MEXICO'S JUSTICE REFORM EFFORTS: THE

C O N F I D E N T I A L SECTION 01 OF 05 MEXICO 002150 SENSITIVE SIPDIS E.O. 12958: DECL: 12/21/2017 TAGS: PGOV PREL PINR MX SUBJECT: MEXICO'S JUSTICE REFORM EFFORTS: THE ACCOMPLISHMENTS, THE CHALLENGES, THE WAY AHEAD REF: A. 08 MEXICO 1889 ¶B. MEXICO 2034 Classified By: Acting Political Minister Counselor James P. Merz. Reason: 1.4 (b),(d). ¶1. (C) Summary. One year after the signing of security and justice constitutional reforms, progress at the federal level in implementation has been highly uneven. The GOM has been quick to begin work on the security portions of the reform, seeking to expand police and investigative authority and to reduce procedural requirements for those same bodies. It has been much slower on moving to an oral and adversarial justice system. Most observers commonly cite a number of challenges Mexico must face in order to more expeditiously implement justice reform at the federal level. Meanwhile, some states have demonstrated more rapid progress. Continued investment of significant resources is necessary to achieve real change given the complexity, size, and long-term nature of the task at hand. The U.S. Embassy is working at the state and federal level to assist these efforts and to help promote security reforms and a stronger, modern justice system. End Summary. Justice Reform: One Year Out -------------- ¶2. (C) In June 2008, President Calderon signed into law a number of security and justice constitutional reforms, which included a mandate to transform and modernize the criminal justice system (ref a). Jose Caballero, an academic at the Center for Investigation and Economic Instruction (CIDE) who has participated in the reform process, explained to Poloff on July 15 that the reform can be separated into two categories: 1) "security" measures aimed at providing greater authority to investigators and police; and 2) the "justice" side reforms that seek to alter judicial proceedings and create an oral, adversarial, and transparent system. The security measures include amendments granting federal police broader investigative authority, expanded powers for investigators, and a civil asset forfeiture procedure. The justice reforms mandate the presumption of innocence, alternative dispute resolution mechanisms, and evidence-based oral trials in an attempt to improve the transparency of the country's justice sector and increase the confidence of Mexican citizens in the system. The law requires an eight year timeline for the implementation of the changes at the federal and state levels. ¶3. (C) One year after the signing of the reforms, federal-level implementation has been highly uneven. The federal government was quick to begin work on the security portions of the reform, seeking to expand police and investigative authority and to reduce procedural requirements for both. The GOM has passed legislation revamping the Federal Police and giving police and investigators greater judicialized wiretapping powers. Both the Secretary of Public Security (SSP) and the Attorney General's Office (PGR) have actively sought U.S. assistance in training federal investigators (9,000 for the SSP and 1,500 for PGR),as well as extensive leadership and specialized weapons and tactics training. The Mexican Congress last session passed a modified version of a bill proposed by Calderon creating a civil mechanism for asset forfeiture in organized crime and other specific types of cases. Congress also passed a measure to create specialized "judges of control" on duty 24 hours a day to more quickly address requests by investigators for arrest and wiretap warrants. Little Progress on Justice Reforms at the Federal Level -------------- -------------- ¶4. (C) The one-year anniversary of the signing of the amendments has prompted both civil society and academics to publicly assess the federal government's progress toward implementation. The Merida Initiative-funded Citizen,s Participation Council's first national forum in Cuernavaca (ref b) and the Citizen's Network for Security and Justice's national forum on "Security with Justice" both provided environments for the discussion of justice system improvements. Participants at the "Security with Justice" MEXICO 00002150 002 OF 005 event, sponsored by businessman and security activist Alejandro Marti, reached a consensus that the real work of revolutionizing Mexico's criminal judicial system has yet to be done. ¶5. (C) Broadly speaking, civil society organizations and opposition political leaders complain that the only substantive advancement in realizing oral trials at the federal level has been formalizing the appointment of Felipe Borrego as head of the Coordinating Council for the Implementation of the Justice System around the one-year anniversary mark. This Coordinating Council also includes a representative from the Chamber of Deputies, the Senate, the Federal Judiciary Council, the Supreme Court, the secretaries of Government and Public Security, and the PGR. Falling under Secretary of Government (SEGOB) and charged with overseeing the implementation of the reforms at the state level, Borrego told Emboffs earlier this month that his council will also supervise and coordinate efforts to transform the federal justice system, with PGR and other security components responsible for making required changes to their own organizations once Congress passes the necessary implementing legislation. ¶6. (C) The assessment of leaders of civil society organizations that little has been done to implement the justice-side reforms at the federal level is probably fair. Caballero noted that the administration appears disinterested in starting the real work in developing an evidence-based, oral trial system, and major improvements probably will have to wait until after the 2012 presidential elections. Nevertheless, he indicated that the