Cambios al sistema judicial Economista-05

The Americas: Righting the scales; Mexico
The Economist. London: Oct 8, 2005. Vol. 377, Iss. 8447; pg. 65
Abstract (Summary)
The justice system in Mexico is on its knees. Drug-trafficking, and the violence
it brings, may attract most international attention, but the flaws in the
organisation of Mexico's courts and police affect far more people than the
"narcos" ever do. Oaxaca, along with half a dozen or so of Mexico's 32 states,
is seeking to revolutionise its judicial system. Drawing on successful
programmes in Chile and Costa Rica, it aims to move from a Napoleonic
inquisitorial system, where prosecutors take most of the decisions and judges
act largely as rubber stamps, toward a more British- or American-style
adversarial system, in which oral arguments before a judge in court play a key
role. The underlying aim of the judicial reforms, which are broadly similar
across the states seeking to implement them, is to increase transparency and
efficiency, thereby supposedly prompting prosecutors and police to do a better
job.
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(Copyright 2005 The Economist Newspaper Ltd. All rights reserved.)
The long path towards justice
THE justice system in Mexico is on its knees. The innocent are imprisoned and
criminals go free. The poor go to jail. The rich don't. Drug-trafficking, and
theviolence it brings, may attract most international attention, but the flaws in
the organisation of Mexico's courts and police affect far more people than the
"narcos" ever do.
The first step in fixing a problem is to admit you have one. "Our legal justice
system has collapsed," says Patricia Villanueva, chief prosecutor in the
southern state of Oaxaca. "It is obsolete," agrees Manuel Moreno Rivas, head
of the state's judicial police, responsible for investigating crimes. That is why
Oaxaca, along with half a dozen or so of Mexico's 32 states, is seeking to
revolutionise its judicial system. Drawing on successful programmes in Chile
and Costa Rica, it aims to move from a Napoleonic inquisitorial system, where
prosecutors take most of the decisions and judges act largely as rubber
stamps, toward a more British- or American-style adversarial system, in which
oral arguments before a judge in court play a key role.
According to Guillermo Zepeda, a researcher at CIDAC, a think-tank in Mexico
City, 95% of crimes in Mexico fall under local jurisdiction. As a result, reforms at
the state level are likely to have a more profound impact on the nature of crime
and punishment in Mexico than action at the federal level. In any case, attempts
to address structural problems at the federal level have stalled politically. The
hope is that the patchwork effort to overhaul state systems will eventually
"trickle up" to the federal level too.
Of every 100 crimes in Mexico, it is estimated that only 20 or so are reported. In
Oaxaca, only four or five of those 20 are actually investigated, Mr Moreno says, a
figure broadly representative of the country as a whole. Furthermore, of the
investigations that are opened, more than three-quarters are never resolved.
There is also a strong selection bias. Because prosecutors have a weekly
quota of indictments to meet, says Layda Negrete, a professor at CIDE
university in Mexico City, the crimes which are prosecuted are either
overwhelmingly minor ones or crimes where the perpetrator was caught redhanded. According to a 2003 survey by CIDE, over 60% of the prison population
was caught in flagrante and more than half was there for minor, non-violent
crimes. As a result, says Ana Magaloni, also of CIDE, Mexican jails are "stuffed
full of poor people", while professional criminals are not caught.
The underlying aim of the judicial reforms, which are broadly similar across the
states seeking to implement them, is to increase transparency and efficiency,
thereby supposedly prompting prosecutors and police to do a better job.
Though there is some corruption, the main problem, according to Ms Magaloni,
is incompetence. Everyone agrees on the need to set up training schemes for
police, lawyers and judges, but this will not be easy. As Jose Antonio Caballero
of Mexico City's National Autonomous University notes, at present there is no
national bar association nor even a programme of accreditation for law
schools.
Torture
If the state of Mexico's lawyers is bad, that of its police is arguably much worse.
"It's a myth that the top level knows what's going on," Ernesto Lopez Portillo of
the Institute for Security and Democracy in Mexico City says: "Real control rests
with mid-level commanders." So when Mr Moreno and Ms Villanueva deny that
prisoners are beaten or tortured, they may be in earnest, despite evidence to
the contrary.
Following his arrest in Oaxaca last year, Habacuc Cruz Cruz, a union organiser
in the state, says that he was severely beaten and kept for three to eight days at
a time in a tiny cell without light or ventilation, which measured just one square
metre. Mr Moreno insists that such treatment no longer takes place; the penal
system could not withstand the public outcry if it did, he says. But, as Ms
Magaloni dryly comments, Mexicans have lost their capacity to react to scandal.
Cases like Mr Cruz Cruz's no longer shock. Without a thorough overhaul of the
police system as well, judicial reform will be futile, Mr Lopez Portillo argues.
So far, only the northern state of Nuevo Leon has actually started implementing
reforms. Cases involving minor crimes are now argued orally in front of a
judge, instead of the judge reading mounds of papers alone in chambers.
This, Mr Zepeda says, has already produced big gains in efficiency and equity.
In Oaxaca, the state government hopes to pass legislation in the coming
legislative term (ie, the next six months) to launch a five-year reform process
leading to the formal installation of a new legal system.
But even if all goes well at state level, the lack of change at the federal level
could cause difficulties. Under a process called amparo--a challenge to the
constitutionality of a local decision--almost any legal matter can be appealed to
the federal courts. While only 2% of state cases at present go to amparo,
Roberto Hernandez of CIDE says that this is sufficient to clog the federal
system. Some two-thirds of appealed cases are dismissed by the federal
courts, often on minor technical grounds. Unless the procedure is changed to
one where appeals are possible only on specific legal grounds, there is a risk
that, as today, anyone with the means could file for an almost limitless number
of amparos, says Mr Hernandez, effectively neutering the state system.
Juan de Jess Vasquez, a state appeals court judge in Oaxaca, believes the
judicial reform plans represent a 180 degree change of course. But, he
cautions, "many of us haven't been to law school in 25 years", so this would be
difficult to achieve. The fruits of the reforms, he concedes, "are for my kids and
grandkids". It will be a long time before Mexico has a justice system worthy of
the name.