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Cablegate: Mexican President Calderon Signs Criminal Justice

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DE RUEHME #1889/01 1722222
ZNR UUUUU ZZH
R 202222Z JUN 08
FM AMEMBASSY MEXICO
TO RUEHC/SECSTATE WASHDC 2297
INFO RUEHXC/ALL US CONSULATES IN MEXICO COLLECTIVE
RUEAHLA/DEPT OF HOMELAND SECURITY
RHMFIUU/CDR USNORTHCOM
RHMFIUU/CDR USSOUTHCOM MIAMI FL
RUEATRS/DEPT OF TREASURY WASHINGTON DC
RHEHNSC/NSC WASHINGTON DC

UNCLAS SECTION 01 OF 03 MEXICO 001889

SIPDIS

AID

E.O. 12958: N/A
TAGS: PREL PGOV PHUM SNAR KCRM MX
SUBJECT: MEXICAN PRESIDENT CALDERON SIGNS CRIMINAL JUSTICE
AND PUBLIC SAFETY CONSTITUTIONAL REFORMS

1. SUMMARY: On Tuesday June 17, 2008 at 8:30am, President
Felipe de Jesus Calderon Hinojosa signed the decree
promulgating constitutional reforms for criminal justice and
public safety. The amendments must now be published in the
official gazette, and will become effective 30 days after
publication.

2. BACKGROUND. On February 26, 2008, the Chamber of Deputies
approved the Senate version of the constitutional justice
reforms (463 votes in favor, 6 against and 1 abstention).
Mexico requires Constitutional reforms be ratified by at
least 17 state legislatures (50% plus 1). To date, 23 states
have ratified the reforms and no state has rejected them.
The remaining states have not voted on the reforms because
their legislatures are not in session. President Calderon
announced that since 23 states exceeds the majority required
for ratification, that he would sign said reforms into law.


KEY ASPECTS OF CONSTITUTIONAL REFORMS


3. Ten Articles of the Mexican Constitution (Articles 16, 17,
18, 19, 20, 21, 22, 73, 115 and 123) were amended. The rights
of due process are inherent, in that no person may be
sentenced before a final judgment has been entered at a fair
trial; and that all pre-trial hearings must be heard by a
judge pursuant to the principles of orality (defined as
transparency, speedy trial, continuity, and confrontation of
witnesses).


4. The reforms will facilitate the use of better
investigative techniques, with greater emphasis on the
collection, analysis, and presentation of scientific
evidence. There will be less reliance on confessions as a
basis for conviction, which should lessen the motivation to
obtain confessions by any, including, illicit, means.
Confessions obtained through illicit means, i.e. torture,
will not be admissible. Prosecutors will direct
investigations, but police will have investigative powers as
well. Prosecutors will have the power to designate which
federal and/or state police force(s) will conduct
investigations under their oversight and guidance.


5. All police forces must adhere to strict certification
procedures which will be established in the secondary laws
governing them.

6. The constitutional justice reforms introduce alternative
means of resolving lesser criminal cases. Under the existing
system, all cases proceed to trial regardless of community
impact, and the courts are notoriously congested. The
introduction of alternative means of disposing of cases will
permit prosecutors to focus their attention on major crimes,
such as those perpetrated by organized crime related to
narcotics and trafficking in persons.

7. The reforms also expand the use of alternatives to
pre-trial detention. As in the U.S. system, Mexican judges
will determine whether or not a defendant may be released on
bail based on factors including the seriousness of the crime,
flight risk, propensity to perform another delinquent act,
and so forth.


8. Under the constitutional justice reforms the public
defense will be strengthened. The reforms dictate that the
public defense will earn the same salary as the prosecutors.
(At the state level this is more meaningful since most state
public defenders do not earn the same salaries as state
prosecutors. However, at the federal level, the public
defense earns more than most prosecutors.)


9. Post-sentencing guidelines. Judges will preside over the
felons in all post-conviction issues - including ensuring
that sentences are complied with, and that no felon will
over-serve his/her sentence. Also, it foresees the active
participation of victims in criminal cases.


