Summary
One of the most important processes for building a culture of safety is to have a solid legal order that is accessible to all and is respected by the Community.
In Mexico in the second decade of the 21st century there is, at least in the doctrine and in the Constitution, a new Criminal Legal Order that allows the design of a new way of doing Justice, which is based on several principles of which stand out: The Right to Due Process, the Presumption of Innocence, the Immediacy and Procedural Concentration and the Public and Open Oral Trial based on an Adversarial System.
This process of criminal legal transformation began with the publication of the constitutional reforms in criminal matters, which were published in the Official Gazette of the Federation in its edition of June 18, 2008.
Like any implementation process, this must be accompanied by the construction of a culture that allows it to grow on fertile ground, where the dissemination and construction of knowledge are gradual, so that the new accusatory criminal law begins to be successfully implemented. In our country.
However, it has been noted throughout the cautious and prudent observation of the academic activities carried out in various parts of the country, so far this year, that the scope of the strategies that have been applied so far are limited, that There are regions and social strata that do not have any access to the innovations of the new accusatory criminal system and that the training programs are restricted to wealthy socioeconomic sectors with capacities to pay for a private education, as well as to public officials with access previously selected by the specialized Human Resources departments or their link to areas politically linked to the new Criminal Justice system. That is to say,not all have access to specialized training or certification by merit - a practice created by the Technical Secretariat for the Implementation of the New Criminal Justice System of the Ministry of the Interior - of instructors related to the referred project.
Likewise, it has also been found that the importance of new technologies for teaching the accusatory criminal system has been overlooked, since the construction of knowledge for the dissemination of the Constitutional Reform in Criminal Matters does not receive the support and financing due and moreover, in the matter of Open and Distance Education, which is oriented towards the support of public policies in order to finance Higher Education institutions.
Introduction
The constitutional reform published in the Official Gazette of the Federation on June 18, 2008, constitutes one of the broadest amendments to the Mexican criminal justice system made in recent times, both due to the number of articles in the Political Constitution of the States United Mexican States reformed, 10 precepts, as well as the new concepts, institutions and procedures that it incorporates: order of binding to process, alternative means of conflict resolution, opportunity criteria, private exercise of criminal action, control judges, oral trial, of execution of sentences, among other figures.
This essay seeks to analyze and describe the different perspectives and reforms published in the official gazette of the federation on June 18, 2008, in articles 16, 17, 18, 19, 20, 21 and 22; Sections XXI and XXIII of Article 73; section VII of article 115 and section XIII of section B of article 123, all of the Political Constitution of the United Mexican States, in the new accusatory criminal system, on the functions that will be performed in the administration of justice in the country and in the state, through the recent criminal procedure reforms that will be implemented, this by virtue of the fact that the concern arises to study such an important and current problem that will be presented both in criminal law and in oral trials that will be implemented shortly time to our state.Mainly the effects that these reforms will have are addressed: if they will be negative or positive, what things will change in their functions, what happens with the victim's situation (human rights), Conciliation and criminal mediation; alternative mechanisms for conflict resolution and what impact the work to be carried out will have in correlation with the police. By means of the constitutional reform, the criminal procedure goes from the semi-inquisitorial procedure to the accusatory and oral procedure, whose principles (publicity, contradiction, concentration, continuity and immediacy) are included in article 20 of the Constitution.alternative mechanisms for conflict resolution and what impact the work to be carried out will have in correlation with the police. By means of the constitutional reform, the criminal procedure goes from the semi-inquisitorial procedure to the accusatory and oral procedure, whose principles (publicity, contradiction, concentration, continuity and immediacy) are included in article 20 of the Constitution.alternative mechanisms for conflict resolution and what impact the work to be carried out will have in correlation with the police. By means of the constitutional reform, the criminal procedure goes from the semi-inquisitorial procedure to the accusatory and oral procedure, whose principles (publicity, contradiction, concentration, continuity and immediacy) are included in article 20 of the Constitution.
The scope of the constitutional reform in criminal matters represents not only a watershed in the systems of prosecution and administration of justice, but a true paradigm shift that all the actors that make up a democratic State of Law must assume with responsibility and commitment.
The second and third transitory articles of the aforementioned Decree establish the temporary guidelines for the entry into force in our country of the accusatory criminal procedure system, which will occur when established by the corresponding secondary legislation, without exceeding the term of eight years. Consequently, the Federation, the States and the Federal District, within the scope of their respective competences, must issue and put into effect the modifications or legal orders that are necessary in order to incorporate the accusatory criminal procedural system.
As is known, the accusatory system, in essence dialectical, is a model opposed to the inquisitive one, which is based on the principle of authority. Referring to classic authors such as Stübel, Feuerbach and more recent authors such as Lang-Hinrichsen, and Kai Ambos, we remember that the inquisitorial system started, precisely, in a general inquisition of the crime, to later approach the figure of the author, to whom it should be imputed the crime in special inquisition.
Consequently, the inquisitorial judge, whose functions were to investigate and prosecute, had to confirm, first of all, the commission of the crime in its external manifestation, in order to subsequently address the criminal prosecutor.
This antithesis between the fact and the authorship could only be resolved, as a general rule, through the confession of the defendant, since the confirmation of guilt required, at least, confirmation by two witnesses, which was rarely presented.
This conception of the process was abandoned with the adoption of a new procedural model governed by the adversarial principle. In this, the investigation and prosecution phases were separated and, therefore, the judge in charge of judging was no longer in charge of investigating the crime and the perpetrator, but that function was entrusted to the instructor who had to define the perpetrator of the crime by figured it out. Thus, the work of subsumption of the facts accused in the type was left to the judge.
The inquisitive judge must find the perpetrator. The accusatory sentencing judge receives the accused already identified as such by another judge.
In this regard, in a lecture given in the Cycle Process and Democracy in February 1952 at the National Autonomous University of Mexico, the great jurist Piero Calamandrei chiseled the spirit that contrasts both paradigms: “in the dialectical process the sentence is the consequence, uncertain until the end, of the development of the process; in the totalitarian process the development of the process is the consequence of the sentence already correct from the beginning ”.
For its part, orality is the means par excellence to implement the guiding principles of the accusatory system. Thus, the criminal process will be presided over by the idea of debate, controversy, contradiction, and the fight of opposites and will be the dialectical synthesis of the activities of the parties aimed at ensuring the interests they represent.
The process will be an open dialogue between the various actors who will confront the prevalence of what they consider to be the procedural truth. Thanks to the reform, the importance of the work of the judges will have an unprecedented preeminence in Mexico. The paradigm shift, ever closer on the horizon, from an inquisitive system to an accusatory one, is revolutionary and equivalent to that which occurred in science, when moving from the iron and monological laws of classical physics to the principles, more dialogical, interactive and tolerant of quantum physics.
The Reform is causing a renewal in the way of understanding the criminal justice system by its various operators, making it necessary to leave behind the various inefficient and authoritarian practices typical of the mixed inquisitorial system still in force in most of the states and in the federal order. To adopt instead, the mechanisms of an adversarial and oral court system, governed by the principles of publicity, contradiction, concentration, continuity and immediacy, as provided for in the wording of article 20 of our Constitution.
Accusatory criminal procedural system. Its application does not violate article 14 of the political constitution of the United Mexican States.
