JUSTICE REFORM SEASON OPENS

UNCLAS SECTION 01 OF 03 MEXICO 004881

SIPDIS

SENSITIVE
SIPDIS

STATE FOR WHA/MEX, INR, INL, DRL

E.O. 12958: N/A
TAGS: PGOV PREL ECON MX
SUBJECT: JUSTICE REFORM SEASON OPENS


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ACCORDINGLY.


1. (SBU) Summary: Proposed constitutional changes that
briefly became the focus of criticism by human rights lawyers
last week are the first step in a protracted effort by the
GOM to modernize the administration of justice in Mexico by
granting police and prosecutors greater authority and a wider
array of tools to investigate and prosecute serious crimes )
particularly organized criminal activities.


2. (SBU) Some human rights lawyers believe the changes will
allow prosecutors excessive discretion in pursuing such
investigations; several of the proposals in fact offer
prosecutors greater independence from judicial oversight in
using such tools as house arrest (&arraigo8),search
warrants, wiretaps and interceptions of private
correspondence. GOM contacts argue, however, that the
changes are overdue, much-needed in light of Mexico,s
security situation, will strengthen the rights and
protections for victims and accused alike and preserve
appropriate judicial oversight. While there is broad
consensus here that reforms are vital, there are several
proposals being floated during the current legislative
session, and the outcome of the reform effort remains
uncertain. End Summary

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Harsh Criticism Leveled During Citizens Forum
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3. (SBU) The GOM proposal, presented to the Senate in March,
became the focus of brief debate on September 4 at a
Citizen,s Forum on Security and Democracy widely attended by
academics, legal specialists and legislators. At the forum,
the president of the Inter-American Human Rights Court,
Sergio Garcia Ramirez, charged that the government was
seeking to create a dual penal system to differentiate
ordinary criminals from what he called &enemies of the
state.8 Alluding to rumors the government was
contemplating a separate court system to try organized crime
cases, Garcia Ramirez, (a long time PRIista and former
Attorney General under Miguel de la Madrid) lamented the
&Guantanamization8 of Mexican justice.


4. (SBU) The proposal, however, does not contemplate
creation of new institutions. Embassy officers looked at the
package sent to the Mexican congress and discussed it with
contacts in the Attorney General,s office and SSP. The
initiative is ambitious and offers up a large number of
changes to key elements of Mexico,s constitution that will
provide the basis for the eventual move from a
mixed/inquisitorial to an adversarial system of justice.

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Core Reform Elements
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5. (SBU) The core elements, however, are designed to make
the current system more efficient in the near term and give
police and prosecutors additional tools to pursue major
criminal cases. Among them:


A. Giving police investigative powers to independently
develop criminal cases. Federal police currently have no
such authority, and must pursue investigations under the
strict supervision of the Attorney General,s office. The
reforms would allow law enforcement agencies to function more
closely along the lines of their U.S. counterparts, with
police initially developing cases independently before
turning them over to public prosecutors to pursue in the
courts.


B. Granting judges and prosecutors additional powers to
issue &injunctive8 or provisional measures in an
investigation to preserve the integrity and continuation of
the proceedings, protect victims, rights, and preserve the
public interest. Such measures would include a fixed period
(30 or 60 days) of house arrest (&arraigo8) of suspects to
allow the prosecution time to prepare complex cases for
presentation to the court. In organized crime (major
narcotics trafficking) cases, prosecutors would be allowed to
issue the house arrest orders, with subsequent judicial
review. Currently, arraigos are utilized in organized crime
cases only with prior judicial approval. Under the proposed
changes, arraigos also would be allowed for other serious
crimes when issued by a judge only. Also, in organized
crimes cases only, prosecutors would be authorized, based on
exigent circumstances, to issue search and seizure warrants,
including wiretap orders, without prior judicial

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authorization. Again, however, such actions would be subject
to subsequent judicial review. Finally, to protect witnesses
and informants in organized crime cases, judges could order
that their names and personal data be kept confidential.


