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Mexico Rule of Law Strengthening Final Report to Usaid July 6, 2004 to September 30, 2007

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Mexico Rule of Law Strengthening Final Report to Usaid July 6, 2004 to September 30, 2007 MEXICO RULE OF LAW STRENGTHENING FINAL REPORT TO USAID JULY 6, 2004 TO SEPTEMBER 30, 2007 December 31, 2007 This publication was produced for review by the United States Agency for International Development. It was prepared by Management Systems International. MEXICO RULE OF LAW STRENGTHENING FINAL REPORT TO USAID JULY 6, 2004 TO SEPTEMBER 30, 2007 Management Systems International Management Systems Mexico International Insurgentes Sur No. 553, piso 7 Corporate Offices Col. Escandon, C.P. 11800 600 Water Street SW Miguel Hidalgo México D F Contracted under MOBIS GS-23F-8012H/Task Order 523-M-00-04-0029-00/MSI Project 3501-000 Mexico Rule of Law Strengthening DISCLAIMER The author’s views expressed in this publication do not necessarily reflect the views of the United States Agency for International Development or the United States Government. CONTENTS INTRODUCTION .............................. ERROR! BOOKMARK NOT DEFINED. PRODERECHO.................................. ERROR! BOOKMARK NOT DEFINED. Goals .......................................................Error! Bookmark not defined. PREODERECHO’s Strategy to Promote Criminal Justice Reform ...........................................Error! Bookmark not defined. STATE REORMS............................... ERROR! BOOKMARK NOT DEFINED. Chihuahua................................................Error! Bookmark not defined. Oaxaca .....................................................Error! Bookmark not defined. Zacatecas..................................................Error! Bookmark not defined. Baja California Norte...............................Error! Bookmark not defined. Morelos....................................................Error! Bookmark not defined. Mexico .....................................................Error! Bookmark not defined. Nuevo Leon .............................................Error! Bookmark not defined. Sonora......................................................Error! Bookmark not defined. RESTORATIVE AND ALTERNATIVE JUSTICEERROR! BOOKMARK NOT DEFINED. JUVENILE JUSTICE ........................ ERROR! BOOKMARK NOT DEFINED. CONCLUSION ................................... ERROR! BOOKMARK NOT DEFINED. ANNEX MSI/Proderecho Final Report July 2004- September 30, 2007 In 2003, USAID decided to implement its Rule of Law Project in Mexico, Proderecho. The focus of the program is to promote criminal justice reforms to Mexico’s antiquated, written inquisitorial criminal justice system. In July 2004, USAID contracted with Management Systems International (“MSI”) to implement the Project. MSI and its Proderecho team promoted and implemented criminal justice reforms in Mexico from July 2004 until September 2007. The following report offers an outline of the work accomplished by Proderecho during this period. INTRODUCTION o HISTORY Mexico’s criminal justice system, inherited from Spain in colonial times, is currently based upon a written inquisitorial system. Mexico’s system has been widely criticized as ineffective, inefficient, and corrupt. It neither offers adequate due process for the accused nor satisfactorily protects victims. Some of the key characteristics of Mexico’s current criminal justice system are: o The system uses judges who are presented written evidence upon which they base their decisions, often with out ever seeing or hearing from the accused; o Investigations are conducted by representatives of the Public Ministry, which additionally serves as the prosecution arm of the government, thereby creating an inherent conflict of interest; o The Public Ministry is required to investigate all claims, without discretion; o Public Defense is provided, but as the laws are written, this assistance may be provided by “a person of confidence”, which has been interpreted widely; thus, public defense, historically, has not been particularly beneficial; o Accused persons are considered guilty until proven innocent; o Pretrial detention is the norm, rather than the exception; and o The vast majority of criminal convictions are based upon oral confessions and are not substantiated by evidence. The above characteristics often serve to mire the truth in obscurity and breed corruption. This system has fostered distrust for the judiciary and does little to deter crime. As a result, Mexico’s crime rate is one of the highest in the world. In past decade, several other Latin American countries, including Chile, Argentina, Columbia, and Costa Rica, have successfully reformed their criminal justice systems from written inquisitorial systems to oral adversarial systems. These reformed systems are more transparent, thus reduce corruption; efficient, thus ultimately save resources; and just, thus they provide due process and protect human rights. While these countries continue to refine and improved upon their reforms, there have been remarkable changes in their citizenry’s respect for the new systems and confidence in their governments. 