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Access to Justice for Children: Mexico

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Access to Justice for Children: Mexico ACCESS TO JUSTICE FOR CHILDREN: MEXICO This report was produced by White & Case LLP in November 2013 but may have been subsequently edited by Child Rights International Network (CRIN). CRIN takes full responsibility for any errors or inaccuracies in the report. I. What is the legal status of the Convention on the Rights of the Child (CRC)? ​ A. What is the status of the CRC and other relevant ratified international instruments in the national legal system? ​ The CRC was signed by Mexico on 26 January 1990, ratified on 21 November 1990, and published in the Federal Official Gazette (Diario Oficial de la Federación) on 25 ​ ​ January 1991. In addition to the CRC, Mexico has ratified the Optional Protocols relating to the involvement of children in armed conflict and the sale of children, child prostitution and child pornography. All treaties signed by the President of Mexico, with the approval of the Senate, are deemed to constitute the supreme law of Mexico, together with the Constitution and the laws of the Congress of the Union.1 The CRC is therefore part of national law and may serve as a legal basis in any proceedings before the national courts. It is also part of the supreme law of Mexico as a whole and must be implemented at federal level and in all the individual states.2 B. Does the CRC take precedence over national law The CRC has been interpreted to take precedence over national laws, but not the Constitution. According to doctrinal thesis LXXVII/99 of November 1999, international treaties are ranked second immediately after the Constitution and ahead of federal and local laws.3 On several occasions, Mexico’s Supreme Court has stated that international ​ treaties take precedence over national law, mainly in the case of human rights.4 C. Has the CRC been incorporated into national law The CRC has been incorporated into national law by virtue of the process of ratification (see part I.A above). Since ratification, the Mexican Government has taken steps to bring national legislation into conformity with the CRC. For example, Article 4 of the Constitution was amended in 2000 to give constitutional status to the right of children to satisfy their needs in terms of food, health, education and healthy recreation. This was followed by the enactment 1 Political Constitution of the United Mexican States (Constitución Política de los Estados Unidos ​ Mexicanos) (Constitution), Article 133; Law on International Treaties (Ley sobre la Celebración de ​ ​ Tratados), Article 2. ​ 2 Third periodic report of Mexico to the UN Committee on the Rights of the Child, CRC/C/125/Add.7, 24 ​ ​ August 2005, para. 13. Available at: http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2f125%2f Add.7&Lang=en. ​ 3 Ibid. 4 See, for example, the opinions of the Supreme Court of Mexico issued in April 2007 and November 1999 by means of tesis aisladas with record numbers 172650 and 192867, respectively. ​ ​ 1 of the Act on the Protection of the Rights of Children in order to regulate Article 4 of the Constitution, as well as similar legislation in 11 states across Mexico. However, the Committee remains concerned about “the lack of effectiveness of the measures taken to implement the rights contained in the Convention and to allow rights holders to claim them”, the fact that “not all national legislation is in full conformity with the Convention”, and that legislation such as the Act on the Protection of the Rights of Children has not been fully integrated into state laws.5 D. Can the CRC be directly enforced in the courts? ​ International treaties such as the CRC are considered part of the supreme law of Mexico, therefore they can be directly enforced in courts.6 Moreover, under Article 1 of the Constitution, provisions on human rights must be interpreted in accordance with the Constitution and international treaties encouraging broader protection for people. E. Are there examples of domestic courts using or applying the CRC or other relevant international instruments? ​ The CRC has been applied and cited in cases before the Supreme Court of Mexico, including with regard to child custody,7 and the government’s duty to protect children.8 II. What is the legal status of the child? ​ A. Can children and/or their representatives bring cases in domestic courts to challenge violations of children’s rights? ​ Children are entitled to bring amparo petitions for the protection of human rights ​ contemplated in the Constitution and international treaties ratified by Mexico (which includes the CRC) when such rights are violated by general provisions, acts or omissions of authorities (see part III.A below).9 Children may also bring civil cases with the assistance of a representative, submit complaints to the Attorney General if they are a victim of crime (see part II.B below), or submit complaints to the National