The Supreme Court of Justice of the Nation has held that retroactive application of the law does not operate in procedural matters if it is considered that the procedural law is formed, among others, by rules that grant legal powers to a person to participate in each of the stages that make up the procedure, and since they are governed by the provisions in force at the time in which they are born, there cannot be retroactivity until it is deprived of a power that it had. This, because it is in the substantiation of a trial governed by the adjective legal norm where the sequel of concatenated acts that constitute the procedure takes place, those that are not carried out or developed in a single instant, but rather occur in time,and it is at the different time of performance of the procedural acts that must be attended to determine the adjective law that should govern the respective act. Therefore, if before updating a stage of the procedure, the legislator modifies its processing, suppresses an appeal, extends a term, modifies the assessment of the evidence or the procedure itself, there is no retroactivity of the law, since the powers that give the The possibility of participating in any stage of the procedure, as it has not been updated, is not affected.since the faculties that give the possibility to participate in any stage of the procedure, as it has not been updated, are not affected.since the faculties that give the possibility to participate in any stage of the procedure, as it has not been updated, are not affected.
In addition, in the case of procedural laws, there is the doctrinal principle that the new ones are applicable to all events after their promulgation, as they apply to the future and not to the past, so the abrogation or repeal of the old law is instantaneous, and thereafter the new one must be applied. Consequently, the application of the legal order that establishes the new accusatory criminal procedure system on procedural acts that occurred after its entry into force, does not violate article 14 of the Political Constitution of the United Mexican States.
Competency conflict raised between trial judges from different states, due to the incorporation of the accusatory criminal procedure system into ordinary legislation of some of them.
If in the territory where one of the contending Judges exercises jurisdiction, the secondary legislator incorporated the adversarial criminal procedure system into the adjective code, in compliance with the reforms and additions to articles 16, 17, 19, 20 and 21 of the Political Constitution of the United Mexican States, published in the Official Gazette of the Federation on June 18, 2008, but left untouched the essential rules that govern the jurisdiction of the Judges to hear cases, namely, that: a) of the place where the consummate the crime; b) that it prevented when it is executed in different territories of the State, as long as their contest is updated; c) that it prevented in the case of crimes called continuing, permanent, related; and d) that it prevented for the different crimes that are imputed to the same person,even if they are not related (or under the name of a fact considered as a crime), without adding as an exception to these rules the circumstance that the declined process was processed in accordance with the traditional criminal system in force before the constitutional reform in question; Therefore, when any of those competition rules are updated in favor of the control judge and oral trials, it is inconclusive that this will be the competent one to hear the matter, since the issues related to the process, according to the above, do not affect in matters of competence.When any of those competition rules are updated in favor of the control judge and oral trials, it is inconclusive that this will be the competent one to hear the matter, since the issues related to the process, according to the above, do not affect the issues competences.When any of those competition rules are updated in favor of the control judge and oral trials, it is inconclusive that this will be the competent one to hear the matter, since the issues related to the process, according to the above, do not affect the issues competences.
Accusatory criminal procedural system. Form in which the constitutional analysis of a provision of the criminal procedure code for the state of Oaxaca must be carried out as challenged before or after the declaration of incorporation referred to in the third transitory article of the decree of reforms to the federal constitution published in the official journal of the federation on June 18, 2008.
The First Chamber of the Supreme Court of Justice of the Nation, in a session of December 3, 2008, upon hearing of the amparo under review 334/2008, held that, regarding the entry into force of the constitutional reforms published in the Official Gazette of the Federation on June 18, 2008, which refer to the accusatory criminal procedure system provided for in articles 16, second and thirteenth paragraphs; 17, third, fourth and sixth paragraphs; 19, 20 and 21, seventh paragraph, of the Federal Constitution, the Constituent established two assumptions that are contemplated in the second and third transitory articles of the relative reform decree. The aforementioned second article indicates that the referred system will enter into force when established by the respective secondary legislation, without exceeding the term of eight years,counted from the day following the publication of said decree. It also provides that at the time the legal regulations that are necessary to incorporate that system are published, the competent legislative powers or bodies must issue a declaration that will be published in the official dissemination bodies, in which it is expressly stated that the system it has been incorporated into those ordinances. For its part, the aforementioned third article specifies that said system will come into force the day after its publication of the decree itself in the Official Gazette of the Federation, in the federative entities that have already incorporated it into their current legal regulations and that, to For this purpose, the aforementioned declaration must also be made. In this regard, the First Chamber specified: “These are preconstitutional norms;that is, issued before the constitutional reform. Despite the fact that the Constituent Assembly has determined that, in such a case, the procedural system enters into force the day after the publication of the decree of constitutional reforms, the truth is that the entry into force of the aforementioned constitutional reforms is also conditional on the issuance of the respective declaration, since in the last paragraph of the aforementioned transitory, it expressly established said condition, in the following terms: 'For this purpose, they must make the declaration provided for in the second transitory article'. In that order of ideas, if the legislature, despite having legislated on the adversarial procedural system and having incorporated it into its criminal adjective legislation, prior to the constitutional reform,it has not issued the corresponding declaration, so the relative constitutional reforms have not yet been applied in the State, since the conditions established for their validity have not been exceeded. In this sense, if the challenge to the precept is made after the declaration referred to in the second transitory article, undoubtedly the confrontation of the challenged text must be made against the new constitutional text. On the other hand, if the challenge to the legal precept is made prior to the aforementioned declaration, then the confrontation must be made in the light of the amended constitutional text ”. Now, the State of Oaxaca incorporated the accusatory criminal procedure system into its Criminal Procedure Code, through Decree Number 308,published in the Official Newspaper of the State Government on September 9, two thousand and six, which would enter into force, according to its first transitory article, twelve months after its publication in the referred official media, successively, in the seven regions. that make up the State of Oaxaca; Likewise, the Local Legislature made, in the aforementioned Official Newspaper of November 15, 2008, the declaration of relative incorporation. From the above, it is concluded that the constitutional analysis of a provision of the Code of Criminal Procedure for the State of Oaxaca, which is governed by the new accusatory-oral system, must be done in confrontation with the new constitutional text, if the corresponding challenge is made with after the aforementioned declaration and, in comparison with the constitutional text prior to the reform,if the challenge to the legal provision is made prior to the aforementioned declaration.
Accusatory criminal procedural system. The entry into force of the decree of constitutional reforms published in the official gazette of the federation on June 18, 2008 also depends on the issuance of the declaration referred to in the second and third transitory articles of the decree itself, which is decisive for the relative constitutionality study.
The third transitory article of the Decree amending and adding various provisions of the Political Constitution of the United Mexican States, published in the Official Gazette of the Federation on June 18, 2008, establishes that the accusatory criminal procedure system will enter into force the day after the publication of the Decree itself in the aforementioned official media, in the states that have already incorporated it into their current legal regulations; However, the validity of the aforementioned reforms was also conditioned to the provisions of the second and third transitory articles of the said Decree,in the sense that the legislative powers must issue a declaration that will be published in the official broadcasting bodies and in which it will be expressly stated that the aforementioned system has been incorporated into the aforementioned regulations and, consequently, that the guarantees enshrined in the Federal Constitution will begin to regulate the conduct of criminal proceedings. In this sense, if a legal precept relative to the accusatory criminal procedure system is challenged after the aforementioned declaration, it is undoubted that its confrontation must be made against the new constitutional text, but if the challenge is made prior to such declaration, the confrontation will be in the light of the constitutional text in force before it was amended, since in this way all acts of authority are subject to constitutional control.