formal installation and funding of Borrego's council are important developments. Caballero said that Borrego has interesting ideas and a strong team behind him. Aside from SEGOB, U.S. legal experts visiting Mexico to meet with various sectors involved in the reform said the Supreme Court has at least developed a strategy for implementation. Greater Commitment by Some States -------------- ¶7. (C) Despite apparent federal government reticence, many states have demonstrated themselves to be far more proactive in devising their own reform process. Caballero expects that the process will be highly federalized -- states draft and implement their own procedures, which federal level leaders should then look to as models. States that have already passed comprehensive reforms include Baja California, Chihuahua, Durango, Morelos, Oaxaca, and Zacatecas. Mexico State, Nuevo Leon, Puebla, and Veracruz have passed limited reforms, while Aguascalientes, Jalisco, and Tamaulipas have bills pending in their local congresses. Hidalgo and Tabasco are drafting codes, and Chiapas, Coahuila, and Sonora are building political consensus. The remaining fifteen of the 31 states have either only expressed interest in the reforms or have yet to move forward for the May 2016 implementation deadline. ¶8. (C) Each state thus far has developed a unique model and implementation program depending on its own circumstances. Caballero praised Chihuahua for being the most advanced. Chihuahua was the first to pursue a judicial transformation, has focused significant resources on training investigators to support the new evidence-based system and to meet due process thresholds, and has made broader use of alternative justice mechanisms. Chihuahua State Governor Baezas reported at the "Security with Justice" forum that of 158,347 cases in the state courts since January 1, 2007, 40 percent were resolved using alternative justice measures such as mediation, 23 percent were archived for lack of information, 28 percent are currently in the investigative phase, 4.5 percent are currently being tried, 2 percent have been sentenced, and 55 cases total have gone through an oral trial process. Caballero mentioned Oaxaca as a useful case study for its efficient use of scant resources and its attempt to mesh the new code with the indigenous justice system. Along the same lines, the NAS Director recently observed an indigenous trial in Chiapas and found it efficient and effective in using traditional leaders and a known and respected justice mechanism. Caballero praised Durango for MEXICO 00002150 003 OF 005 taking implementation seriously and for setting a very ambitious time table but wondered if, in fact, it might be a bit too optimistic and rushed. Caballero also cited Baja California as having done good work by naming a talented lead to its reform coordinating council. ¶9. (C) With a number of states still in the discussion stage -- or even farther behind -- Cabellero suggested that the recent completion of a model procedural code by the National Commission of Supreme Courts, a coordinating council of the state supreme courts, could help to expedite the process. Drafted by a team of judges and experts and approved by all the Chief Justices of the state courts, the model code is relatively well written and may save local congresses time and effort as they begin discussing the judicial transition themselves. Obstacles to Judicial Reform -------------- ¶10. (C) Most observers commonly cite a number of challenges Mexico must face in order to more expeditiously implement justice reform nationwide. These include: 1) minimal political will; 2) poor understanding by most Mexicans of the benefits of the reform; 3) lack of resources; 4) insufficient institutional structure or expertise; and, 5) lack of implementing legislation. --LACK OF POLITICAL WILL. Perhaps the most consistent concern expressed by justice reform advocates and analysts has been the lack of political will on the part of the federal government to work seriously on reform implementation. As Caballero noted, the Calderon administration probably views the current security environment as one in need of immediate police and law enforcement change, but is hesitant to devote too many resources to a major structural change that will only bear long-term fruits. Borrego has reported to Emboffs that he has received little, if any, guidance from the federal government. Academics, civil society groups, and USAID-funded technical consultants, ProDerecho, have noted that a key obstacle to reform is often the justice system participants themselves. Judges, prosecutors, and public defenders fear they will be replaced in a new system by younger, better educated graduates trained in the new framework. Moreover, Gerardo Laveag, Director General of the National Institute of Criminal Sciences (INACIPE) told NAS and AID Directors that judges are highly resistant to the reform, as they do not want the transparency and open accountability the new system will require. The judiciary, he said, is highly politicized, with more cases solved by political dictat than evidence, and the judges are highly vested in maintaining the status quo. Lastly, PGR, perhaps reflecting a personal weakness of Attorney General Medina Mora, tends not to be as proficient in strategic planning as SSP, often lacking written roadmaps to guide efforts. Up to this point, PGR has not been open with Emboffs in providing pre-reform baseline data, nor has it been transparent in offering verbal support of the changes to encourage state Attorney General offices to move forward. --PUBLIC AND PROFESSIONAL MISPERCEPTION OF REFORMS. Experts on the reform process continually cite a poor public relations effort, particularly by the federal government, in convincing Mexicans of the benefits of an adversarial and oral system. Caballero noted that most people don't