10. Finally, the Constitutional reforms provide for

MEXICO 00001889 002 OF 003


"civil-like" forfeiture of illicit assets. Under the
previous law, assets can be seized only following the
criminal conviction of the owner or in cases of abandonment.
Under the reforms, a new asset forfeiture law can be passed
to allow for ownership of illicit assets to be extinguished
and transferred to the government in more expeditious and
less onerous proceedings than a criminal trial.


Human Rights Concerns


11. Human Rights Organizations criticized the reforms for
permitting the detention of defendants accused of having
committed an organized crime, of up to 80 days - that is,
they can be detained for 80 days while prosecutors complete
these complex investigations. However, such temporary
detention prior to being formally charged must be approved in
advance by a judge. This 80 day provision is actually less
than the 90 days allowed by the old system.


The Old System


12. Although legal experts agree that the Constitutional
Assembly of 1917 intended to establish an oral, adversarial
criminal justice system, this did not occur. The previous
justice system defied reform efforts and remained
inquisitorial and secretive system, characterized by an
inherently ambiguous design. The system relied far more
heavily on confessions than on any other form of evidence;
police and the local, state, and federal levels did not have
the capacity to collect and analyze forensic evidence. The
flaws contributed to enormous public distrust of the entire
justice sector.


13. The Constitutional reforms as signed by President
Calderon are without a doubt the most important reform in the
field of justice and public safety since 1917.


The Reform Timetable


14. Although Mexico has up to eight years to transform its
criminal justice system into an oral adversarial criminal
justice system, there are several aspects of the reforms that
will become effective in 30 days.


15. All police are now eligible to investigate crimes.
Unfortunately, the lack of preparation, regulations to guide
the police and coordination between police departments, will
make it difficult for prosecutors to build a solid case. The
U.S. Embassy plans to support Mexican reformers as they
provide technical assistance and training to police units,
not just criminal investigators.


16. Although all articles regarding organized crime are
effective immediately, secondary legislation will be
necessary prior to implementation. The GOM has requested
technical assistance from the USG on issues such as recording
telephone conversations and asset forfeiture.


17. Organized crime suspects may be detained in Federal safe
houses for up to 80 days. Mexican states have been given
authority to determine the serious state crimes (such as TIP,
homicide, rape) wherein state authorities can place
defendants under home arrest for up to 40 days when they are
suspects of these said serious offenses.


18. Prosecutors can request wiretap warrants for any method
of communication (telephone, internet, etc.). Prosecutors
will have more efficient and an expedited means of obtaining
these warrants. The reforms also allow admissibility of
consensual one-party recordings without need for a warrant.
Federal judges need to be trained so that the warrants can be
rapidly obtained while placing the burden and responsibility
on the prosecutors in order to minimize abuse of these

MEXICO 00001889 003 OF 003


practices.

Mexican States, experience in Judicial Reforms

19. The 8 states that have begun implementation of oral,
adversarial codes of criminal procedure (Baja California,
Chihuahua, State of Mexico, Oaxaca, Puebla, Morelos, Nuevo
Leon and Zacatecas) will need to make certain modifications
(some less than others) to their codes, prior to officially
becoming the first states to abide by the new Federal
Constitution. Chihuahua is in the best of circumstances since
it will need only to modify and create a civil service for
its public defense and to reduce its standard of proof to
probable cause in order to detain and/or indict an
individual.

20. CONCLUSION. Reforms will impact the federal government,
the Federal District and all 31 states. All entities will
have to reform their code of criminal procedures within the
next eight years. USAID has provided technical assistance to
five states (Chihuahua, Oaxaca, Morelos, Baja California and
Zacatecas) that allowed them to experiment with judicial
reforms. Their experience helped inform the national
Congress and the Administration as they drafted and passed
the national judicial reforms. The states and their
experience will now serve as a model for the rest of the
country. The reforms are an immense task that will require
massive investments in technical assistance, training and
construction as people, buildings and institutions meet the
requirements of the judicial reforms. It will be eight years
of intensive work which will require enormous amounts of
human and financial resources.

Visit Mexico City's Classified Web Site at
http://www.state.sgov.gov/p/wha/mexicocity and the North American
Partnership Blog at http://www.intelink.gov/communities/state/nap /
GARZA

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