Among the most outstanding aspects in the new accusatory criminal justice system is the establishment of control judges, whose existence was deemed necessary to monitor the ministerial and police actions during the investigation of crimes and to resolve the provisional measures that specifically require judicial control.
The Public Ministry will maintain the responsibility of retaining the detainees, until they are presented before the judge of the case on the occasion of the accusation. Thus, in accordance with the rights of every accused person and those of the victim or of the offended party set forth in article 20 of the Constitution, it will be up to the supervisory judges to monitor, control, endorse and, where appropriate, disqualify the actions carried out in the investigation stage so that they are subject to more demanding rules from a legal and logical point of view and respect for human rights.
This is of utmost importance, because the content, interpretation and scope of the constitutional reform in criminal matters cannot be dissociated, at all, from two other constitutional reforms enacted in the middle of this year on amparo and human rights matters.
Thanks to the reform of constitutional articles 94, 103 and 107 published on June 6, the amparo trial will be updated, being more agile and accessible to individuals, and this will allow it to recover its essence, that is, avoid abuses of power and guarantee the regime of freedoms.
In the same way, and closely linked to the previous one, is the reform that modifies the name of Chapter I of Title One and reforms various constitutional articles, which was published in the Official Gazette of the Federation on June 10. By harmonizing our "law of laws" with international treaties on human rights, any doubts have been dispelled.
All authorities, including of course the federal judges, are obliged to promote, respect, protect and guarantee human rights, and must take into account the principles of universality, interdependence, indivisibility and progressiveness. In short, the Basic Law exists and is reformed, as a priority, so that nothing is above the protection of human rights.
And although there are already nine states that present progress in the implementation of the new criminal justice system, time is advancing inexorably, so the commitment in the other states must be ratified and redoubled to keep up with this important work. historical for the legal system of our country.
The legal system at the dawn of the XXI century must be sensitive and perceptive to new situations. Therefore, the Constitution, as a living and dynamic document, shows its temporal congruence and consistency in keeping with the changing characteristics of society and going hand in hand with the new realities.
The reform of the criminal justice system cannot be atrophied in idealism, but, following Hesbert Benavente, as a system that relies on social reality, criminal justice and the criminal process, it must be humanized, taking into account that what is brings to your attention is an intersubjective conflict as a result of the commission of a criminal offense where those involved expect a framework for discussion and efficient and protective response, for their interests or expectations.
Within the wide range of issues that make up the judicial reform agenda, criminal justice occupies a prominent place, fostering a broad and enriching debate, not only in the academic and legislative spheres, but, mainly, in society.
Criminal justice matters to the people, and as it is one of the most delicate elements for the articulation of the justice system, the quality of its operation has a decisive impact on the public perception of the rule of law.
Unfortunately, 5 years after the reform, only 10 entities are operating it partially, in some districts or regionals but not in the entirety of their territory, being the following: Tabasco, Chiapas, Nuevo León, Zacatecas, Durango, Yucatán, Oaxaca, Puebla, Guanajuato and Baja California; and 3 other entities are fully operating it throughout their territory: State of Mexico, Morelos and Chihuahua.2 When conducting a study of some Codes of Criminal Procedure, I observe that they are fast-track reforms and it seems that legislators are only interested in step out. One would have to wonder where that spirit of the legislator is in them. I think there are also some that, in my opinion, are better structured, such as the Chihuahua Code of Criminal Procedure, which was approved before the 2008 constitutional reform;the Code of Criminal Procedures of the State of Mexico and that of the State of Sinaloa. It is important that in Mexico there is homogeneity in the laws, it is not possible to continue with so many idioms that do not help the administration and administration of justice.
The reform of the Criminal Justice System in Mexico is a reality, although some do not have the same point of view in this regard. Well, it leads police investigators, experts, prosecutors, judges and lawyers to face a great challenge in relation to this system. This implies a total change in the cultural aspect of Mexican citizens, since it is a system where good faith prevails, so the family and the institutions that participate in the education and training of people will have to bear in mind the importance of Ethics, as a branch of Philosophy in charge of the study of the principles and values that must be counted on to achieve a better quality of life and a better society.
It is clear that this new System is not perfect and that it will have to be adapted to the particular case of each of the States of the Republic. Seeking that it be perfectible through its analysis, considering the opinions, experiences and everything related to its situation for the consolidation of this penal system in Mexico.
This constitutional amendment constitutes a great opportunity to improve the administration of criminal justice in our country, through a more transparent, dynamic and guarantee procedure, both for the accused and for the victims, in which the objective of clarifying the facts, protect the innocent, ensure that the guilty do not go unpunished and that the damage caused by the crime is repaired.
At the same time, it also represents a great challenge in response to the set of institutional changes that must be carried out in the sphere of competence of the 3 powers of the State, in the three levels of government, which include the Federation, the 31 states and the Federal District., as well as the 2464 municipalities that make up our country, all within the period of less than 6 years that remain.
The greatest challenge for the implementation of the penal reform consists in overcoming the cultural change that implies moving from a mixed penal system, with features of the inquisitorial, currently in force in our country, to an accusatory and oral system, in which the operators legal entities will have a more participatory, transparent role and with full respect for the fundamental rights of the accused and the victim.
Another challenge is the accumulation of institutional changes that need to be carried out to guarantee the proper functioning of the Control, Oral Trial and Penalty Execution Courts; as is the case of the redesign of the judicial office; the construction and equipping of the rooms for said courts; and investment in technological resources for its operation.
Therefore, I believe that the success or failure of the reform of the criminal justice system does not depend on its incorporation into the Constitution, but rather on the care taken in its implementation. As Luigi Ferrajoli comments, in the current conditions of evolution of the rule of law, it is relatively easy to theorize a criminal guarantee model in the
Constitution and secondary legislation. The difficult thing is to put into practice all this constitutional and legal framework, since: “… beyond the theoretical and normative elaboration of the principles, rights and legal guarantees, the most difficult thing is to defend, act and develop in the practice the system of guarantees ”.
In this sense, this essay aims to briefly comment on the main needs to be overcome in the implementation process of the accusatory criminal justice system in Mexico, from the perspective of reforms and their application in the constitutional sphere.
Development
Social inclusion is a highly controversial topic. In contemporary Mexico, we can speak more easily of exclusion than of inclusion. In modern Mexico, the construction of categories has managed to range from the political to the social spectrum. The origins of the people, their origin and their standards of living, have been decisive to frame and classify them according to the predominant tendencies in the current political system in the entity in question.
Curiously, inclusion means precisely encompassing everyone within the same space, respecting their limitations and qualities, exploiting their talents and allowing them access to equal opportunities at the same time. Inclusion is an exercise of respect for human rights based on the primal understanding that we are all equal, on the same access to opportunities for men and women regardless of their extraction, origin and condition.