C. Establishing an array of victims, rights, including the
right to interface with police and prosecutors in the
investigation of a case, the right to seek restitution in a
timely manner, and the right to avoid testifying in the
direct presence of the accused in certain criminal cases such
as rape and kidnap.


D. Ensuring defendants right to adequate representation.


E. Calling on legislators to better differentiate between
misdemeanors and &minor8 and "major8 felonies, to reduce
the number of defendants in pre-trial custody. For example,
certain non-violent white collar offenses would be removed
from the list of non-bailable offenses, and a large number of
lesser offenses would be subject to summons or subpoena to
appear in court rather than arrest warrant. To relieve
over-crowded dockets, the package also calls for abbreviated
trials, guilty pleas, alternative dispute resolution
mechanisms, and greater discretion to prosecutors to dispose
of cases that do not merit prosecution.


F. Establishing civil-like asset forfeiture along the lines
of Colombia,s law on extinguishing property rights
(&extincion de dominio8),while respecting the property
rights of innocent parties. The current law allows only for
forfeiture following a criminal conviction or abandonment,
and seized assets often sit for years awaiting final
judgment, loosing value through neglect and deterioration.


G. Authorizing the federal legislature to pass criminal,
criminal procedure, and sentencing codes with nationwide
application to ensure uniformity and fairness in the
application of the criminal laws.


H. Providing for removal of police and prosecutors for
corruption and other misconduct, as well as establishing
guidelines regulating use of confessions to prevent police
abuse and shoring up their use as evidence

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Due Process Concerns
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6. (SBU) Some civil society representatives here lament what
they consider the government's narrow focus on granting
police and prosecutors broader powers to combat organized
crime, saying a more comprehensive overhaul of Mexican
administration of justice is needed. They also worry about
the lack of judicial oversight in the use of new
investigative tools. One human rights lawyer we contacted
said the proposals would allow the police and prosecutors the
&right to hold anybody in custody without requesting a
warrant from a judge, solely on the suspicion that he has
something to do with organized crime.8 The lawyer
complained that the definition of organized crime in Mexico
remains vague and subject to political manipulation.
(Comment: The Mexican Organized Crime Law expressly defines a
short list of crimes and corresponding articles of the penal
code that may constitute organized criminal activity. In
practice, the vast majority of organized crime cases involve
the activities of major narcotics trafficking cartels.) Other
rights activists have reacted to rumors the GOM was
contemplating a special, possibly secret, court system, to
try organized crime suspects.
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Countered by GOM contacts
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7. (SBU) SSP and PGR officials with whom Embassy officers
spoke flatly denied that the GOM is contemplating special
courts. The proposal under consideration offers no such
alternative system. Our contacts acknowledge, however, that
the GOM is examining designating a limited number of regular
federal district judges, possibly in the capital city, to
hear organized crime cases in the existing court system. The
object is to make it easier provide for the security for
those judges and better insulate them from intimidation and
undue influence. Such specialized courts are used in many
countries, including the U.S,and have proven their worth by
improving the administration of justice through the greater
focus and level of expertise they bring to highly complex
prosecutions.


8. (SBU) As for increased prosecutorial powers, Mexican
government officials have stressed their limited application

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to organized crime cases and argue that they are necessary to
effectively prosecute drug cartel members who flaunt and
manipulate the current system. Such officials also point to
the fact that the new powers are subject to subsequent
judicial review. To the GOM, the proposed changes strike a
balance between judicial oversight and the need to pursue
time-sensitive investigations quickly and efficiently in
major cases.


9. (SBU) Comment: These points and others are likely to be
debated in coming weeks, once the legislature disposes of the
more immediate issues of fiscal and electoral reform. At the
citizens forum a multiparty panel of Senators agreed that
penal reform was vital and promised to begin fashioning a
comprehensive package by November. The trouble is, there are
a number of extremely ambitious initiatives currently being
floated, which bear little resemblance to the GOM proposal.
Our PGR contacts worry these will bog the reform effort down
in a lengthy debate over priorities at a time when
prosecutors need additional authorities to more aggressively
combat narco-crime. End comment.


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