1 As the above countries modernized their criminal justice systems, Mexico continued to linger in its inefficiency and corruption. As confidence in the judiciary hit an all-time low and crime hit an all-time high in the late 1990’s, more and more calls for reform were heard. In April 2004, President Fox presented Congress with a justice reform package that proposed an oral, adversarial criminal justice system. The package provided for a constitutional change that would mandate the federal government and all thirty-two states to implement the new system. While the proposal never generated serious discussion or movement in Congress, it did bring attention to the issue. The public began to understand just how flawed the system was and, more importantly, that it was feasible to make changes through reforms. The proposal served to galvanize many individuals and groups from diverse sectors, giving birth to the most far- reaching effort to reform the criminal justice system of Mexico to date. PRODERECHO While President Fox was formulating his criminal justice reform proposal, USAID initiated its Rule of Law Project in Mexico, Proderecho. As noted above, MSI contracted to manage this project for USAID in Mexico in July 2004. At this time, Proderecho made the strategic decision to concentrate its efforts on state reforms, where the governments had more flexibility and the ability to pass reforms more quickly than at the federal level. Proderecho continued, however, to work with relevant parties to promote a constitutional reform at the federal level. Goals Proderecho’s stated goal was to advance an integral approach to criminal justice reform at the federal level and in at least seven states. This integral reform would embody as many of the following characteristics as possible: o A system based upon oral advocacy; o Increased access to justice for marginalized communities, especially indigenous populations, women, and children; o Pretrial detention would be the exception, rather than the rule, and would be subject to judicial review; o High standards of due process in accordance with international standards established by the United Nations Justice Principles for Victims;2 o Alternative sentencing which incorporates principles of restorative justice3 and mediation; 1 It is upon these countries’ criminal justice systems and best practices that Proderecho has sought to develop the reforms it is proposing for Mexico, rather than the United States’ justice system. USAID/Proderecho is conscious of the political realities and sensitivities in Mexico regarding assistance and/or input by the U.S. Government. 2 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by General Assembly resolution 40/34 of 29 November 1985. Office of the United Nations High Commissioner for Human Rights Geneva, Switzerland. http://www.unhchr.ch/html/menu3/b/h_comp49.htm o Criminal investigations would focus on obtaining scientific evidence; o Confessions and/or statements by witnesses would be substantiated and not solely relied upon to determined a defendant’s guilt; o The Public Ministry would have discretion to investigate a crime, but would be required to provide a rationale for not pursuing an alleged crime. Proderecho technical staff incorporated these principles into a draft Model Criminal Procedure Code.4 The Model served as the basis for proposed reforms in the states.5 Proderecho’s Strategy to Promote Criminal Justice Reform Proderecho formulated its strategic plan for working towards criminal justice reforms in the first few months of operation in Mexico. The following is a summary of the general strategy Proderecho took to promote criminal justice reforms in the states. The specific approaches and achievements in individual states are presented later in this report. o Candidates for Reform Identified Initially, Proderecho analyzed each state for its likelihood to pursue meaningful reforms. It identified those states where reform appeared possible based upon considerations such as political will and capabilities.6 o Promotion/Education of Reforms Once the determination was made regarding whether to pursue reforms in a particular state, Proderecho began the task of educating political and community leaders, as well as the general public, regarding the integral reforms it would promote. Initially, the programs were designed to motivate people to support changing the criminal justice system. Judging their response, Proderecho would then evaluate whether or not to continue the pursuit of reforms in that state. If the prospect for
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