This inclusion in itself implies a challenge in a Mexico originally dissimilar and different in every way. From the north to the south of the country, the idiosyncrasy, the language, the form of communication, the expression and the laws are completely different. It is because of this that talking about inclusion in social matters is complex, because it also means raising the level of understanding of the legislator and the specialist to the very identity of the Mexican.
One of the main needs detected in the short term consists of overcoming the cultural impact that legal operators will experience when moving from a mixed criminal system, with characteristics of the inquisitorial, to another accusatory and oral system, in which the investigating police, the agents of the Public Ministry, the applicant lawyers, judges and magistrates, will need to acquire new knowledge, skills and abilities to carry out their role; It should not be underestimated that as a general rule, changes generate resistance, which is translated into obstacles to overcome the established paradigms.
In addition to training the legal actors who will intervene in the criminal process, cultural change must consider teachers and students, in order to train better operators in the various subsystems in the medium term and improve criminal justice in our country. For this reason, it is necessary not only the participation of the official training institutes, but also the involvement of universities to standardize study programs in the country's law schools.
Perhaps in another country it works in this or that way because its structure and its cultural level make it work with these contents, but that does not imply that to bring it to Mexico we should not make an effort of analysis, comparison and contextualization, relativizing the principles to the extent that they are applicable to us Mexicans in the best possible way, achieving their benefits without giving up the positive aspects of our legal structure and without losing sight of our specific needs and possibilities. If we want to progress in the implementation of the accusatory justice system, we must also make an effort to take from those cultural spheres from which it comes, the characteristic aspects that make its operation possible and that are useful to us.Although we do not adopt the institution of the jury, that does not mean that we cannot move towards a more advanced and equitable accusatory system compared to the one we currently have.
This adaptation process is essential for this to flourish. The principles of a better culture of legality, as well as the idea of conciliation and early resolution of conflicts, among others, have to be transmitted from elementary education to form societies with those values. Values acquire special significance in three key sectors: behavior in the economic sphere, in the political sphere and in the social sphere.
In the first case, for example, it is related to the recognition of effort; If the value of things is conceived for what it costs to get them, then what others have, what others deserve, is also recognized.
At the political level, the value must be towards debate, towards dissent, towards convincing through valid arguments so that the reasons for the benefit of what is convenient for the common good may prosper.
In the social sphere, positive value is assertive dissent with respect to what is not good and that, therefore, cannot be imposed21. For example, regarding the legislation on the accusatory system, or any other, the determinations of the executive or legislator are not incontrovertible or capriciously imposed on civil society. In a culture where dissent, debate, debate, the legislator will have to improve his law, because a law that does not work, that is not rational, should not be approved, but if it does, it will be criticized by society and disqualified by the judicial bodies; if it is criticized and disqualified, it will have to be modified.
Another need that I consider should be addressed in the short term is to carry out a dissemination campaign that involves the media, so that lawyers, students and society in general have information on: What is the accusatory system? What are the principles that govern it, its objectives and purposes? What is the role of the operators of that system? and How can society participate to contribute to its success? In this area, the general population should be informed that the Constitutional Reform of June 18, 2008, does not include only oral trials, because even though it has been the stage of the process that has been given the greatest dissemination, the Accusatory criminal process, comprises 4 stages: the investigation phase, the intermediate or preparation phase, the oral trial and the execution of the sentence,That is why, in order for it to function properly, it requires the training of all the legal operators of the system, on their intervention in all stages of the criminal process, not only in the oral trial.
Medium and long-term needs
The importance of adequately regulating the anticipated forms of conclusion of the process in the new Code of Criminal Procedures, derives from the circumstance that for the accusatory system to function properly, it is required that 100% of criminal cases, 95% be resolved in advance through the aforementioned means, in the first two stages, that is, the investigation and the intermediate or preparation of oral proceedings and only 5% reach oral proceedings. Well, if the percentage of cases that reach oral proceedings is higher, the viability of the system would be put at risk, by collapsing and generating a large judicial backwardness, taking into account the number of processes and the seriousness of the crimes committed against federal level, as well as the number of persons processed in each case.
A concrete example that corroborates the previous statement can be seen in the Chilean criminal justice system, in which according to statistical information
that said country reported in 2008, of 583,030 criminal cases that entered the Guarantee Courts, 7,002 were resolved by oral proceedings; 150, 551 by opportunity criteria; 110, 270 by means of Conditional Suspension of the Procedure; 34,255 through Abbreviated Procedure; and 18,470 for Reparatory Agreements (conciliation, mediation).5 Thus, as can be seen from the previous statistics, of the 583, 030 criminal proceedings entered, 1.20% were resolved by oral proceedings, while 25.8% through the Criterion of opportunity; 18.9% through the Conditional Suspension of the
Process; 5.87% using the Abbreviated Procedure; and 3.16% corresponded to alternative media.
Another issue that the Permanent Legislator must take care of when issuing the criminal adjective law is that relating to the protection of the fundamental rights of crime victims and in charge of which public body will be the effective protection of this measure, in order to achieve balance between the parties and one of the objectives of the accusatory system is fulfilled, which is to guarantee respect for the fundamental rights of both the accused and the victim, in the terms provided for in article 20 of the Constitution, in sections B and C. This circumstance of defining the institution in charge of which will be the protection of the fundamental rights of crime victims, comes to mind, because even though in principle it might be thought that the organization in charge of this function is the Public Ministry,It is necessary to recognize that one of the weaknesses that this institution has accused in the comparative processes of penal reform in America
Latina, it has been precisely to fulfill the role of protector of the victims of crimes, since as the specialist Mauricio Duce points out:
"… Despite having made very significant advances in the normative design of rights in favor of victims, it is still possible to verify that the Public Ministry has not become a very vigorous actor in the promotion and protection of them."
A first issue that can be verified in the area is the lack of an institutional framework in the Public Ministry that is in charge of designing and executing policies on the promotion and protection of victims' rights. Except for a few cases - and with problems of territorial coverage - there are few Public Ministries that have some type of specialized institutionality in the matter. This situation is also reflected in the lack of specific intervention programs, such as information on victims or protection for them "
This weakness of the role of the Public Prosecutor's Office as protector of the fundamental rights of the victims of crimes is noted in a particular way in the operation of the Criminal Justice System of the State of Chihuahua, in which, despite having issued a Law of Attention and Protection of Victims or Offenders of the Crime, it is striking that of a total of 9,719 criminal cases filed from January 2007 to April
In 2010, 3,349 cases were reported as pending in process, while 125 were resolved at an oral trial hearing; 2,339 sentences for the abbreviated procedure; 1,303 cases for reparations agreements; and 938 cases suspended due to trial proceedings, according to information contained in the document entitled: Technical-Legal Assessment of the Implementation Process of the Criminal Reform in the State of Chihuahua, First Progress Report, prepared by the Technical Secretariat of the Coordination Council for the Implementation of the Criminal Justice System.
According to the aforementioned statistical data, a serious impact on the fundamental rights of the victims or offended is observed, as more than 35% of the criminal proceedings entered into the new criminal justice system are registered, regarding which the document itself points out: "It is important to delve into the reasons that are leading to the accumulation of these pending cases, one of the aspects discussed being the delays in the investigation process."