Human Rights Commission (CNDH) regarding alleged human rights violations (see part III.A below). B. If so, are children of any age permitted to bring these cases by themselves in their own names/on their own behalf, or must the case be brought by or with the assistance of a representative? ​ At both a federal level and in all of Mexico’s states, children are not entitled to bring 5 UN Committee on the Rights of the Child, Concluding observations on the third periodic report of ​ Mexico, CRC/C/MEX/CO/3, 8 June 2006, para. 6. Available at: ​ http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fMEX% 2fCO%2f3&Lang=en. ​ 6 See, for example, opinion of the Mexican Supreme Court of Justice issued in December 2012 by means of jurisprudence with record number 2002264. ​ ​ 7 http://www.scjn.gob.mx/conocelacorte/ministra/derechosdelnino.pdf, (accessed 11 February 2014). ​ ​ 8 http://www2.scjn.gob.mx/fi1­2009/Documentos/Informes/FacultadDeInvestigacion­1­2009V1.pdf, ​ ​ (accessed 11 February 2014). 9 Amparo Law, Article 1. 2 cases in civil courts, and must do so with the assistance of their representatives (e.g. parents or guardians).10 Federal and state legislation on civil procedure provides that only people with legal capacity are entitled to initiate a judicial procedure (i.e. bring cases before domestic courts),11 and children (under the age of 18) are deemed to lack legal capacity,12 therefore cases must be brought to court by their representatives. However, children are entitled to bring actions by themselves to protect their individual rights under the Amparo Law if their legal representative is absent, is prevented from bringing such cases, or refuses to bring such cases. The competent court will immediately appoint a special representative to appear in such trial. If the child is over the age of 14, they may appoint a special representative themselves in the initial lawsuit. 13 With respect to federal criminal law, children aged 16 or over may submit a complaint (querella) before the Attorney General by themselves or through their representative if ​ ​ ​ they are victim of a crime. In cases of child victims under 16, complaints must be submitted by those who exercise custody or guardianship over the child.14 At the state level, the majority of states within Mexico provide for children’s ability to submit a complaint by themselves.15 However, in some states, all children need the assistance of a representative in order to file a complaint,16 while some other states impose a threshold of the age of 12,17 14,18 or 1619 for the ability to file a complaint without the assistance of a representative. The Law for the Protection of Rights of Children and Adolescents (Ley para la ​ Protección de los Derechos de Niñas, Niños y Adolescentes) provides that all federal, ​ local and municipal institutions created for the protection of the rights of children have the authority to represent the interests of children before courts (judicial or administrative).20 C. In the case of infants and young children, how would cases typically be brought? ​ In the case of infants and young children, their cases would typically be brought through their representatives (see part II.B above). D. Would children or their representatives be eligible to receive free or subsidized legal assistance in bringing these kinds of cases? ​ In Mexico, a person who is accused of a crime has the right under the Constitution to receive subsidised legal assistance (defensor de oficio).21 In any criminal procedure ​ ​ 10 Federal Civil Code, Articles 412 and 414. 11 Federal Code of Civil Procedure, Article 1. 12 Federal Civil Code, Article 450, Section I. 13 Amparo Law, Article 8. 14 Federal Code of Criminal Procedure, Article 115. 15 Campeche, Distrito Federal, Guanajuato, Guerrero, Estado de México, Nayarit, Oaxaca, Puebla, Quintana Roo, Sinaloa, Tamaulipas and Tlaxcala. 16 Baja California Sur, Chiapas, Chihuahua, Colima, Durango, Jalisco and Veracruz. 17 Zacatecas. 18 Aguascalientes, Baja California, Hidalgo and Yucatán. 19 Coahuila, Michoacán, Morelos, Nuevo León, Querétaro, San Luis Potosí, Sonora and Tabasco. 20 Law for the Protection of Rights of Children and Adolescents, Article 49(B). 21 Constitution, Article 20. 3 involving a child, the Constitution requires that the Attorney General or the court assist the child—e.g., by supplying legal arguments on the child’s behalf—with the view to protecting the best interests of the child.22 Under the Federal Law of Public Defence (Ley Federal de Defensoría Pública), ​ ​ ​ indigent persons are entitled to public defence free of charge.23 This is provided through (i) public defenders in criminal cases, from the initial investigation to the execution of sentence or measures; and (ii) legal advisers in non­criminal matters.24 The federal legal aid system is administered by the Federal Public Defence Institute (Instituto Federal de Defensoría Publica), an independent body functioning as part of ​ ​ the judiciary.
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