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Presumption of innocence: Changes in the justice system

By Antonio De Jesús Aguado

Mexicans and expats alike seem to have trouble understanding the new criminal justice system. Misinformation has led them to assume that those responsible for a crime are arrested by police and after 48 hours are released by the Ministerio Público (District Attorney’s Office, MP) on bail, which frees them to commit more crimes. That information is incorrect and has its basis in the Ley del Proceso Penal for the State of Guanajuato.

René Urrutia, the district attorney in San Miguel, explained to Atención that the new adversarial system, already in force in the state, comes from a constitutional reform published in June 2008, which was enacted in the state in September 2011. This system is completely contradictory to the previous one—which is still used in several states in the country—because it assumes innocence until guilt is proven. Urrutia said this new trial system is aimed at improving the justice system and the penal process.

Preventive prison

The new law states that the personal liberty of every person must be respected; in other words, nobody can be imprisoned until it has been proved that the person committed a crime or participated in it. The DA commented that the previous “inquisitorial” system, in most of the cases, had prison as its main resource to guarantee that alleged criminals would be subject to the process. This measure, according to Urrutia, led to CERESOs (Central Facilities for Social Rehabilitation) filling with

people in some stage of the legal process, which sometimes could last months or years. In the end, if the accused was found innocent, the only recompense from the government was summed up by a popular phrase: “disculpe usted” (excuse me).

To imprison somebody, said Urrutia, that person must have been arrested in flagrante, at the moment of committing a crime. This can also hold true if after committing or participating in a crime, the accused tries to flee and is detained. Also, a person can be arrested if he is identified by others as responsible for the crime and has, for example, stolen goods in his possession.

Consequently, when those arrested and detained by local police officers are handed over to the Ministerio Público, it must be shown that the detention was performed according to the law and that flagrancy exists. If not, the arrest is deemed illegal, and the alleged offender is set free.

If the arrest is legally correct, the MP holds the accused for 48 hours, which is the time that it will have to conduct an investigation. After the investigation, the MP decides if the suspect must be freed or sent before a judge, who must make the decision of releasing him or imprisoning him for a certain period of time.

The law states that the judge must imprison those who are accused of committing certain types of crimes: intentional homicide, sexual assault, kidnapping and serious crimes committed violently using explosives or guns. Suspects can also be sent to preventive prison for prostitution, corruption of minors and crimes against the public health, committed against groups or individuals.

Cautionary measures

Urrutia explained that when a crime is not classified as serious, the judge can ask for the release of a detained person, under cautionary measures. He made it clear that if those involved in crimes are freed, it does not mean that they are not facing a legal process. “They are facing it, but they are not in jail,” he remarked.  These measures are designed to subject them to the process and to prevent those involved from escaping. Some of those measures include restricting a suspect from leaving the city, state or country. The accused must also present himself periodically before the authority whom the judge specifies. An electronic locator can also be attached to the accused; this has not been done due to a controversy about human rights. The law also allows for cautionary measures, such as house arrest and suspension of working or salary.

If a robbery is not a serious crime due to the way that it was committed and there was no violence, and in addition the judge does not have reason to believe the person will leave the city or avoid trial, then the person may be released.

“That is what has been occurring, and people think that they are released after paying a bail of 700 pesos or because they give money to the MP. If people are free, it does not

mean that they are not facing the justice process,” said Urrutia.

Once the person enters the judicial process, the MP conducts more investigations, and when they have enough information it is handed over to a judge, who can request a complementary investigation, which can last two to four months or more, depending on the time the judge allows. Later, the oral trial is prepared.

The mediation process

When people go to the MP to file a criminal complaint and it seems the case could be resolved by a mediation process, this is offered immediately. If the victims accept it, then, before opening up a prosecution investigation file, a case number is generated and processed in the Specialized Agency of Mediation, which works with the accused and the victim to reach an agreement out of court. If an agreement is reached, the case is closed and the penal process is cancelled. This mediation process can occur at any phase of the legal proceedings, if both parties wish it.

The DA made it clear that there are not enough personnel in the State Attorney General’s Office to be able to solve all the controversies that occur in the state. For that reason, sometimes the mediation process is the best option. If that happens, then the whole system can focus on the most serious cases.

The accused has the right to be freely assisted by an interpreter, provided by the state, if he or she cannot understand or speak Spanish. The accused is also allowed to appoint another person as an interpreter, but they will not be paid by the government.

The State Security Department of Guanjuato told Atención that in Guanajuato there are 10 CERESOs, located in San Miguel de Allende, Pénjamo, Celaya, Irapuato, Salamanca, León, Guanajuato, Valle de Santiago, Irapuato and San Felipe. The number of prisoners is 4,014, who generate a daily expense per capita of 157.70 pesos. The department did not address the question of whether this new legal system would help decrease the number of prisoners in the state.

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