In this sense, in the case of the Mexican criminal system, it would be worthwhile to define in the criminal adjective legislation, whether the Public Ministry will be the institution in charge of protecting the fundamental rights of the victims of crimes, enshrined in article 20 of the Constitution, section C; Or, it will be the Judicial Power of the Federation, through the Federal Institute of Public Defense, as provided for in the ninth transitory article of the General Law to Prevent and Punish Crimes in the Matter of Kidnapping, Regulatory of Section XXI of Article 73 of the Political Constitution of the United Mexican States, recently approved, which literally states: “Ninth. The Federal Institute of Defense
The Public Judicial Branch of the Federation, within the scope of its competence, will establish the specialized areas in defense of victims of kidnapping, in the terms of the provisions of the law on the matter ”. Finally, one of the needs that must be addressed, in the short, medium and long term, is the evaluation of the public policies that are being implemented, which allows knowing in a timely, objective and reliable way, the strengths and weaknesses that are presented during the implementation process, in order to make the pertinent adjustments to the system, which allow its proper functioning.
To satisfy this need, it is important to capture, systematize, analyze and disseminate the statistical information of the criminal justice systems that are operating to date at the national level, in order to determine whether the expectations or purposes that served as motivation for the By changing this new system, they are yielding the promised results, that is, if a more effective, accessible, transparent and reliable criminal justice system is actually being built.
Everything concerning the implementation of a new system of administration of justice implies an arduous work of the legislators, of the operators of the same and especially of the society in general as is the case of this Accusatory-Adversarial and Oral Penal System, the which has its support in the good faith of the people. It is worth mentioning that Alternative Justice is of great importance, and in particular in the new system of administration of justice, since it seeks to avoid reaching the stage of oral proceedings and to opt as far as possible for an alternative solution to the conflict. but always guaranteeing the reparation of the damage to the victim or offended.
Characteristics of the accusatory criminal system in Mexico according to the constitutional provisions
Each and every reform carried out will be examined in a timely manner, and at the same time each one of the articles will be analyzed to have a key reference of what is to be done with these new reforms and what was what prompted them in the beginning.
Article 16.- Changes the figure of the corpus delicti and probable responsibility, due to criminal act and probable participation.
- Constitutional basis of the Arraigo only in crimes of Organized Crime. Foundation of the inviolability of private communications. Creates the Control Judges.
Which describes that the judicial powers must have control judges, who will resolve the requests of the public prosecutor for precautionary measures, precautionary measures, guaranteeing the rights of the indicted and the victims and offended. The main function of the supervisory judge will be to qualify the legality of the arrest of the accused, authorize searches, wiretaps and any type of requests from the public prosecutor that are necessary for the investigation; It also presides over the hearings of the initial investigation phase and resolves, always respecting the principle of contradiction, the precautionary measures requested by the Public Ministry. When it dictates a binding order to the process, it must indicate the term for the public ministry to terminate its formal investigation,It should mainly exercise conventional control when the rights of the accused are violated. Also, it will preside over the intermediate stage of preparation of oral trial and the practice of anticipated evidence, in addition it will have to resolve the abbreviated procedures; those of suspension of the criminal process to test the accused will formalize the preparatory agreements.
Article 17.- Constitutional basis for alternative means of dispute resolution.
It establishes that the sentences that put an end to the oral proceedings must be explained in a public hearing.
The fourth paragraph is adhered to in this reform, which mentions that the laws must provide for "alternative mechanisms for the resolution of controversies in criminal matters"; the fifth paragraph that describes that the judgments that put an end to oral proceedings must be explained in public hearings, referring to the principle of publicity expressed in article 20, first paragraph; This same article in its seventh paragraph orders the creation of a quality public defense service and a career civil service for defenders, as well as the guarantee of irreducibility in their fees with respect to those of the public prosecutor's office.
Article 18.- Establishes the Penitentiary regime.
Article 18 mentions that there will only be preventive detention when the crime deserves a custodial sentence. Before the 2008 reform, anyone who committed a serious crime could be placed in preventive detention, now with the 2008 reform, there will only be preventive detention according to article 19, second paragraph, when requested by the public prosecutor within the rule as an exception, when there is no other precautionary measure when it cannot ensure the purposes of the process and the presence of the accused "…The Public Ministry may only request preventive detention from the judge when other precautionary measures are not sufficient to guarantee the appearance of the accused in the trial. ”Pretrial detention is subject to different requirements established in the various international treaties and the jurisprudence of the Inter-American Court of Human Rights: "The personal characteristics of the alleged perpetrator and the seriousness of the crime that is imputed to him are not, by themselves, a sufficient justification for preventive detention" From the constitutional reform, there must be judicial control for preventive detention, that is, it must be reviewed by the judge if preventive detention is necessary or not.The third paragraph of the same article also mentions that the judge will order preventive detention ex officio in cases of organized crime, intentional homicide, rape, kidnapping, crimes committed with violent means such as weapons and explosives, as well as serious crimes determined by law in against the security of the nation and the free development of personality and health.
Article 19.- Change the term of the Order of Formal Prison to that of Binding to Process.
It establishes in which cases the Public Ministry may request the Judge the precautionary measure of preventive detention.
In its first paragraph it describes the order of binding to process, which before the reform indicated as a formal prison order, in the fifth paragraph, of the same article, it mentions that said period may be extended only at the request of the accused, the authority responsible for the establishment in which the indicted person is admitted who within the aforementioned period does not receive an authorized copy of the order binding the process and the one that decrees preventive detention or the request for extension of the constitutional period, must call the attention of the judge, and if not receives proof at the end of the period within the following three hours, will release the accused.
Article 20.- Constitutional basis of the Accusatory Criminal Process.
The aforementioned reform establishes in article 20 of the constitution an accusatory oral justice system, which has been a kind guarantee system, but totally contravenes its essence with the figure of arraigo, described in the eighth paragraph of article 16, which states that "… In the case of organized crime crimes, 40 days may be exceeded when necessary for the success of the investigation… " This is opposed to the principle of presumption of innocence, described in section “B”, section I of article 20 of the Constitution, On the rights of every accused person: “A that his innocence is presumed while his responsibility is not declared by means of a sentence issued by the judge of the case; " Article 8, second paragraph of the American Convention on Human Rights, “2.Every person accused of a crime has the right to be presumed innocent until his guilt is legally established. During the process, everyone has the right, with full equality, to the following minimum guarantees ”. With the figure of -rooting-the aggressiveness against human rights is revealed. It had previously been decreed by the Supreme Court of Justice of the Nation, as unconstitutional, and now it becomes constitutional, and unconstitutional. In relation to this, it is appropriate to mention that some judges in Mexico have also declared in their sentences that the "arraigo" it is unconventional for contravening the American Convention.in full equality, to the following minimum guarantees ”. With the figure of -rooting-the aggressiveness against human rights is revealed. Previously it had been decreed by the Supreme Court of Justice of the Nation, as unconstitutional, and now it becomes constitutional, and unconstitutional. In relation to this, it is appropriate to mention that some judges in Mexico have also declared in their sentences that the "arraigo" it is unconventional for contravening the American Convention.in full equality, to the following minimum guarantees ”. With the figure of -rooting-the aggressiveness against human rights is revealed. Previously it had been decreed by the Supreme Court of Justice of the Nation, as unconstitutional, and now it becomes constitutional, and unconstitutional. In relation to this, it is appropriate to mention that some judges in Mexico have also declared in their sentences that the "arraigo" it is unconventional for contravening the American Convention.It is appropriate to mention that some judges in Mexico have also declared in their sentences that “arraigo” is unconventional for contravening the American Convention.It is appropriate to mention that some judges in Mexico have also declared in their sentences that “arraigo” is unconventional for contravening the American Convention.