understand the objective of the reform and are not expecting significant changes to their daily lives as a result. Prosecutors, defense attorneys, and judges alike tend to look at the reform effort as a threat against their job security. Additionally, the availability of alternative sentencing, alternative dispute settlement, and bail release has convinced many observers that the new code is softer on criminals rather than tougher, and experts note that in Mexico there is a prevalent culture that prefers the innocent be wrongly incarcerated rather than one guilty person go free. Moreover, justice reforms often have been blamed for security problems, such as in Chihuahua, where some opponents of the new system accuse it of being responsible for the state's escalating levels of violence. MEXICO 00002150 004 OF 005 --LACK OF RESOURCES. Cabellero noted that Borrego's current budget is quite small and establishing a new federal government entity can be an uphill battle. Moreover, Congress did not officially approve of Borrego's appointment and the Coordinating Council itself until June 2009, meaning that Congress could not until then appropriate funds in support of Borrego's work. His official travel to the states earlier in his tenure probably came out of SEGOB's pocket. The federal government has been slow to allocate funding to involved entities, and SSP consistently beats PGR in the resource war. The breadth and complexity of the reform program requires a significant investment funding, human capital, and the construction of new physical infrastructure, such as courthouses and facilities for alternative case settlement. Academics and state governors who have initiated reform efforts, notably those of Chihuahua, Nuevo Leon, Jalisco, Morelos, Mexico, and the Federal District, complained at the Security with Justice Forum that the federal government has been remiss in not assigning more funding to state-level reform projects. --LITTLE INSTITUTIONAL STRUCTURE OR EXPERTISE. Even with larger budget resources allocated to implementation, a lack of expertise and infrastructure complicate the states, ability to efficiently spend funds. Caballero asserted that even a significant infusion of funding to the states may not help expedite the reform process since states have little institutional capacity to absorb the new funds. Money spent training judges and prosecutors, for example, is only helpful if the states can identify experts to provide the training. Caballero said that several states are probably underfunded, but they are not at the point where they can accurately judge what kinds of resources they actually need. Moreover, while some academics have been proactive in advocating for the reforms, observers have noted only minimal participation from major universities in reform implementation. Most universities tend to be more conservative, and professors are, in general, not fond of the new codes. Universities have also been slow to determine what the new curriculum requirements should be for those entering the legal profession under the new system. --LACK OF IMPLEMENTING LEGISLATION. Perhaps an easier challenge to address is the lack of important secondary legislation that provides the legal framework for implementing reform measures. Submitted last session to Congress, the new criminal procedure codes which allow for the application of the constitutional changes in the trial system are still languishing in committee, purportedly for political reasons. It is unclear how much of the delay is due to squabbling between the National Action Party (PAN) and the Institutional Revolutionary Party (PRI),which submitted the proposal. Observers note that the new political dynamic in the Chamber of Deputies following the midterm elections may actually expedite the passage of the codes next session. Next Steps -------------- ¶11. (C) Mexico's justice transition is a highly complex process that requires the continued investment of human and technical capital, physical infrastructure, sustained funding, and political will to see it fully implemented. Most experts agree that the country was irrevocably set on a path to the new system when it committed to the constitutional changes in 2008. Moreover, observers note that discussions on the reforms within and outside government circles rarely is cast in terms of whether or not they should be implemented at all -- the country appears to have moved past that debate and understands that change in some way, shape or form is inevitable. Nevertheless, the commitment to and political consensus about the kind of time, energy, and resources dedicated to the transformation will shape the outcome of the efforts and will determine whether or not Mexico's justice system is fundamentally altered and improved, if changes are made in name and form only, or if they are all completed eight years down the line. ¶12. (C) Mexico's government entities will have to address the obstacles slowing the implementation process identified above in order to achieve meaningful and lasting change. The U.S. MEXICO 00002150 005 OF 005 Embassy is working at the state and federal level to help promote security reforms, a culture of lawfulness, and a stronger, modern justice system. We are finding an increasing number of open doors in the reform arena, with a rising number of requests for training, exchanges, and mentoring by U.S. officials from numerous judicial officials on behalf of themselves and their organization. U.S. and international assistance will be critical to the success of this effort, both in providing successful models for change and reform, and for playing the role of honest broker to and between GOM entities. It is a long-term endeavor, however, that will require a concerted effort of five to ten years to fully transform the system. 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 / FEELEY