The full Supreme Court of Justice of the Nation (SCJ) yesterday began an intense discussion about the proper defense and due process in the transition from the earlier [inquisitorial] trial system to the adversarial trial system approved in the 2008 constitutional reform.*
Five of eleven ministers declared themselves in favor of protecting a complainant sentenced--together with another person--for robbery and murder, who had not had a defense lawyer during the proceedings against him, as required by applicable law. Three ministers spoke against this position arguing that the expansion of fundamental rights "cannot be applied strictly''.
The justices discussed whether the broad defense of fundamental rights anticipated under the recent amendment to Article I of the Constitution must include those who were tried before implementation of the new adversarial system (2008). The previous system allowed that a detainee might be assisted in his defense by "a person of trust'' [de confianza] or by a lawyer. The new legislation provides that in order to guarantee a proper defense, the accused must have a lawyer.
The draft opinion, presented by Justice Jorge Pardo Rebolledo, argues that in the case of those who sought amparo [protective injunction], that is, those [sentenced to life] for committing the crime in Apatzingán, Michoacán, on May 23, 2009,
The justices discussed whether the broad defense of fundamental rights anticipated under the recent amendment to Article I of the Constitution must include those who were tried before implementation of the new adversarial system (2008). The previous system allowed that a detainee might be assisted in his defense by "a person of trust'' [de confianza] or by a lawyer. The new legislation provides that in order to guarantee a proper defense, the accused must have a lawyer.
The draft opinion, presented by Justice Jorge Pardo Rebolledo, argues that in the case of those who sought amparo [protective injunction], that is, those [sentenced to life] for committing the crime in Apatzingán, Michoacán, on May 23, 2009,
"did not violate the guarantee of proper defense, since the appellant exercised his right to appoint a person of his trust.''
Margarita Luna Ramos, who together with Luis María Aguilar joined the negative, stated that it is not feasible to grant protection.
"Thousands of procedures would have to be performed. How many defendants had a lawyer to face the Public Prosecutor rather than a trustworthy person who was not [a lawyer]? So, everyone, everyone! The same criterion would have to be strictly applied.''
José Ramón Cossío, Olga Sánchez Cordero, Sergio Valls, Arturo Zaldvar and Alfredo Gutiérrez Ortiz Mena spoke in favor of amparo, noting that one of the aspects that establishes proper defense is to have the possibility of freely choosing as defender one who is a legal professional. In addition to the approved reform, it can be applied later for the benefit of those accused.
Sánchez Cordero pointed out that when a suspect has not relied on the counsel of a professional litigant, the fundamental right to have an effective defense is not fulfilled. Spanish original
*MV Note: In 2008 the Mexican Constitution was amended to change the criminal trial system from an inquisitorial one--in which prosecution and defense submit evidentiary documents to a judge who decides, in private, on the accused's guilt or innocence--to an adversarial system of public, oral trials in which the accused is presumed innocent until proven guilty, and in which prosecution and defense present their arguments and witnesses testify. There are no juries. Judges continue to decide cases. By law the adversarial system is to be implemented by 2016; to date, however, it has been implemented in fewer than half the states.
*MV Note: In 2008 the Mexican Constitution was amended to change the criminal trial system from an inquisitorial one--in which prosecution and defense submit evidentiary documents to a judge who decides, in private, on the accused's guilt or innocence--to an adversarial system of public, oral trials in which the accused is presumed innocent until proven guilty, and in which prosecution and defense present their arguments and witnesses testify. There are no juries. Judges continue to decide cases. By law the adversarial system is to be implemented by 2016; to date, however, it has been implemented in fewer than half the states.