Section A, General Principles that govern it.
In section II of section “A” of article 20 of the Constitution it is mentioned that every hearing will take place in the presence of the judge, while in section IV it indicates that the trial will be held in the presence of the judge who has not heard of the case, This refers to the oral judge presiding over the oral hearing, will witness the practice of the evidence, will resolve the silver objections and will issue a sentence. In oral proceedings they may be collegiate or unitary judges of orality.
Section V describes that the burden of proof corresponds to the public prosecutor. Section VII draws attention to the new figure of early termination or abbreviated oral trial, in criminal proceedings; They are special procedures that are usually requested by the procedural parties. In the forms of early termination of Investigation or alternative exits, they can be requested from the beginning of the procedure in the investigation stage or in the intermediate stage and can be until before the order to open the oral trial is issued. In these, the repair of the damage is made for the benefit of the victim or the offended, this in order to achieve efficiency in the administration of justice, authorizing the control judge to resolve the criminal process before exhausting all the procedural stages (file temporary,empowers the public prosecutor to refrain from investigating, not exercising criminal action and the criteria of opportunity).
Section B, Rights of all accused persons.
Section “B” of article 20 describes the rights of the accused. I will mention some sections, such as section I, which describes the principle of presumption of innocence, until the responsibility of the accused is declared by means of a sentence issued by the judge of the case; Section VI, which indicates that the accused and his defender will have access to the investigation records when the former is detained, the investigation actions may not be kept in reserve, in this sense I consider that transparency is intended with this reform in criminal proceedings
In addition to section VII, which indicates that the accused will be tried within four months if it is about crimes whose maximum penalty does not exceed two years in prison, and before one year, if the penalty exceeds that time, unless he requests more term for your defense, it is important to reiterate what the fraction IX second paragraph mentions, in relation to the preventive detention that this may not exceed the time established by law for the crime that will motivate the process; but it also orders that it may not be longer than two years, except where the accused requests it, and if after two years no sentence has been pronounced, the accused will be released immediately, while the process continues, without this contradicts to impose other precautionary measures.
Section VII describes that he must be sentenced within four months and one year. It does not mention the assumption that the accused is in preventive detention, considering that it must be when he is free, since section IX refers to the fact that he may not remain in preventive detention for more than two years if he has not been decreed sentence.
Section C, Rights of the victim or offended.
Section V, Safeguarding their identity and other personal data in the following cases: when they are minors; in the case of crimes of rape, human trafficking, kidnapping or organized crime; and when, in the judgment of the judge, it is necessary for their protection, safeguarding in any case the rights of the defense.
Article 21.- The investigation of crimes corresponds to the Public Ministry and the Police.
- Constitutional basis for alternative means of dispute resolution. It establishes that sentences that put an end to oral proceedings must be explained in public hearing. The imposition of penalties, their modification and duration are proper and exclusive to the judicial authority.
It was amended describing that it corresponds to the public prosecutor to investigate the crimes and to the police officers who act under their leadership. It also mentions in its second paragraph, what is related to criminal action, which corresponds to the public prosecutor, but also to individuals.
In the seventh paragraph it indicates that the public prosecutor may consider criteria of opportunity for the exercise of criminal action. When a criterion of opportunity is applied, the criminal action is terminated against the perpetrator or participant of the fact. The Public Ministry may consider criteria of opportunity for the exercise of criminal action, in the cases indicated by law. The repair of the damage must always be guaranteed.
Article 22.- The Domain Extinction procedure is created.
Article 22 of the Constitution in its section I mentions that the extinction of domain will be jurisdictional and autonomous from criminal matters and only a judge can order it; Also in sections II and III it describes the cases in which the extinction of ownership may be decreed, in the case of organized crime, crimes against health, kidnapping, theft of vehicles; It is striking what the numeral mentions in its section II when it indicates that the extinction of ownership will proceed even when a sentence has not been issued that determines the responsibility, but there are sufficient elements to determine that the wrongful act occurred.
Article 73 section XXI.- Faculty of Congress to legislate on Organized Crime.
Article 115 section VII.- Preventive Police
Article 123 section XIII.- Separation of the position of Agents of the Public Ministry, Experts and police members in case of not complying with the permanence requirements; and they will only be subject to compensation and not reinstatement.
It may be criticized or coincide with the content finally achieved in the reform carried out, but what we could not do is question what is the legal framework that the Constitution is giving us for this system to be implemented; and this legal framework contemplates the amparo, the order to be linked to the process, the means of challenge, contemplates the victim, among other characteristics of our system.
Obviously, there are many points on which it would be necessary to reflect, however, given its recent implementation and the incipient development of its development, we will only mention what so far is most palpable with respect to specific areas of the system's exercise in our country.
Reform of the criminal justice and human rights system
The reform is aimed at building a new national prison system, which opens up a historic opportunity to consolidate the Mexican democratic system by updating its legal framework on criminal justice. This should prioritize a more humanistic perspective and in line with the standards of the international human rights system present in instruments such as the Basic Principles for the Treatment of Prisoners of the United Nations Organization (un). As a first step towards strengthening the rule of law, this new legal framework is relevant; however, respect for the human rights of all persons involved in criminal proceedings must not be neglected.In this sense, it is worrying that in the current national context, deprivation of liberty continues to be the most widely used response in the penal system, even when it is highly costly economically and socially. From the perspective of the reform of the criminal justice system, it is the joint responsibility of the government and civil society to promote a culture of legality to combat and prevent crime, in such a way that there are alternative mechanisms for the resolution of controversies derived from criminal acts. Because today it is essential to recognize that imprisonment does not inhibit crime and that, paradoxically, it has become one of the main sources of crime and violations of the human rights of people who live in prisons.even though it is highly costly economically and socially. From the perspective of the reform of the criminal justice system, it is the joint responsibility of the government and civil society to promote a culture of legality to combat and prevent crime, in such a way that there are alternative mechanisms for the resolution of controversies derived from criminal acts. Because today it is essential to recognize that imprisonment does not inhibit crime and that, paradoxically, it has become one of the main sources of crime and violations of the human rights of people who live in prisons.even though it is highly costly economically and socially. From the perspective of the reform of the criminal justice system, it is the joint responsibility of the government and civil society to promote a culture of legality to combat and prevent crime, in such a way that there are alternative mechanisms for the resolution of controversies derived from criminal acts. Because today it is essential to recognize that imprisonment does not inhibit crime and that, paradoxically, it has become one of the main sources of crime and violations of the human rights of people who live in prisons.in such a way that there are alternative mechanisms for the solution of controversies derived from criminal acts, because today it is essential to recognize that imprisonment does not inhibit crime and that, paradoxically, it has become one of the main sources of criminality and violations of crime. the human rights of people living in prisons.in such a way that there are alternative mechanisms for the solution of controversies derived from criminal acts, because today it is essential to recognize that imprisonment does not inhibit crime and that, paradoxically, it has become one of the main sources of criminality and violations of crime. the human rights of people who live in prisons.
