral trial procedures.”

A study published in 2002 by the Centre for Economic Research and Teaching (CIDE) concluded that it is not the most dangerous criminals who are found in Mexico’s prisons, but those who are unable to gain a favourable legal outcome due to lack of money or knowledge about how the system works.

Half of the inmates in Mexico’s penitentiaries are serving sentences for minor non-violent theft and burglary.

”In general, the country’s penitentiaries do not house the criminals who have committed the most dangerous crimes, but the poorest criminals. The great majority of the prison population is made up of inmates responsible for relatively minor crimes,” states the study on ”The Mexican Penitentiary System”.

The authors, who surveyed a representative sample of the 175,000 prisoners in Mexico’s jails, say there is widespread mistrust and dissatisfaction with the performance of the judiciary, which is made up of 183 district courts, 74 appeals courts and the Supreme Court.

Of the 1,615 sentenced prisoners interviewed in the study, 65 percent said they had pled guilty directly before the prosecutor.

Half said they did so because they had committed the crime with which they were charged, 23 percent said they had been tortured, 12 percent said they had been threatened, three percent said their lawyers had convinced them to plead guilty, and two percent said they did so on the prosecutor’s recommendation.

A full 80 percent were not informed of their right not to testify the first time they were brought before the court. In addition, 70 percent received no legal advice or support when they were first interrogated in the presence of the prosecutors, and 80 percent never had a chance to talk to, or even meet, the judge who sentenced them.

When asked about corruption, just over half of the prisoners said they would likely have gone free if they would have bribed the police who arrested them, one-third said that could have happened if they had paid off the prosecutors, and 27 percent said they could have gotten off the hook by bribing the judge.