The reform of the criminal justice system is closely linked to the recognition and protection of the fundamental rights of individuals, thus having a minimum criminal law guarantee postulate consisting of providing greater legal security within a framework of full validity of human rights. Among the human rights policies that derive from the aforementioned constitutional reform is the implementation of alternative dispute resolution mechanisms, which are translated into informal procedures and external to the criminal sphere, which focus on the restitution of legal rights to the victims or offended of the crime and the awareness of the perpetrators regarding the harmful consequences of their acts.
Any entity that boasts of being a democratic State of law is characterized by using, to provide legal security to people, a criminal law of a liberal court, which is based on principles such as legality, typicity, guilt, presumption innocence and minimal intervention of criminal law, among others.
Of the aforementioned principles, the one that manifests itself with the greatest incidence in the evolution of restorative justice is that of minimal intervention of criminal law, also called the principle of ultima ratio or the principle of subsidiarity, according to which “criminal law should only be used as a last resort when other means are ineffective; it imposes the need to previously exhaust non-criminal remedies, the consequences of which are less drastic, but which may be more effective than criminal ones ”1 for the protection of the fundamental rights of the victims or offended by the crime, as well as those who commit criminal conduct.
Application of alternative dispute resolution mechanisms
Alternative dispute resolution mechanisms as an integral part of restorative justice have as their primary purpose the search for compensatory agreements between the victims or offended persons and the accused or perpetrators of the criminal act, and consequently the achievement of the integration of the latter to society.
For the above to be carried out, federal, state and Federal District criminal procedure laws must establish informal and agile procedures that allow criminal operators to resolve disputes that arise between victims and offenders through mediation, conciliation, arbitration, family conferences and any other means of dispute resolution that is established with the entry into force of the new accusatory criminal process.
However, its application must be regulated under specific criteria of origin; They can be used when wrongful criminal offenses are updated, or in which the forgiveness of the offended person is appropriate (for example, injuries that take less than 15 days to heal) or in those crimes that damage available legal assets of patrimonial content (such as simple theft without violence); as well as those that have a minimum punishable.
Usually this type of heterocompositive procedures (in which the solution of the controversy is facilitated by the authority or a mediator) are applied in the field of justice for adolescents and can also be applied in the field of justice for adolescents. adults, which will contribute to the integral construction of a more inclusive restorative culture.
Mediation and criminal conciliation
The objective of the trial is the search for the truth, but the search for the truth and the solution of the problem are not the same thing; what people in conflict are looking for is not the truth, but the solution ”. The constitutional reform to the criminal justice system added alternative dispute resolution mechanisms, as a guarantee of access to prompt and expeditious justice, to:
- Change to the paradigm of restorative justice Encourage a more active participation of the population to find other ways of relating to each other Prioritize personal responsibility, respect for others and the use of negotiation and communication for collective development. victims obtain reparation for the damage faster Depressurize the high workloads of the courts.
These are the objectives that are sought to be achieved with the insertion of the MASC at the constitutional level, and of which their purposes in criminal matters are:
a) Separate the punitive function of the State.
They seek to counteract those behaviors of more common concurrence in the social conglomerate whose effect is individual and not collective; This is so because there are behaviors that constitute crime and deeply transcend society, generating repudiation and collective outrage, while others have particular effects.
Faced with crimes that affect the social environment, the State does not strip itself of its punitive power; As for the other unjust, the duty of the State is limited to classifying the conduct, to establish the procedures for the solution and to provide the scenarios where the parties can debate their differences, for that the State creates integrally constructive solution mechanisms that give a prompt but effective solution, with enough power and authority to prevent the emergence of individual and social resentments. In this way, the State is no longer interested in imposing penalties on the offender, but rather that the victim be compensated, that the moral and patrimonial damage be effectively compensated. This is how the principle according to which the punitive monopoly of the State disappears is structured.
b) They are mechanisms of restorative justice and a decongestion method in the accusatory system.
They are not only an alternative method of conflict resolution but also a scientific and modern way to end a dispute at the request of a third party who participates as guarantor, and a remedy or a policy of judicial decongestion. The aim is to prevent the effects produced by the crime, such as the conflict between the victim and the offender, from being brought to trial, with which the de-judicialization of the problem is obtained as a mediate effect.
c) Principle of recognition of the victim as the center of the solution.
In restorative justice a specific purpose is implicit, which is to give the victim or offended the recognition and consideration they deserve, to the point that if the offender repairs the damage in a comprehensive manner in any of its forms, the State, in compensation, reduces the penalty or extinguishes the criminal action in his favor. It is a criminal policy that prevents the State from taking criminal action because the most important legal interest has been safeguarded. Therefore, the victim is the true paradigm of conduct that officials must follow.
Said Alternative Justice has enormous advantages, which has been demonstrated with the satisfaction of many citizens, as has been verified by the reports issued by the various States that have legislation on this matter. All this implies a change in our culture regarding education, principles and certain practices that are not in accordance with the new penal system in Mexico, so it will be essential to create awareness in each and every one of the citizens of the Mexican Republic.
It is of great relevance to point out that this New Penal System for the administration of justice has many interesting novelties or principles to be observed as part of the accusatory criminal process, as is the case that the burden of proof lies with the public prosecutor, also the fact of that no person is guilty until proven otherwise. Therefore, the fact of treating the accused as a criminal will end since he has not been sentenced, that is why the name of the accused is now given in this new system, where the person is treated in a more humane way since the humanistic and justice side of the law is fundamental.
Likewise, in this Oral Accusatory-Adversarial Criminal System, the assessed evidence ceases to exist since the parties have procedural equality and the possibility of contesting at all times in the hearings what their counterpart manifests. As can be seen, this change in the way of imparting justice implies a great effort and responsibility of each and every one of the operators of the Law of this System, having that human, ethical and justice sense, it is a great commitment for the reform it is put into practice in the best way possible and to be able to achieve a society with a judicial power according to current needs and to re-believe in said power regardless of the government sphere in question. This reform is a reality for the Federation and for all states,who are mostly striving to achieve the task before the year 2015.
conclusion
The Criminal Justice System in our country has long been the most aggressive of the human rights of all accused persons, from the investigation to their imprisonment. With the constitutional reform of 2008, transparency in the procedure is intended and, mainly, that the human rights of every person are respected and protected.
The strength that is given to this new figure will depend on each legislature, without forgetting that the determination that is put to establish the greatest and best possibility of its updating will or will not give strength to the victims of the territories in which they act.. To that extent, the greater or lesser interest will be shown in preventing the institutions from filling up, as is currently the case, with merely civil matters, converted or disguised as an excessive crime.
In addition to the spill, it is important that governments grant guarantees to their police officers, as well as they are required to comply as guardians of order, it is important that they have an honest salary to live, with social benefits, so that their families can have a better quality of life, if this does not happen like that, I think we will not have good results; It must be taken into consideration that public servants who work in public security institutions work with a large workload, therefore they do not have the opportunity to seek other support, if their salary is not well paid, corruption will continue to its maximum expression and we will have to start over.
It is essential that the Comprehensive reorganization of the judicial and executive powers be fulfilled, that the training of actors in the administration and administration of justice is active, that the function of the operators of the implementing body monitors compliance with this new system of Justice.
In conclusion we can say that the majority of citizens have a feeling of exclusion with respect to the justice given by the courts since they consider it costly, slow, rigid and inflexible; It also encourages very antagonistic “all or nothing” solutions, which in many cases deepen the conflict, instead of resolving it. It is clear that the task of quickly changing an entire system of administration of justice such as the mixed inquisitorial system will be difficult, when its implementation dates back to past times operating within the idiosyncrasy in Mexico.
The change is already a reality, so it is necessary to contribute to correct mistakes on the fly and improve the Accusatory-Adversarial and Oral Penal system in our country. Otherwise, neither this system nor any other will be able to work if we do not have the long-awaited and already mentioned cultural change that is very necessary in our country, attending to the present needs.
In the state it will be very well received since this new system will resolve problems and situations of similar particularities but with means of solution and a more effective strategy in the key communication for a prompt and expeditious administration of justice.
Bibliography
- Amparo in revision 860/2010. February 2, 2011. Unanimity of four votes. Speaker: Olga Sánchez Cordero de García Villegas. Secretary: Beatriz J. Jaimes Ramos. NINTH COLLEGE TRIBUNAL IN CRIMINAL MATTERS OF THE FIRST CIRCUIT. Competition 21/2010. Raised between the Judge of Control and Oral Criminal Trial of First Instance of the Judicial District of Nezahualcóyotl, State of Mexico and the Fifty-ninth Criminal Judge of the Federal District. January 20, 2011. Unanimity of votes. Speaker: Humberto Manuel Román Franco. Secretary: José Inés Aguilar Vidal. COLLEGE TRIBUNAL ON CRIMINAL AND ADMINISTRATIVE MATTERS OF THE THIRTEENTH CIRCUIT. Amparo under review 444/2008. May 14, 2009. Unanimity of votes. Speaker: Javier Leonel Santiago Martínez. Secretary: Juan Carlos Herrera García, Amparo under review 334/2008. December 3, 2008. Five votes.Speaker: Sergio A. Valls Hernández. Secretary: Juan Carlos de la Barrera Vite.Duce J., Mauricio "The Public Ministry in the Criminal Procedure Reform: overview about the state of the changes" in Judicial Reform. Mexican Journal of Justice, Mexico, UNAM, number 6, July December 2005, p. 205. Technical Secretariat of the Coordination Council for the Implementation of the Criminal Justice System, Technical-Legal Assessment of the Process of Implementation of the Criminal Reform in the State of Chihuahua, First Progress Report, July 2010, document presented at the V session of the Council of the Coordination Council for the Implementation of the Criminal Justice System, p.11.idem.Hidalgo Murillo, JOSÉ DANIEL, Human rights control judge, Flores Editor, 2012, p. 5.Ibídem note 3.Óp. Cit., Note 3. Article 19.Inter-American Commission on Human Rights, Case “Suarez Rosero vs. Peru ”, para. 69. American Convention on Human Rights, Practical Manual of Oral Trial, Editorial UBIJUS, p.72.Lovenheim, Peter, Mediate, Don´t Litigate, New York, McGraw Hill, 1989, cited by: Sparvieri, Elena, Principles and Techniques mediation, a conflict resolution method, Argentina, Biblos, 1995, p.15 On June 18, 2008, the decree by which various provisions of the Constitution were amended and added was published in the Official Gazette of the Federation Policy of the United Mexican States in criminal matters Opinion of the United Commissions on Constitutional and Justice Points, with a draft decree that reforms, adds and repeals various provisions of the Political Constitution of the United Mexican States, dated December 11, 2007.The conciliation. Substantial and procedural aspects in the accusatory system, Fifth Edition, Colombia, Temis y Jurídica Radar, 2007, pp. 469-473, Code of Criminal Procedures of the State of Chihuahua, Code of Criminal Procedures of the State of Oaxaca, Inter-American Commission on Rights Human, Political Constitution of the United Mexican States, American Convention on Human Rights, Initiative of the Federal Code of Criminal Procedures. Pact for mexico.American Convention on Human Rights Initiative of the Federal Code of Criminal Procedures. Pact for mexico.American Convention on Human Rights Initiative of the Federal Code of Criminal Procedures. Pact for mexico.
Hemerography
- GARCÍA LÓPEZ, Eric, "Restorative Justice in Oaxaca: perspectives from legal psychology", Mexico, Iter Criminis, no. 16, E. 4 °, INACIPE, July-August 2010. NORIEGA, María Olga, “Alternative methods in the new criminal procedure system”, IterCriminis, Mexico, no. 17, E. 4 °, INACIPE, September-October 2010. KINNUNEN, Aarne, “Victim-offender mediation, successful Finnish practice”, IterCriminis, Mexico, no. 3, E. 4 °, INACIPE, May-June 2008.
Internal and international regulations
- Model Code of the Accusatory Criminal Procedure for the States of the Federation of the National Commission of Superior Courts of Justice of the United Mexican States (CONATRIB). Procedural Codes in Criminal Matters of the States of Durango, Chihuahua, Chiapas, Mexico, Oaxaca, Veracruz of Ignacio de la Llave and Zacatecas Political Constitution of the United Mexican States and its Opinion of the United Commissions on Constitutional and Justice Points, with a draft decree that reforms, adds and repeals various provisions of the Political Constitution of the United Mexican States, dated December 11, 2007. Laws on Alternative Justice of the States of Baja California, Federal District, Durango, Campeche, Chiapas, Chihuahua, Colima, Coahuila, Guanajuato, Hidalgo, Jalisco, Mexico, Morelos, Nuevo León, Oaxaca, Querétaro,Quintana Roo, Tamaulipas, Veracruz, Zacatecas. Draft Federal Code of Criminal Procedures of the Technical Secretariat. Regulations of the Mediation and Conciliation Center of the Judicial Power of the State of Mexico.
International
- From the Committee of Ministers of the Council of Europe: 233
The New Accusatory Criminal Justice System, from the Constitutional Perspective
Recommendation 7, of June 23, 1983.
Recommendation 11, of June 28, 1985.
Recommendation 18, of September 17, 1987.
Recommendation 19, of September 15, 1999.
Framework Decision of the Council of the European Union of March 15, 2001, regarding the status of the victim and the criminal process.
- From the United Nations: Resolution 40/34, of November 29, 1985, on "The Fundamental Principles of Justice for victims of Crime and Abuse of Power." Declaration of the Commission on Crime Prevention and Criminal Justice, held in Vienna from April 16 to 25, 2002. Declaration on the Fundamental Principles of Justice for Victims of Crime and Abuse of Power. Declaration of Costa Rica on Restorative Justice in Latin America, held from September 21 to 24, 2005 in Santo Domingo de Heredia, Costa Rica. Manual for the application of restorative justice programs of the United Nations, 2006 (Handbook on Restorative Justice Programs).
Websites
- Justice Study Center of the Americas (CEJA). http: //www.cejamericas.org National Commission of Superior Courts of Justice of the United Mexican States AC (CONATRIB). http://www.conatrib.org.mx/ Institute of Comparative Studies in Criminal and Social Sciences (INECIP) http: //www.inecip.org Supreme Court of Justice of the Nation (SCJN).
